Horn of Africa historical (pre-2011): catch all thread

[Tom Odom]

I saw this one today on the Ebird and wanted to post it here. Mr, Salopek's article in this gets a thumbs up. Rendition is controversial. I personally question its effectiveness when balanced on the classic scale of risk versus gain. Large scale proxy rendition, especially when the proxy has a dubious human rights record, is asking for the scale to plop solidly on the risk side with little hope for gain. This is very much a case of creating more enemies than you catch.

Tom

Renditions fuel anger against U.S.
By Paul Salopek | Tribune correspondent
December 4, 2008

NAIROBI, Kenya—Clement Ibrahim Muhibitabo is one of the forgotten ones.

So is Ines Chine. So is Abdul Hamid Moosa.

Rwandan, Tunisian and South African citizens respectively, the three Africans are among the victims of one of the largest if most obscure rendition programs in the global war on terror: the mass arrest, deportation and secret imprisonment of some 100 people who fled an invasion of Somalia last year—a roundup that even included women and small children.

The snatch-and-jail operation was carried out by U.S. allies Kenya and Ethiopia but involved CIA and FBI interrogators, say European diplomats, human-rights groups and the program's many detainees.

[William F. Owen]

Rendition is controversial. I personally question its effectiveness when balanced on the classic scale of risk versus gain. Large scale proxy rendition, especially when the proxy has a dubious human rights record, is asking for the scale to plop solidly on the risk side with little hope for gain. This is very much a case of creating more enemies than you catch.

...and what of a "proxy" with a good human rights record? Other than that, I concur. Rendition is not good, but I have a very strong suspicion that the popular version of events may lack some critical detail.

[Tom Odom]

...and what of a "proxy" with a good human rights record? Other than that, I concur. Rendition is not good, but I have a very strong suspicion that the popular version of events may lack some critical detail.

No disagreement on the wider defintion of proxy; just in this case, a more limited one applied

And no doubt the devil is in the details. But in the world of IO (I knew you would love that Wilf), the popular version wins and I believe that is what Mr. Salopek was reporting.

Tom

[William F. Owen]

But in the world of IO (I knew you would love that Wilf), the popular version wins and I believe that is what Mr. Salopek was reporting.

OK, I'll patch this flesh wound to my genitals and get back to you..

[jmm99]

Tom Odom
Rendition is controversial. I personally question its effectiveness when balanced on the classic scale of risk versus gain. Large scale proxy rendition, especially when the proxy has a dubious human rights record, is asking for the scale to plop solidly on the risk side with little hope for gain.

In this case, the US received bad PR simply because FBI and CIA officers allegedly interviewed some of the detainees. We don't read that US involvement, in the Kenyan-Ethiopian "sweep rendition", is "unclear" until the last sentence of the article - and that, only after we are reminded of an individual 2002 rendition from Kenya to Gitmo.

(from article)

Rwandan, Tunisian and South African citizens respectively, the three Africans are among the victims of one of the largest if most obscure rendition programs in the global war on terror: the mass arrest, deportation and secret imprisonment of some 100 people who fled an invasion of Somalia last year - a roundup that even included women and small children.
.............
At least 150 suspects from more than 18 countries ended up being shunted into Kenyan jails, says Human Rights Watch, an international humanitarian group. More than 100 were later loaded, handcuffed and blindfolded, onto chartered airliners and flown secretly to Ethiopia for months of further questioning.

"We had no access to lawyers, no contact with embassies, no phone calls," said Moosa, 42, a South African accountant who says he traveled to Somalia to look into the possibility of charity work for the country's Islamic movement.

"I was kept in solitary for a month, shackled ankle and feet, night and day," said Moosa, who spent almost five months in Ethiopian custody. "The Ethiopians would come collect me, blindfold me and drive me to some apartment in Addis. And the Americans would be there waiting behind a desk, asking me over and over about my terrorist connections."
............
The most high-profile case to emerge from the clandestine African renditions was Mohammed Abdul Malik, a Kenyan accused of participating in the bombing of an Israeli-owned hotel in the Kenyan port city of Mombasa in 2002. Abdul Malik was caught after fleeing from Somalia. Deemed too important for jail in Ethiopia, he was secretly expelled to Guantanamo Bay.

"The police handed him over to the Americans without giving him a single hour in a court," said Mariam Mohammed, the suspect's sister. "We still don't know the evidence against him."

How much Washington actually steered the sprawling arrest and deportation operation - a covert counterterrorism sweep second in scope only to the deportation of more than 200 terror suspects out of Afghanistan immediately after the fall of the Taliban - remains unclear.

What we have here is really "Extraordinary Rendition", rather than Ordinary Rendition as practiced before we got into 9/11, Gitmo and "War Crimes".

Ordinary rendition was simply a convenience where law enforcement officials in one country, if permitted by their interpretation of their domestic law, would hand over a criminal in their custody without requiring the requesting country to petition for formal extradition.

Like any good thing, it can be abused and turned into a bad thing.

The 2005 Report for the All Party Parliamentary Group on Extraordinary Rendition, which is here, succinctly lays out the I Law standard.

[Tom Odom]

Agreed on the abuse thing and thanks for the legal definitions


But I will repeat what I first said to Wilf, if Mr Salopek got it right on the local perspectives--that is that the US was involved in transferring South African, Tunisian, and Rwandan Muslims to Ethiopia for interrogation--then the legal perspectives as we discuss them here are largely irrelevant to the effcts from such a program.

In this case, the US received bad PR simply because FBI and CIA officers allegedly interviewed some of the detainees. We don't read that US involvement, in the Kenyan-Ethiopian "sweep rendition", is "unclear" until the last sentence of the article - and that, only after we are reminded of an individual 2002 rendition from Kenya to Gitmo.

Nope. The unclear is near the bottom if the first page. Here is the last paragraph

In October, Ethiopia freed eight Kenyans held in custody for more than a year. Meanwhile, all those released without explanation are trying to get on with their lives.

"I still have some anxiety leaving my apartment," said Moosa, the South African. "I'm a bit paranoid. I will never leave South Africa again."

In between the "unclear" and that last paragraph, there is more discussion including the bit about the CIA and FBI types at the Sheraton in Addis. That part was sourced to HRW and the diplomatic crowd. Addis is not that big--having lived in several African gold fish bowls --new folks at the local ritz that is usually a watering hole get noticed quickly.

But in any case, my point is simply that if the US and AFRICOM are to invest so heavily in buidling rapport on the continent, then it has to be a fuly coordinated effort. That much of this happened before AFRICOM's watch matters not a whit; JTFHOA was in full swing as were ops in Somalia. In any case, to the Africans we--AFRICOM, JTFHOA, FBI, CIA or Sgt Pepper's Lonely Hearts Club Band--all look the same or are at least looked at from a common suspicious perspective.

Tom

[jmm99]

being temporarily stupid is not an issue - being permanetly stupid, is.

So, there is a bit of meat to the story. But, even if there weren't, I expect it would still find a receptive audience. E.g., Soapy Williams' 1964 Congo letter, forged by the Czechs. I expect we could find more than one GWOT operation that, even though arguably legal, resulted in a PR blowback.

[Bill Moore]

Among those captured was Daniel Joseph Maldonado, an American who is now serving a 10-year sentence in federal prison in Houston for undergoing military training at a camp in Somalia. Canadians, Swedes, Eritreans and Syrians also were detained.

While the operation netted a handful of hard-core Islamist militants who were training at jihadist camps in Somalia—an American among them—the vast majority of the detainees have been released without charges.

Tom,

Truth in lending, the only information I have on these allegations is the article you posted, so we're all making assumptions and forming opinions with little to no facts; however, you still bring up some good points:

Risk versus gain? The two paras I "selectively" cut and paste above indicate that the actual risk may have been very high to our national interests and even the Europeans. The author admits, yet simply glances over it, that some were hard core Islamist militants. Only speculaton, but if they were planning another major attack on western embassies somewhere in Africa, or to possibly hijack a plane, or execute a Mumbai type attack, then the renditions in theory could have prevented hundreds of innocent deaths.

You wrote,

But in any case, my point is simply that if the US and AFRICOM are to invest so heavily in buidling rapport on the continent, then it has to be a fuly coordinated effort. That much of this happened before AFRICOM's watch matters not a whit; JTFHOA was in full swing as were ops in Somalia. In any case, to the Africans we--AFRICOM, JTFHOA, FBI, CIA or Sgt Pepper's Lonely Hearts Club Band--all look the same or are at least looked at from a common suspicious perspective.

I agree 100%, and I hope that risk factor was taken into the analysis process, and I further hope that if the decision to execute was in some way influenced by us, there was a "deliberate" decision making process that weighed the costs versus benefits and that the right decision based on the information available at the time was made.

I'm not a big fan of the current administration, but I do agree strongly with the President's statement that this is a different type of war. If this unorthodox operation saved American and other innocent lives then that should also be considered in the calculus.

Final argument, "if" the American people found out we had intelligence of an impending attack and we didn't act to prevent it by all means necessary, what would their judgment be? Would they accept that we thought it was more important to enable AFRICOM strategic communication and gain access to Africa?

I only throw these what-if thoughts out for consideration. I would like to hear jmm99's thoughts from the legal perspective.

[davidbfpo]

I accept the point made by Bill Moore that US and other publics would ask questions if intelligence showed a real threat of attack and nothing was done.

What is missing INHO is that neither policy-makers or those with an IO mandate explain why pre-emption, detention without trial etc are used - when no-one is charged to appear in court.

Here in the UK much has been made of the number of successful prosecutions in terrorism cases, often with guilty pleas and sometimes admissions. Those cases account for around 10% of all those arrested for terrorism.

There is a clear need to explain why, to our own publics and those communities where suspects / terrorists hide. Alongside considering how our enemies and their "soft" supporters will react. In the UK they are too often left un-challenged.

[Bob's World]

Just a couple of observations:

First, in the law this would be described as "the slippery slope..." Once one starts waging CT ops in sovereign nations around the world, and detaining suspects, what starts off as fairly clean can get messy...

Second is that intel guys are great at first order effects: "this is a bad guy, stop him and you will stop or disrupt this bad thing." What they do not look at, and even often do not consider to part of their job, is what are the second and third order effects to our larger scheme of engagement in the area.

I experienced personally where the intel community continually listed one particular individual as one of the top 2-3 "High Value Individuals" and briefed the senior leadership to this effect for months. Finally the host nation rolled the guy up. When we went back to the intel community a few months later to get facts to put into an update brief for that same senior leadership, the assessment from those very same intel officers was that his removal had made the organization stronger.

Somehow, I suspect that with a different approach to our analysis we could have predicted that and taken a different course. So my question is that while it looks like there may be some great first order effects from some of these grabs...what are the deeper effects on the bigger picture???

[Tom Odom]

All good points from all posters.

JMM and the forged Congo Letter Good point and it could be that some of that is going on. In referring to the Congo, you bring to mind the Congo 64 rescue that the US and Belgium with other Western handnolders in the background agonized over for nearly 3 months, When it was finally done and several thousand hostages were rescued, the USIA Library in Cairo was burned to the ground in the backlash.


Bill Moore Understand that some of the round ups were valuable and we will probably not hear the gains. Hopefully there were real calculations involved. This takes me to

[Bob's World Essentially you describe intel target fixation and as leadership gets worse and in some cases the IO effort gets into the same cycle, we get into the mindset "if we only get this guy, we will unhinge them."

Secondary effects are slower to mount but often larger and of longer duration. Most targeteers on the intel side--especially other agencies--that I have met get caught up in the "shoot first" mentality unless someone is there to guide them through a longer target appreciation.

Last David You make the greatest point in response to the strategic needs generated by such programs. When it comes to extraordiary rendition, you had better be prepared to explain why someone was targeted and turned over to another country's apparatus--especially if you or the country holding them are going to release them.

Tom

[jmm99]

Tons of ink on multi-tons of paper have addressed "extraordinary rendition".

The 2005 Report for the All Party Parliamentary Group on Extraordinary Rendition (cite in post # 5 above) sums it:

(p.13)
International law on responsibility of a State with regard to unlawful acts of other States:

*Prohibits the knowing aid or assistance in the practice of Extraordinary Rendition;

*Requires a State to assert jurisdiction over Extraordinary Rendition in defined circumstances; and

*Requires a State to take into custody, investigate and then extradite or prosecute an alleged offender when that offender is on its territory.

and (same page)

To what extent does international law apply in the “War on Terror”?

International law prohibits both torture and complicity to torture in the context of terrorism and national security emergencies. The absolute nature of this prohibition in CAT Article 2(2) was specifically included in CAT to distinguish freedom from torture as one right from which no derogation is permitted under international law, even in times of war or other emergency. Unlike CAT, the ICCPR (Article 4(1)) and the European Convention (Article 15) contains provisions permitting certain derogations from human rights obligations in specific circumstances. Each of these conventions is clear, however, that certain rights are always non-derogable. Paradigmatic among these is the prohibition against torture. Like CAT’s non-derogability provision, the Geneva Conventions’ obligation to investigate and prosecute individuals who are alleged to have committed “grave breaches” of the Geneva Conventions is not derogable. Thus Geneva III’s prohibition against torture and inhumane treatment of POWs and Geneva IV’s prohibition against torture, inhumane treatment and unlawful transfers of civilians to States where they may be subject to Geneva Convention violations apply during war.

International and regional law uniformly provides that regardless of whether the transfer of a person occurs as part of an extradition request and regardless of any exceptional circumstances such as efforts to combat terrorism or another threat against national security, the anti-torture and non-refoulement principles would be violated if, as a result of such transfer, the person is at risk of being subjected to torture or other ill-treatment.

So, what I call Ordinary Rendition, a process which (if allowed by domestic law) permits some dispensation from formal extradition procedures, still seems viable. But, morphing that process into what we call Extraordinary Rendition has always been questionable. As Bob correctly says (both as lawyer and SF COL, I presume), this is a very slippery slope - both in terms of legal and non-legal coinsiderations.

Interrogations, interviews, whatever you want to call them, are not necessarily in violation of anything (assuming they meet legal standards); but, they can be tainted by the rest of the process. Much of this is wisdom applied - not law.

-------------------------
Since I have to assume that these problems are long-term (for the rest of my life), a comprehensive set of standards have to be developed (intel, military, diplomatic, judicial) to handle not only hardcore types (Jack Bauer & 24 ?, which I have never watched, so I can't judge), but also the lesser goats and sheep who are caught up in the net.

IMO: The present "War Crimes" cases are a bloody mess (with some exceptions) and should be "lessons learned" on how not to do it - as David correctly alluded because he has been following the UK component of one of the messier cases (which may or may not continue here under the Obama DoJ).

[Bill Moore]

Bob and JMM thanks for your posts,

Since I have to assume that these problems are long-term (for the rest of my life), a comprehensive set of standards have to be developed (intel, military, diplomatic, judicial) to handle not only hardcore types (Jack Bauer & 24 ?, which I have never watched, so I can't judge), but also the lesser goats and sheep who are caught up in the net.

I'm strictly a knuckle dragger, which in some respects means I can speak many of your average six pack Joes. The six-pack Joe crowd is the crowd of guys and gals who get frustrated when a criminal goes free on a legal technicality, or gets equally frustrated when we have no viable "legal" recourse to take tougher action against certain organized criminal groups in the U.S. and foreign lands (to include those pesty pirates in Somalia). On one hand we have great respect for and fully understand the need for the law. We also realize that we personally benefit greatly from our body of civilized laws. On the other hand, we don't want to see the hardcore terrorists and criminals protected by these same laws, yet realise that it is almost impossible to have one condition without the other. While I prefer to live in a land governed by laws if it came to a decision today, but I also think we do to a reality check on our legal system for situations like this and make the appropriate changes. I think you captured the key problem that I quoted above.

O.K., who is going to take this for action?

[jmm99]

Here are the problems - combined with some answers: The law by JMM as it should be.

1. Revisit GC III and seriously look at the interplay between Art. 2 (common to all GCs), Art. 3 (also common to all GCs), and Art. 4 (PW/POW status) for detainees, whether in a "battlefield" situation such as Astan or in a "non-battlefield" situation. On these provisions, hinges the status of detainees. See here (posts ## 13-20) and here (post # 33) for some discussion re: AQ and Taliban in Astan.

2. Once the rules to determine status are set - these will be the same whether one is in the Law of War (military) or the Rule of Law (domestic), we have to set the rules for separating the wolves (in sheep's clothing), the goats and the sheep. Note that rarely will we be dealing with a genuine GC III, Art. 4 detainee (a PW/POW) - in the case of such as AQ and Taliban, Art. 2 will flow to Art. 3. When we get there, we find that armed combatants have the right to be tried by a competent tribunal before execution, for example. Other provisons of GC III and IV also require a similar trial if the detainee claims PW/POW status or civilian status.

3. What is a competent tribunal is basically a least common denominator test based on the standards of civilized nations. Let us assume arguendo that the UN members are civilized nations; and then determine the procedure that is common to all of them - tossing out those aspects of due process that are NOT shared by all. We will then have a minimum standard.

4. Then, we should examine the alternatives, which could range from: (a) an immediate hearing before a board of competent persons (the old-fashioned field officers board comes to mind) with no appeal; to (b) a full blown adversarial, judicial process (such as the UCMJ or the Euro criminal system).

5. Collect and preserve all the evidence concerning each detainee in one dossier with a back-up copy in a different place. Sounds simple, but it has been a problem. At least one of the "War Crimes" cases I've reported will probably be tubed because the initial evidence (definitely collected by the military, probably admissible, and quite possibly enough to convict) has been lost in the process.

6. Revisit the application of formal extradition to persons who flunk GC III, Art. 2 and fall into Art. 3. If they have limited rights under Art. 3, no logic exists to grant them greater rights just because they have to be rendered from one country to another. However, even here, a preliminary hearing seems required (under GCs) to establish "probable cause" of their status. Again, we can go to a least common denominator test based on the standards of civilized nations.

7. Admissibility of evidence is also not going to be a problem since our (US) exclusionary, privilege and hearsay rules are not common to all civilized nations - in fact, we are in the definite minority there. The general rule for admissibility of evidence is the "totality of circumstances" - evidence is presumed admissible with objections going more to the weight that will be given it. The other side of the coin is that all evidence (inculpatory and exculpatory) must be disclosed - our (US) Brady doctrine, which is fundamental due process because it prevents innocent persons from being convicted.

8. All these bets are off if US citizens are concerned - both JJ. Roberts and Scalia have made that clear enough in several cases.

PS: - if all else fails, simply shoot the buzzards as propounded by Gary Berntsen in his new book, which is reviewed here.

Having taken the bit in teeth, you all can now bite me in the ass or other parts of the equine anatomy.

[slapout9]

We need some type of expanded "Exigent Circumstances" rule. Fighting terrorists organizations can be very different because of the extreme and unusual threat they pose. What the final version would end up being I don't know but we need one IMO.

[Tom Odom]

JMMPS: - if all else fails, simply shoot the buzzards as propounded by Gary Berntsen in his new book, which is reviewed here.

A reviewer wrote:

This is a publisher's idea of a quick buck. The author did what he could within the constipated formula. It is recommended for anyone who knows very little about intelligence and wants a useful overview that avoids the nitty-gritty. Indeed, this is a very fine companion to Intelligence: From Secrets to Policy(3rd Edition), which is deficient in the very areas where this book offers a rather gross-level overview to the student new to the intelligence discipline. The price is reasonable, one reason I was tempted.

[jmm99]

Tom - have and have read the book, as well as Mr. Steele's review. The book is not a primer for Intel 101, much less Intel Calculus 617. It is an edited version of Mr. Berntsen's speeches - and would be better titled "A Long Open Letter to the Next President". The PS was a bit tongue in cheek, since as all know I subscribe to a "try 'em, convict 'em" and then "shoot 'em" strategy.

Slap - please provide us with an outline of what you mean by an "expanded 'Exigent Circumstances' rule". Just bullet points.

[slapout9]

JMM, it was more thinking out loud but to expand on this. In an emergency situation regular LE does have to comply with the regular routine such as Miranda before interviewing and or search warrants. This usually involves situations where there is an immediate threat to life. Example would be kidnapping and you have a suspect who has time sensitive information.

Expanded to a Terrorist would be something like expanded detention say 7 days because the information he/she may have could effect not just one life but conceivably thousands. The Standard would be reduced to reasonable suspicion as opposed to having to establish probable cause. At the end of 7 days either you have probable cause to file formal arrest charges or they walk.

[jmm99]

In an emergency situation regular LE does [NOT] have to comply with the regular routine such as Miranda before interviewing and or search warrants.

As to this:

Expanded to a Terrorist would be something like expanded detention say 7 days because the information he/she may have could effect not just one life but conceivably thousands. The Standard would be reduced to reasonable suspicion as opposed to having to establish probable cause. At the end of 7 days either you have probable cause to file formal arrest charges or they walk.

Back when I was a little boy in law school (which was just before Miranda), a serious proposal was made (IIRC by Fred Inbow and others) to allow US police interrogation for a limited period of time before arraignment, under some conditions - one was audio recording the entire interrogation. Today, we have video.

The idea was to allow cops some leeway to cement probable cause and, frankly, develop actionable intelligence to other perps. Since the entire interrogation would eventually be before the trial court, the judge would be in as perfect position as possible to decide admissibility (and fruit of the poisoned tree) based on the "totality of circumstances".

I had NO issues with that proposal then, or now. Miranda put end to what were some innovative concepts in juxtaposing police TTPs, the judicial process and the rights of the accused.

I think we are thinking along the same lines. Make it point 1A in my outline.

PS: My God - at least part of my memory still remains (except for spelling "Inbau" as "Inbow"). Fred E. Inbau et al, Criminal Interrogation and Confessions, which is here.

This is a more recent version of the 1962 version, which was my reference above.

Product Description

The fourth edition of Criminal Interrogation and Confessions presents the Reid Technique of interviewing and interrogation, and is the standard used in the field. The Fourth Edition presents interviewing and interrogation techniques, based on actual criminal cases, which have been used successfully by thousands of criminal investigators. This practical text is built around simple psychological principles and examines interrogation as a nine-step process that is easily understood by students.

I think my profs (Kamisar & Israel)'s case book may have some excerpts from Inbau's plan. I'll look.

--------------------
PS #2 - did talk with Circuit Judge re: the Astan HTT case. His nephew is assigned to one of them - so, he knew the drill. Chuck was a defense attorney before going on the bench. Bottom line. "Boy, handcuffed - that's a tough case. Come on, Chuck, you can do better than that. Boy, those handcuffs, - that's a real tough case." We then got off into Anatomy of a Murder and John Voelker, who tried the real Anatomy case, but who only talked fly fishing in his fairly often bar room conversations with Chuck when Chuck was a rookie lawyer. He then had to go onto the bench and put someone in Jackson or Marquette - I didn't stick around for the sentencing.

[slapout9]

jmm, yes does NOT is what I meant. Also covers search warrants. There was an interesting case in Florida that supposedly had some bearing on this from the early 1960's Barbara Jane Mackle was buried alive and either died or nearly died because LE had to fool around to long with getting a search warrant. Have not researched this to confirm it been have been told this. I am familiar with the taping procedures of interrogations you are talking about and yes it was and still is used for Intel purposes can't use it in court anymore, but we just wanted the Intel anyway for further investigation.

PS. I have some Reid books.