Who’s Getting Killed Today?
ANGLO AMERICA, 10 Jul 2017
Clive Stafford Smith – The Times Literary Supplement
28 Jun 2017 – Few people are aware that every week the White House observes “Terror Tuesday”, where the US President personally approves people for death without any legal process at all. Indeed, if one trait has marked the so-called War on Terror, it is the unthinking abnegation of various long-settled human rights rules – among them, the right to due process and a fair trial – by politicians who seem immune to the lessons of history. Liberty is initially eroded at the margins, but in recent years long-developed principles have been washed away in the neap tide of populism.
Protest in Munich, 2013. © Peter Kneffel/Epa/REX/Shutterstock
Thus it was that we turned our collective back on the 1984 UN Convention Against Torture. Decades (or centuries) of evolving law were tossed aside by George W. Bush’s administration on the assumption that “Enhanced Interrogation Techniques” (EHT) would somehow obtain useful intelligence. The same methods had, of course, been used 500 years ago to induce women to confess that they were witches. Indeed, a reminder of what current “EHT methods” were called by the Inquisition can be revealing. While neither George W. Bush nor Donald J. Trump appears to believe that waterboarding, for example, qualifies as torture, the Inquisition was more honest, calling it tortura del agua (water torture). It was the Gestapo that called it verschärfte Vernehmung, which translates as “enhanced interrogation”. The right to due process and a fair trial, meanwhile, went overboard on the coast of Cuba, in Guantánamo Bay, and the idea that someone should legally be extradited from one country to another was overridden with a novel phrase – “extraordinary rendition” – which translates roughly as “transnational kidnapping”. And so forth.
But it is Terror Tuesday that has been my particular concern lately, with the suggestion that we are returning to the era of the Borgias, taking to assassination as a solution to our problems. It is especially troubling that this policy was adopted in 2010 by Barack Obama, the constitutional law professor turned President. He said he opposed rendition, and wished to close Guantánamo Bay, yet rather than kidnap people and hold them without trial, he chose to execute them without any legal process at all.
There are those who will insist that it was ever thus: governments torture prisoners, kidnap suspects and assassinate their enemies. In the shady margins of the world perhaps this has been the case, yet the laws banning assassination are older than those prohibiting torture. The US has now spurned that history, encouraging other nations to follow. Thus, even as we slowly limit the official use of capital punishment, executions without trial are on the rise. At Reprieve – the international human rights organization I founded in 1999 – we have begun a project to expose the burgeoning business of official assassinations: there are 783 names on the copy I have of President Bashar al-Assad’s kill list (more on which later); in a book with the fantastically appropriate title Un Président ne devrait pas dire ça (Things a President Should Never Say, 2016), the former French President François Hollande admits he authorized four assassinations; the Russians slip Polonium into the tea of their enemies in London; the Americans have their kill lists; and even NATO has the Joint Prioritized Effects List (JPEL) of people labelled extremists on the borders of Afghanistan and Pakistan, compiled by the United States along with a number of European allies, all of whom strongly disapprove of the death penalty (again, more later). And so it goes on and on.
Two thousand years ago there were many who sought to assassinate their enemies although, as Ward Thomas points out in his article “Norms and Security: The case of international assassination” (International Security, 2000), “the notable exception in the ancient world was Rome, where a norm emerged stigmatizing the assassination of foreign enemies”. There was a political subtext to this seemingly honourable ideal: since the Romans possessed the most powerful army in the world, they stood to benefit from a normative structure that delegitimized subterfuge.
The word assassination itself was born around 1090. Suicide killers steeled themselves with hashish – “hashashin” in Arabic – before their missions. (A passing note: ISIS extremists are using the “Jihadi drug” Captagon to help them do their dreadful deeds. An ISIS fighter described the drug’s effects: “You don’t have any problems. You don’t even think about sleeping or leaving the checkpoint. It gives you great courage and power”. Americans, who use drones, generally indulge only in coffee as they let loose their Hellfire missiles.)
In the fifteenth and early sixteenth centuries, Thomas says, the Republic of Venice openly solicited help in killing enemies. “The enterprising Brother John of Ragusa . . . in 1513 offered to ‘work wonders in killing any one [the Council] chose,’ according to a price scale: ‘For the Grand Turk, 500 ducats; for the King of Spain (exclusive of traveling expenses), 150 ducats; for the Duke of Milan, 60 ducats; for the Marquis of Mantua, 50 ducats; for his Holiness, only 100 ducats’.” Even then – 500 years ago – many had misgivings, reflected in a knightly code of chivalry which clung to the notion that honour could only be found in face-to-face combat. Yet, in 1516, Thomas More (later made a saint) “extolled the use of assassination both as a useful tool of statecraft and as a means of sparing ordinary citizens the hardships of wars for which their leaders were responsible”.
The tide turned. By 1612, the Italian lawyer and jurist Alberico Gentili classified assassination as nothing more than murder. Interestingly, he recognized that it was generally pointless as well as immoral because a new leader would emerge, with followers made more devout by the death of their previous leader. By the time the Swiss philosopher Emer de Vattel wrote his treatise on international law, Le Droit des gens (1758), there was a general agreement that the practice should be illegal:
I give, then, the name of assassination to treacherous murder . . . and such an attempt, I say, is infamous and execrable, both in him who executes it and in him who commands it . . . . The sovereign who makes use of such execrable means should be regarded as an enemy of the human race, and all Nations are called upon, in the interests of the common safety of mankind, to join forces and unite to punish him.
Thomas Jefferson wrote to James Madison, in 1789, that “assassination, poison, perjury . . . all of these were legitimate principles in the dark ages which intervened between ancient and modern civilizations, but exploded and are held in just horror in the eighteenth century”. In 1806, a plan to assassinate Napoleon and end a disastrously expensive and bloody war was put to the British Foreign Secretary Charles Fox. He not only rejected the offer but arrested the would-be assassins and informed the French foreign minister of the plot. In 1863, the US Army’s Lieber Code stated that “civilized nations look with horror upon offers or rewards for the assassination of enemies as relapses into barbarism”.
If ever there were a case for assassination, we might expect the Allies to have argued it was Adolf Hitler. On the contrary, during the Second World War there appears to have been only one assassination by the US, and another supported, but not executed, by the UK. In “Operation Vengeance”, the US targeted the Japanese Admiral Isoroku Yamamoto, who had been behind the Pearl Harbor attack in 1941. US intelligence identified the precise time when he would fly from Rabaul to Bougainville, in Papua New Guinea. A squadron of American planes was dispatched and the Admiral died when his plane was shot down and crashed in the jungle. There was a patently negative consequence to this: the US pilots bragged about their exploits and how they managed them, thereby highlighting for the Japanese how the intelligence had been gathered.
The UK appears to have sanctioned the targeting of Reinhard Heydrich. Much has been made of how he was a favourite of Hitler, and a particularly vigorous advocate of the Final Solution, but there were plenty of venomous members of the Nazi regime. A Czech and a Slovakian were dispatched from London and they succeeded in inflicting fatal injuries on Heydrich, but the results were catastrophic: in retaliation, the Germans hunted down and killed the perpetrators and those who had helped them. The village of Lidice, erroneously suspected of harbouring the perpetrators, was razed to the ground, the entire population wiped out. The Germans deported as many as 13,000 local people to death camps, and then replaced Heydrich with someone who was at least as vicious. It is difficult to make the case that this solitary assassination contributed anything but misery to the course of the war.
Until recently, the only other clear example of a US military assassination project was the top secret “Phoenix” programme which sought to kill Viet Cong leaders. Again, it seems to have further provoked hostilities, and it did not stop the US losing the war. Meanwhile, the CIA’s dabbling in assassination caused so many problems that, in 1975, a Church Committee Report declared assassination “incompatible with American principle, international order and morality”. Among the reasons to reject the practice, the Report identified the danger of political instability following a leader’s death; the inability of a democratic government to ensure that such covert activities remain secret; and the inevitable fact that the use of assassination would invite reciprocal or retaliatory action against American leaders. One result was Executive Order 11905, signed by President Gerald Ford on February 18, 1976, which officially banned political assassinations. Subsequently, between 1978 and 1981, President Jimmy Carter and then President Ronald Reagan broadened the prohibition: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination”.
The gradual evolution of the rule against assassination came to a head at almost the same time as the 1984 Convention Against Torture; both principles would be cast aside after 9/11 without debate. Naturally, since bad cases make for unwise practices, the US began by trying to target Osama bin Laden, who was seen as responsible for the outrages in New York and Washington. Jane Mayer, in her article “The Predator War” published in the New Yorker in 2009, describes how, in February 2002, “along the mountainous eastern border of Afghanistan, a Predator reportedly followed and killed three suspicious Afghans, including a tall man in robes who was thought to be bin Laden. The victims turned out to be innocent villagers, gathering scrap metal”. Thus began America’s unravelling of the law.
Publicity surrounding the “targeted assassination programme”, including an ever-changing list of those to be targeted, first surfaced in 2010. The New York Times ran an article about the presidential approval for the killing of Anwar al-Awlaki, a US citizen and Islamic lecturer centrally involved with al-Qaeda. Any “kill-only” policy is illegal under international law, so the PR mavens changed the name to the “Disposition Matrix”, under the pretence that we could “dispose” of people in any number of different ways. There have been very few “capture” missions, whereas more than 3,000 people have been killed with drones. In other words, the list is an assassination list.
On May 29, 2012, we first learned about Terror Tuesday in a long New York Times feature written by Jo Becker and Scott Shane. It is difficult not to recognize shades of Imperial Rome: the head of the CIA comes to the White House to give a PowerPoint presentation with pictures of the proposed targets of the assassination programme, along with the explanation for why each person merits death. Like Emperor Commodus in the Colosseum, the President moves his metaphorical thumb. One leak included an explanation of the process, ironically included in its own PowerPoint: “The slide detailing the kill chain indicates that while [the President] approved each target, he did not approve each individual strike”. Once the President essentially signs an individual’s death warrant, Joint Special Operations Command (JSOC) has a sixty-day window to hit the target.
There are a number of arguments proffered in support of the Disposition Matrix. Apologists suggest that the US policy is legal, as assassination is permissible in times of war. There is, perhaps, a logical appeal to the notion that if we can exterminate an entire city with a nuclear bomb, then we can target an individual. But, we like to think that we have come a long way since Hiroshima: it is extremely doubtful that targeting 100,000 civilians could be justified today. Indeed, under the evolving laws of war, there are various methods of killing that are unlawful, however illogical each rule may seem. For example, the First World War led to a ban on the use of poisoned gas; a global campaign led to prohibitions on landmines; and we have been forbidden, since the Hague Convention of 1899, to use hollow point (dumdum) bullets.
In an early iteration the prohibition on assassination applied only during war. As Francis Kelsey explains in his edition of the works of the Dutch jurist Hugo Grotius (1583–1645): “Grotius believed that one attribute of sovereignty was the right to wage war, and that the prohibition of treacherous assassination applied only in the context of a ‘public war’ against a sovereign enemy. Thus, one effect of forbidding the use of assassination was to protect kings in the exercise of their prerogative as rulers”. Indeed, this evolution is perhaps part of a long tradition of trying to “civilize” the uncivilized practice of warfare.
Proponents of the Disposition Matrix paint it for the public as a necessary and fine-tuned project that decapitates the worst terrorists waging war against us. The same was said of Guantánamo Bay, which supposedly housed the “worst of the worst” terrorists in the world. That was a fraud, a pretence intended to convince a domestic audience that the Bush administration was taking effective action against al-Qaeda. To date, 738 of the 779 detainees at Guantánamo have been released, each after an official finding that he was “no threat to the US or its coalition allies”. Had the assassination policy been in place in 2002, these men might all have been targeted for death instead of incarceration without trial.
In carrying out assassinations, the US government purports to apply strict rules to prevent “collateral damage”, their term for the killing of entirely innocent people. “If the agency did not have a ‘near certainty’ that a strike would result in zero civilian deaths, Mr. Obama wanted to decide personally whether to go ahead”, reported Becker and Shane. This makes it clear that the President could still allow an assassination attempt to proceed if he did think that civilian deaths were likely. The first time Donald J. Trump dipped his presidential toe in these murky waters, he tweeted that the notorious Yemen raid of this February was a “winning mission”, even though the New York Times quoted a senior military official as saying that “almost everything that could go wrong did”. My colleagues at Reprieve published a report within days, revealing that the US missed its target and caused the deaths of at least twenty-three civilians, including ten children, to go alongside the loss of US Navy Seal William “Ryan” Owens.
It is the nature of human beings to make mistakes even in the bright light of day. After all, since the US’s reintroduction of capital punishment in the mid-1970s we have seen more than 150 exonerations of those condemned to death after twelve jurors unanimously found them guilty beyond reasonable doubt in an open and theoretically fair trial. It would be hard to believe that the CIA could match even this level of fallibility. It is not surprising, then, that the results of the US assassination programme have been so catastrophic. Reprieve has studied the drone strikes carefully, and reached some sobering conclusions, published in consecutive reports, in 2014 and 2016: the US has missed its target with monotonous regularity, such that someone slated for assassination appears to have more lives than a proverbial cat. For each person the US has targeted, an average of nine children have been killed; to date, the CIA has killed seventy-six children and twenty-nine adults in pursuit of Bin Laden’s successor Ayman al-Zawahiri, yet he remains alive.
The very notion that the Disposition Matrix is technical and precise is undermined by the puerile names given to each potential “object” of the Hellfire missile. NATO’s JPEL Disposition Matrix is intended, we are told, to eliminate Taliban extremists along the Afghanistan–Pakistan border. The NATO officers in charge have come up with codenames for their targets based on movie stars, cartoon characters, rock bands and even the blue movies that apparently entertain the troops. Indeed, JPEL 58 OBJ Aletta appears to be a homage to the Hungarian porn star Aletta Ocean, and JPEL 411 OBJ Kamila to the Russian porn star Camilla Kamila (aka Petra Q). JPEL 279 Rocco draws his sobriquet from the Italian porn star Rocco Siffredi, and JPEL 398 OBJ Doda is very likely named after the American striptease artist Carol Doda. Still more bizarre, JPEL 79 OBJ Altavera seems to be named after a contraceptive pill.
Given all this, it is difficult to accept that NATO occupies the moral high ground. Further, the JPEL programme illustrates how quickly a bad idea can become worse. It took the US, closely allied with the British, very little time before the War on Terror leeched into the War on Drugs. ISIS earns large sums through oil and kidnapping, but there is little evidence that drugs play a significant role in their funding. Likewise, as Reprieve noted in 2016, “[t]hough Al Qaeda is listed by the DEA [Drug Enforcement Administration] as a drug-trafficking organization, the 9/11 Commission found ‘no substantial evidence’ to support that characterization”. Yet NATO included some forty drug traffickers on their list. There is, at least for me, something particularly troubling about the close British co-operation in this, given the government’s official opposition to the death penalty for any crime, up to and including genocide.
An epidemic of kill lists has spread around the world – because when the US, or Britain, adopts a policy that abrogates human rights, there are plenty of despots ready to use it to justify a descent further into barbarism. For example, in 2006, in the aftermath of the 7/7 London bombings, the UK (under the Labour government of Tony Blair) adopted a law defining a broad range of acts as terrorism. Some of the language was lifted verbatim into a 2009 Ethiopian law, whereupon it was used to impose a death sentence on Andy Tsege, a British citizen whose battle for democracy was labelled terrorism by the ruling party.
Given this pattern, it is unsurprising that the US Disposition Matrix has encouraged others to follow suit, or to up their game, the most grotesque example being President Rodrigo Duterte of the Philippines, who has leapt into the trenches of the War on Drugs. One article by Eli Bradley, published last year on the Catholic news website churchmilitant.com, reported that “up to 600,000 Filipinos are allegedly connected to the country’s drug problem and will be added to President Duterte’s shoot-to-kill list”. Duterte has actually promised far more, saying he was willing to kill 3 million drug addicts as if that would somehow cure the country’s problems. Bradley continues: “the Filipino strongman added to the list more than 150 names of judges, mayors and congressmen, as well as officers from the police and military”. Predictably, such lists are sloppy: for example, Duterte included a judge who had died eight years earlier. There are inevitable cases of mistaken identity, even were assassination an acceptable idea. The Guardian reported last year, for example, that “22-year-old Rowena Tiamson, a choir member whose body was found with hands bound and eyes and mouth sealed . . . was not on her local kill list, [as] the authorities have been forced to admit”.
Duterte would seem to be a parody of the American Disposition Matrix were it not for the fact that he is deadly serious – more than 8,000 people have been assassinated since he assumed the presidency in June 2016. President Obama criticized this lawless killing, but his words smacked of hypocrisy; President Trump, on the other hand, heralded Duterte as a paragon of forceful virtue and invited him to the White House. Perhaps they will dispense with the state dinner, and retire to watch a PowerPoint on those they might conspire to assassinate.
In 2016, before he became “Brexit Minister”, David Davis travelled to Damascus in a delegation of MPs to discuss possible paths towards peace in Syria. He met President Bashar al-Assad, who must have thought Davis a potential ally in the war against Islamic terrorists, someone who might recognize that the enemy of one’s enemies should be deemed a friend. To prove his credentials, President Assad handed Davis a disk with an Excel spreadsheet of the 783 people his administration was targeting for assassination. These were, he must have felt, people whom the UK would want to murder, too. Because he was horrified rather than impressed, Davis gave me a copy.
The list contained eighty-two Westerners, including twenty-six British nationals and eight Americans. It did not take long to dissolve any claim that these were the worst terrorists of the Islamic world – any more than were the detainees in Guantánamo or the people on any other Disposition Matrix. For example, one person on the list was Eric Harroun, a former US soldier discharged when an accident exacerbated his psychological troubles, who had gone to fight with Syrian rebels. When Assad’s people first claimed to have killed him, in 2013, Harroun tweeted a photograph from Istanbul, where he was toasting the camera: “Syrian Media must be smoking something, because I am alive and well, chilling in Istanbul having a martini at the moment”. By the time Assad gave the list to Davis, Harroun was indeed dead, but from a drug overdose after his return to the US.
The Russian kill list likewise labels the enemies of the state as “terrorists”. The US claims that its 2001 Authorization of the Use of Military Force gives it authority to kill targets wherever they are around the world; the Russian government aped the Americans, passing a similar law in 2006. If the Americans can lay claim to a Global War on Terror that respects no national boundary, what principle requires that the Russians respect British borders? Clearly they do not. Hence, the polonium in Aleksander Litvinenko’s tea in 2006, months after the new law was passed. On June 15, 2017, Buzzfeed released an explosive exposé, “From Russia with Blood”, identifying fourteen recent deaths on British soil as murders committed by the Russians. Equally troubling, Buzzfeed accused the British Government of turning a blind eye to this spate of assassinations, afraid to offend the Russian Bear. To give just one example, as Home Secretary Theresa May personally intervened to delay the public inquiry into Litvinenko’s death, citing the need to protect “international relations” with Russia.
The Americans have set a terrible example, and others waste no time in following it. Copycats include weak social democrats who want to appear strong. Thus, in France, former President François Hollande had a kill list, which he has bequeathed to his successor, Emmanuel Macron. Needless to say, the UK has one too.
The question remains, then, what we can do about it. The first challenge is to recognize the problem (most people do not), publicize what is being done in our name and provoke the debate that has not yet taken place. With Duterte, this might start with ensuring that people confront the glee with which he compares himself to Hitler. Meanwhile, at Reprieve, we have been identifying those who are slated for assassination by various countries – sometimes (as with NATO or Assad) where kill lists are leaked; sometimes by constructing a credible case that someone is being targeted. The criteria are not terribly controversial – first, there is an often perverse motive for an individual’s inclusion on the assassination list; then, there are leaked statements threatening death; and most concrete of all, there are the attempts that have already been made on the individual’s life.
We began the debate in the US by suing President Trump in a federal district court in Washington, DC on behalf of two journalists, Ahmad Zaidan and Bilal Abdul Kareem. Zaidan is a respected Al Jazeera journalist who was their Islamabad bureau chief. He was identified as a target on a PowerPoint leaked by Edward Snowden, largely because he had interviewed a number of al-Qaeda members, all the way up to Bin Laden. Kareem is an American who has been targeted several times, apparently because his reports have included meetings with Al-Nusra fighters in Syria. The evidence that the US is trying to assassinate these men is strong – but how onerous should the defendants’ burden of proof be? After all, their demand is modest: simply that the US provide them with assurances that the CIA is not trying to murder them.
The President’s lawyers issued their response earlier this month. Without apparently recognizing the irony of their argument, they say that “the Judiciary is particularly ill-suited to make such decisions, as courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature”. Does President Trump deem himself well-suited to making decisions as to which journalists the US should assassinate? Is this decision “not legal” in the sense that it is patently illegal? And why, when the US courts daily make decisions as to who should and should not face the death penalty with a trial, is this not an issue for the courts?
President Trump’s lawyers suggest that the decision to assassinate a journalist is “unreviewable” because such “agency action is committed to agency discretion by law” – they do not identify which law commits assassination to the authority of any US agency. Rather, they reprise the argument that assassination is legal, based on “military authority exercised in the field in the time of war”. Yet Zaidan is in Qatar and Kareem in Syria; the former country is currently engaged in a war of words with Saudi Arabia, no more; the latter is a bloody mess, but is not a country on which the US has declared war. We may win their case in court, or we may initially lose, but ultimately we will force Trump’s assassins into the open, where they must justify their actions, or give up their penchant for murder.
The UK finds itself on equally slippery legal ground. David Cameron once announced that we, too, were targeting British Muslim extremists abroad for execution by missile. But the Buzzfeed investigation shows that we are also willing to allow foreign countries to assassinate people on our streets. There is a principle set forth by the European Court of Human Rights that we must reinvigorate if we are going to hold pusillanimous British politicians to account. It is called the Osman rule, after the case in which it was established. Ali Osman was shot dead by Paul Paget-Lewis on March 7, 1988. The police had failed to act on a series of clear warning signs that Paget-Lewis, a teacher at the school where the Osman children were enrolled, represented a serious threat to the family. Paget-Lewis had previously changed his name (originally Ronald Potter) by deed poll because of an obsession with an earlier pupil called Paget-Lewis. He metamorphosed again into Paul Ahmet Yildirim Osman. Before the murder, the police received a number of other warnings that he intended the Osmans harm – from the school, from a psychiatrist and from various members of the community. Following the shooting, the Osman family sued the police for negligence, but the British courts held that the police had had no duty to warn them. This law was based on the precedent at the time. The ECHR begged to differ. The Osman rule essentially established that if the government learns of a credible threat against the life of someone, there is an obligation both to warn them, and also to take steps to minimize the threat. It may surprise many that at least 500 Osman notices are issued every year in the UK alone.
It is a relief that, thanks to militantly libertarian Tory MPs such as David Davis, the Conservative election campaign did not include Theresa May’s previous promise to ditch the European Human Rights Convention. If she had been granted her wish, that might have been the end of the Osman rule. Now, rather, Mrs May needs to choose: will she protect people from assassination, or will she bow down to Putin’s assassins?
In the US, meanwhile, I have met a number of Russian expats, all of whom have substantial reason to believe themselves targets of the Kremlin. In the current climate it may be possible to sue Donald Trump to establish the modest Osman rule in America as well. From Senator John McCain on down, there are currently powerful voices in Washington when it comes to curbing Russian excess. Regardless, nothing will prevent Reprieve from trying. Eventually, perhaps, we will haul the world back to the legal rule announced by Emer de Vattel a mere 259 years ago, when assassination was deemed to be simply barbaric.
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