Counterterrorism and its Affronts to Human Rights
Since the 21st century, there has been a sharp rise in terrorism and counterterrorism measures that are an insult to both international and domestic human rights. This essay will attempt to define the intersection of counterterrorism and human rights and why it is important to either adapt existing norms or adopt new conceptions on the constraints to armed conflict. Global interconnectedness also called globalization is not only a phenomenon felt in the realms of economics and culture but is also keenly evident in armed conflict. Modern national security, non-state actors, and detention methods represent the cogs of conflict interconnectedness in the 21st century. Focusing on these three areas will show how counterterrorism is eroding the protection of human rights from outside and within, specifically in the United States of America (US), but also many other nations. Just as the arguments around regulating the effects of globalization are rather heated, so too is the discourse surrounding adaptation and innovation in the methods of counterterrorism. In referencing the current political climate in the US, this essay will conclude that the status quo for human rights will prevail if not become worse in time.
National security, non-state actors, and detention methods are broad terms that need refined.
National security is primarily concerned with intelligence gathering and, for the sake of this essay, the combative side of military and law enforcement action. Nancy Murray (2010) defines the intelligence gathering activity of the US in saying, “a secretive domestic surveillance apparatus has been erected with virtually no public discussion to combat not just terrorism but crime – or, more accurately, pre-crime. So-called intelligence-led predictive policing” (p. 5). This apparatus physically manifests in organizations like the National Security Agency (NSA), the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), the Department of Homeland Security (DHS), and countless other regional and state level organizations. Central to this essay is the armed conflict tactic of targeted killing taken by both the state and terrorist and is primarily national security in action. Drone technology is the informal dialogue around targeted killing, and certain aspect particular to drone delivery are critical, but targeted killing is what the remotely controlled drone is doing (Braun & Brunstetter, 2013, 307).
The non-state actor in counterterrorism is a complex assortment of identities on either side of the war on terrorism. Terrorism is an unsettled term, but for this essay, a simplified definition is in order. Terrorism is the use or threat of action against a government, community, or person that often involves violence perpetrated on people or property, and can result in loss of life for political, religious, or ideological reasons (Alston, 2013, p. 432). A terrorist is most often a non-state actor but not exclusively. Taking this simple of a definition requires an explanation of the complexities in reaching a consensus on what terrorism is and who are those that are the terrorists. Victor Asal et al. (2012) communicates this in saying, “action-based approaches can lead to overcounting of terrorist events, but that the actor-based approach leads to significant undercounting of terrorist events and the exclusion of highly relevant events” (p. 476). What they are discussing is the disparity between classifying terrorist events by the actual attack versus the person or group.
Another central point of this essay is the state’s use of private military and security contractors/companies (PMSC) which are certainly non-state actors. A PMSC is a contractor to which the state has outsourced certain military and security needs. Jose L. Gomez Del Prado (2011) defines the PMSC in the abstract by saying, “the use of PMSC’s as a foreign policy tool. . . indicates that the state is abdicating as essential responsibility and delegating it to the private sector” (p. 152). The private status of PMSCs creates just as many nuances in counterterrorism as the private status of many terrorists. This became evident in the torture and humiliation of detainees at Abu Ghraib in 2003 at the hands of both the military and PMSCs (Mastroianni, 2011, pp. 53-54). PMSCs encompass an awkward area beholden to state interest, the capitalistic drives of a for-profit entity, as well as certain humanitarian laws and human rights requirements that often results in impunity for the PMSC when violations arise (Leander, 2010, p. 485). The outsourcing of military and security needs to PMSCs continues to rise dramatically especially in the US and United Kingdom (UK) where seventy percent of PMSCs are registered (Del Prado, 2011, p. 152).
Detention methods and imprisonment in counterterrorism touch on non-state actors and the intelligence community, and for the sake of the essay are another part of the military and law enforcement apparatus. Detention touches on all these factors because PMSCs staff various centers and on top of imprisonment those PMSCs and state agencies gather intelligence from detainees. There are different rules for the detention of an armed soldier or a civilian criminal. In summarizing Larry May (2013) describing these differences, an armed combatant is handled legally based off of status as a soldier whereas a criminal is treated based on their behavior (pp. 51-52). These differences carry many operational differences. The US, under both the Bush and Obama administrations, used sleight of hand legal rationale to straddle either side of the argument to justify many policies that are questionable. Some of these policies entail denying prisoners the right to petition for a writ of habeas corpus, the right to counsel or impartial trials, prolonged detention without charge sometimes in excess of ten years, and enhanced interrogation techniques (Sriram et. al., 2014, p. 71).
National Security and Targeted Killing
This next section will draw out greater details about the US national security apparatus as well as the action of targeted killing and drone technology.
Post 9/11: National security in the US is a large complex structure both visible in our lives and also lurking in the background hidden from sight. To compare it to an iceberg with only a fraction of its mass visible at the surface is not ill-fitting. Before the terrorist attacks on 9/11, the US handled counterterrorism under the paradigm of law enforcement, but after 9/11 it shifted quickly to war-fighting models (Murray, 2015, p. 175). Shortly after the attack, the US Congress passed the 2001 Authorization for the Use of Military Force (AUMF) statute granting the Bush administration wartime powers to retaliate against those who perpetrated the attack, with the subsequent Obama administration using it and historically obscure laws and statutes (Murray, 2015, p. 175). This would make sense; there was a large attack on the US. The focus here, however, is primarily in the intelligence community.
Following 9/11 within a month the NSA’s authority according to Murray (2015) was greatly expanded. . . to collect electronic and telephone communications, including data from tens of millions of American citizens within the United States. This was done through a secret presidential order, without involving Congress, flouting the 1978 Foreign Intelligence Surveillance Act (FISA), which requires a warrant from a court created by FISA to spy on Americans’ interactions with foreign nationals. (p. 180)
Compounding matters, Vice President Cheney, along with the NSA Director Michael Hayden, successfully advocated for increasing NSA power and authority. Their desires were met on October 4, 2001, with the approval of the surveillance program titled STEL-LAR WIND (Murray, 2015, p. 180). Legal scholars at the time went so far as to argue the program was exempt from FISA oversight based on the AUMF, regardless of the absence of verbiage on surveillance (Murray, 2015, p. 181). Even more hawkish was the assertion that regardless of the AUMF the president under Article 11 of the Constitution has the authority to conduct warrantless surveillance in a time of war (Murray, 2015, p. 183).
The Obama administration carried on the baton in utilizing the AUMF in arguably more creative ways than the previous administration. Murray (2015) states this much in saying the “administration was more respectful, at least initially, of the constitutional role of the legislative branch in war making. . . the incoming administration based its authority squarely on the bedrock of the 2001 congressional authorization” (p. 188). Obama interpreted his power to increase the kill or capture list of terrorist to include associates of al-Qaeda based off of creative history from WWII. During WWII the US fought cobelligerents of the Axis powers without formally declaring war on the cobelligerents (Murray, 2015, p. 189). Obama used this rationale to fight against organizations that fought alongside al-Qaeda. These included groups that were not even in existence at the time of 9/11, like al-Qaeda in the Arabian Peninsula (AQAP) and al-Shabaab in Somalia. On their inception, they were bound to the AUMF because of their association with al-Qaeda in Afghanistan even though they came into existence post 9/11 (Murray, 2015, p. 189). The naked self-defense concept buttresses the authority expansion under the Obama administration.
Dorset and C. Paulussen (2013) define naked self-defense as resorting to force in self-defense, but in ways in which the means and levels of force used are not part of an armed conflict, as a matter of the technical law of war. Those circumstances include self-defense uses of force against non-state actors, such as individual terrorist targets, which do not yet rise to the non-international armed conflict threshold. (p. 222)
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while counter-terrorism, Mr. Ben Emmerson (2013), throughout many panel discussions in his career, has said in paraphrasing, “what matter most is what states do” regarding his position at the confluence of counterterrorism and human rights. As such, this essay could jump into the tar-pit of discourse on international law and the US’ policy on counterterrorism shown above. However, in holding true to the Special Rapporteur’s rhetoric the focus in this essay is the implications for what the state has done. So what does the use and expansion of the AUMF resemble? How does naked self-defense manifest itself physically? What do the AUMF and naked self-defense mean for counterterrorism in general and how are they legitimized?
Targeted killing with drones is a very real manifestation of the questions presented above. However, targeted killings are discussed in great depth momentarily within targeted killings. These next paragraphs will draw out the implications both domestically and internationally of the US counterterrorism mindset. Like targeted killing, the domestic right to due process and detention concerns are critical issues covered momentarily in detentions.
Domestic: The expansion of the war on terror into an almost universal war is coercive towards resolving the overall conflict of terror and protecting the US citizens. Before diving into international implications, a look at the domestic factors show the coercive internal effects of the war on terror. N. Murray (2010) writes a blistering piece that covers a comprehensive list of local groups affected by the war on terror. Local police departments, N. Murray (2010) says, “spend more and more resources on intelligence work. . . their emphasis shifts away from building relationships with the kind of community policing that has long been held up as the best way to overcome anti-policy attitudes” (p. 8). As well, the federal Suspicious Activity Reporting (SAR) uses local and state police to file suspicious activity reports that are funneled to federal agencies (N. Murray, 2010, p. 8). N. Murray (2010) staunchly argues those suspicious activities amount to racial and religious profiling (p. 8).
Her argument is further backed up by examples ranging from the New York Police Department’s global anti-terror presence to the 2009 Virginia Threat Assessment Report (N. Murray, 2010, pp. 8-9). In the years since 9/11, the US has utilized numerous racial profiling policies like the mosaic theory which saw upwards of 1,200 men of Arab, South Asian, and Muslims decent detained by US enforcement forces even though none of the men had any connections to 9/11 (N. Murray, 2010, p. 12). As well, from 2002-2009 the US went from under 70,000 immigrant deportations to over 400,000 with the militarization of the Immigration and Customs Enforcement (ICE) branch of DHS (N. Murray, 2010, p. 15).
The government’s need for national security and total informational awareness in intelligence on the back of racial and religious profiling has very real effects on the US people. As N. Murray (2010) says of this racial profiling, “it has unleashed a virulent xenophobia among those citizens predisposed to think of America as a white man’s country. Sheriff Joe Arpaio of Maricopa County, Arizona, has become a folk hero for sweeping through neighborhoods with his posse of sixty heavily armed vigilantes, hunting Hispanic immigrants” (p. 15). Xenophobia is especially dangerous when considering the increased levels of ethnic conflict producing refugees. Armed conflict can be caused by the fear of refugees and exacerbated by xenophobia and many other factors. Sarah Lischer (2005) describes this in speaking of India’s invasion into what was East Pakistan because of ten million Bangladeshi refugees fleeing into India in 1971. In quoting Lischer (2005), she says “Samar Sen, the Indian representative to the United Nations, explained to the Security Council why India had to intervene militarily. He coined the term refugee aggression” to describe India’s rationale (p. 14). The drawn out logic is that there is no difference in the strain of refugees and the strain of combat on a host nation (Lischer, 2005, p. 15).
International: The dramatic rise in intelligence post-9/11 makes the CIA quite important internationally. As D. Gregory (2011) puts it, “the CIA has been transformed into a paramilitary organization at the vanguard of America’s far-flung wars” (p. 241). This is dangerous as the CIA’s original intention is to act as a counterbalance to the military. What we see now is a thin line that divides the civilian CIA from the non-civilian military (D. Gregory, 2011, p. 241). This is even more evident in Obama appointing CIA directors as Secretary of Defense, and Defense Secretaries as CIA directors. True to form, the issues of targeting killing and detentions have the CIA and other intelligence agencies along with PMSCs at the heart of the matter. However, what is at stake the most for this section is the territory in which the CIA conducts its missions because those territories are argued as far removed from declared war zones (D. Gregory, 2011, p. 242). An inequality presents itself, however, because non-alpha or lesser developed states have to fight more rigorously for combat terrorism outside of their sovereign lands as in the case of Rwanda and Yugoslavia (D. Gregory, 2011, p. 242).
The US is not at war with Pakistan, yet the nation experiences numerous drone attacks by the US because of its proximity to Afghanistan, al-Qaeda in and outside of Pakistan, and the Taliban in and outside of Pakistan (D. Gregory, 2011, p. 241). As well, Osama bin Laden was killed by US Special Forces in Pakistan. This is apparently taking the historical cobelligerent theory from WWII and applying it to the groups held up or operating within Pakistan, or taking the wording of the AUMF allowing a sort of anywhere war.
Another amazing illumination by Gregory that ties into N. Murray’s research is the militarization of the Mexican-American border. Post-9/11 saw significant restrictions on the flow of people along the Mexican border which adds to the militarization effect. But a few points before 9/11 are far more attractive. In summarizing D. Gregory (2011), he finds 3 points of interest. First, 1978 saw the repatriations of the US Army’s doctrine of low-intensity conflict along the border. Second, in 1982 regulations restricting the role of the military in domestic affairs was reduced. Finally, in 1989 President George H.W. Bush committed the Pentagon to the war on drugs (p. 243).
Complimenting border militarization, the DHS has centralized its power along the border in having ICE and the Border Patrol under its umbrella (D. Gregory, 2011, pp. 243-244). It makes complete sense that the current 2017 US President makes it loudly known he believes there are little to no differences between immigrants along the Mexican border and terrorists in the Arab World (Mead, 2017, p. 7). D. Gregory (2011) takes the war on terrorism even further into the realm of cyberspace that will prove only to complicate the arguments surrounding terrorism. D. Gregory quotes Farwell and Rohozinski (2011) in saying “nearly every significant cyber event reported since 2005 involves tradecraft, techniques, and code tied to the cyber-crime community” (p. 245). Admittedly, the focus of this essay does shy away from cyberspace, but to leave it out denies its relevance to terrorism and is faulty research. The pervasiveness of cybercrime is growing with largely known examples in the state of Russia (D. Gregory, 2011, p. 245). Finally, D. Gregory (2011) takes aim at naked self-defense in saying, “accountability is limited enough in the case of a declared war; in an undeclared war it all but disappears” (p. 241). This does apply to the naked self-defense doctrine because naked self-defense is argued in this essay to be precisely an undeclared war regardless of the theoretical arguments of jus ad bello and jus in bello. This section has dealt with the implications of counterterrorism that are geographic and metaphorically spreading. The next section will still deal with the impact of counterterrorism but will focus solely on targeted killing and detentions as those topics naturally introduce the final area of human rights.
Targeted Killing, Detentions, and PMSCs
In the last quote of D. Gregory (2011) for this essay he says, “if it is wrong to torture someone, how can it be right to assassinate them” (p. 241)? That thought is never too far away from being an ideological base for research in this composition.
Targeted Killing: In this section targeted killing will be referred to as drones or drone technology to maintain the commonly held term. In summarizing the Special Rapporteur Mr. Ben Emmerson (2013) once again on numerous panels regarding drone technology, drones in and of themselves are just a delivery system. Drone technology did, in fact, start out gathering intelligence via surveillance missions but was quickly adapted for carrying a payload for targeted killing in counterterrorism missions (Braun & Brunstetter, 2013, p. 305). The story of drone technology for killing starts with the fact that the Obama administration held in secret for four years from the public that there was a robust drone program (Flaherty, 2015, p. 23). As this essay moves closer to human rights, grave issues of transparency are showing their signs. The legalities of drone technology and using it in warfare declared or not, is an unsettled matter. As with most of the topics in this essay, the international and domestic community are at odds with many of the terms and processes of counterterrorism. Drone use, however, can be simplified down into a few basic threads. The right to due process is a critical concern in drone use. As well, the status and behavior of targetted combatants or action versus actor-based models raise numerous questions. Finally, discussion on the efficacy of drone technology along with the principal of proportionality will highlight the complexities of drone use in counterterrorism.
The right to due process is a universal norm, but it is arguable as to if it applies outside of national boundaries and to non-citizens (Flaherty, 2015, p. 23). The argument is nuanced with some arguing for oversight outside of the US Executive’s security structure, while others argue for a FISA system with greater review ex-post (Flaherty, 2015, p. 33). Quoting Martin Flaherty (2015) in taking a side, he says that under the US Constitutional amend. V “the Due Process Clause provides that no person shall be deprived of Life, Liberty, or Property without Due Process of Law” (p. 34). Due Process is important because the name of the game with drone technology is to kill a target precisely and clandestinely; the determination of who is a target is a tightly held secret in the national security world. The US public is not privy to targeted kill lists, so it becomes all that much more necessary to ensure strong norms around Due Process prevail. The going trend is that the intelligence community is not planning on transparency any time soon.
Due Process hits close to more humanitarian issues around drone use in counterterrorism. The status and behavior of those targeted by drones are imperative to the overall discussion. As discussed above, the legal treatment of combatants is a lot different than that of non-combatants. If drones are carrying out clandestine kills the same argument for due process is legitimate for combatant status. Megan Braun and Daniel Brunstetter (2013) speak abstracting of status in saying, “primary military advantage from targeting suspected militants is killing those in the process of planning, or having the intent and capability, to carry out lethal attacks. . . the US has the right to aim its drones at anyone seen as significant” (p. 314). Pushing aside how terrifying that sounds if any intelligence is off or miscommunicated the status of a potential target might change instantaneously. The risk for error appears quite high.
Recall for instance the argument of Asal & Findley (2012) of action- versus actor-based assessment of terrorist activity (p. 476). If either of those produces noticeably different calculations, from which of those is the target list based? If one method honestly shows half of the events and therefore combatants to be erroneous but that they were still targeted and killed, what does that exactly mean for human rights?
This is compounded significantly by signature kills which are targets that only fit the description of a terrorist, but that might not be a terrorist at all. Quoting Thomas Gregory (2015) “so-called signature strikes are not directed at known individuals, but unnamed and unidentified targets whose behavior appears suspicious” (p. 205). The greatest examples of the pitfalls in signature strikes come from the March 17, 2011, massacre of 42 people by a drone strike in Pakistan meeting to settle a Chromite mine dispute (T. Gregory, 2015, p. 207). The group, which ten days before the massacre notified officials of their meeting, were targeted because they were gathered in mass and resembled the men of their culture (T. Gregory, 2015, p. 207). T. Gregory (2015) while quoting Michael Boyle (2013) says, “adoption of signature strikes makes indiscriminate killing a policy and reflects an underlying indifference to the combatant status of potential victims that is at odds with much of the legal and ethical foundation of modern warfare” (pp. 205-206). It raises numerous questions about the efficacy of drones and the principal of proportionality.
Flaherty (2015) says, “no private interest can be more important that the right to life . . no government interest outweighs preventing a potentially catastrophic terrorist attack” (pp. 38-39). This is the normative basis this essay uses to grapple efficacy and proportionality in drone strikes. Are drone strikes efficient in their goals especially in an environment of indiscriminate killing? It is a fact that indiscriminate killing has attributes that make it attractive to both the state and non-state actor. Jason Lyall (2009) communicates this in saying indiscriminate violence actually reduced the mean number of insurgent attacks relative to nonshelled villages. Moreover, commonly cited triggers for insurgent attacks, including the number of casualties inflicted and the amount of property damage suffered, are either negatively correlated with insurgent violence or statistically insignificant. (p. 332) Lyell (2009) concludes that indiscriminate violence feeds into the notion the terrorist cannot credibly provide safety and the presence of a terrorist will endanger noncombatants (p. 337). The benefits to indiscriminate violence highlight a potential causality for signature drone strikes.
Game theory provides another highlight for the propensity for drone attacks and signature strikes. Daniel Jacobson and Edward Kaplan (2007) communicate the abstract notion of game theory in saying when terrorists are more patient than the government, the stationary equilibria provide stable but higher levels of violence. Alternatively, when the government accounts for the future more, even though the resulting pattern of violence exhibits cyclic or chaotic behavior in the terror attack and government hit rates, the overall level of violence is much lower. When both the government and terrorists value the future equally, the terrorist retains the upper hand because of their overall first mover advantage. (p. 789) Game theory is rather complicated and hard to understand at times. The takeaway is that there are upsides and downsides to the level and focus of fighting for either side of the war on terror. As well, drone strikes allow the state to take advantage of the future outlook which reduces overall violence.
The principle of proportionality brings to close the subsection on targeted killing. Proportionality can have wide reverberations in violence surrounding terrorist activity. Take for instance the second intifada in Isreal in 2002. Nir Gazit and Robert Brym (2011) tell the story of rising support for Hamas being met with even harsher countermeasures by Isreal, only to have the support for Hamas grow (p. 868). Isreal at the time instituted a sweeping political assassination program of Hamas leadership to the feverish frustration of the United Nations and the international community (Gazit & Brym, 2011, p. 866). Gazit and Brym (2011) argue that because of political contingencies overriding cost-benefit analysis in Isreal the result of their overzealous attack on Hamas was not positive (p. 872).
Another look at proportionality in targeting terrorist leaders comes from Wojciech Grabowski (2009) in saying “groups that are smaller and younger are more vulnerable to decapitation than more stable and older organizations. Additionally, the magnitude of this effect decreases over time” (p. 28). In the context of Grabowski’s (2009) research, decapitation is referring to the targeting killing and not precisely decapitation. In the framework of this essay, the dynamic between a young group and old group show another point of contention in the principle of proportionality in drone strikes. Grabowski (2009) makes another implicit argument for criticism of proportionality in saying “killing terrorist leaders without making any effort to capture them alive makes it impossible for states to gain further information about a group or its network” (p. 33). It would almost seem rationale if it were true that the intelligence community would have a loud voice in advocating for the capture and not the death of potential information. Wrapping up this subsection on proportionality, Braun and Brunstetter (2013) say “the government needs to update its moral vocabulary to take into account the particularities of using drones in an asymmetric struggle against non-state actors outside an official zone of war” (p. 320).
Detentions and PMSCs: These two subjects will be combined because their relationship with each other is noted. Before diving into CIA black sites and detention of terrorist, the domestic aspects as researched by N. Murray (2010) are important to cover.
US Citizens in Prison: In the aim of being comprehensive, this essay has covered what counterterrorism does to the US citizens. Minorities in the US have always had a heated relationship with the prison system; however since 9/11 racial profiling has increased within the prison system exacerbating the already horrible scenario facing minorities. For instance, N. Murray (2010) states in 2009 there was a grave concern for African-American males converting to radical Islam in prison as the prison system and African-American men have a noted historical relationship with Islam (p. 19). However, N. Murray (2010) counters this fear by quoting some data in saying a “January 2010 Anti-Terror Lessons of Muslim-Americans suggests that the evidence might be thin, given the way Muslim Americans are policing their own communities (p. 19). Interestingly enough, those who harbored a fear of radical converts in prison stated that one-hundred and thirty-nine American Muslims since 9/11 have been arrested or convicted of terrorism justifying their fear. This is regardless of the same fact that over that same period there has been over One hundred and thirty-six thousand murders in the US (N. Murray, 2010, p. 19).
Non-Citizens in Detention: While the story for those deemed enemy combatants by the US in custody isn’t any worse or better than US Citizens, the scenarios the prisoner’s face are entirely more muddy than the US citizens. Dawn Rothe and Victoria Collins (2014) allude to this gray area of state activity in saying “in the basic proposition that the state of exception involves a suspension of the law: where international law is abandoned in the name of national security. . . we are in a lawless world where detainees are in a legal limbo or a black hole” (p. 375). They are referring the sweeping powers granted to the US Executive to combat terrorism, and the legal jargon used to classify detainees as neither armed combatants or civilian criminals rendering them without any rights. The zenith of this new-found terrorist limbo traces back to the terror attack of 9/11 like so many other processes of counterterrorism. Rothe and Collins (2014) communicate “the Patriot Act of 2001 and 2005 and the Intelligence Reform and Terrorism Prevention Act of 2004, are other examples where state violence is conducted through the law, expanding its powers and reducing those of civilians as well as alleged or suspected terrorist” (p. 379).
In 2001, the US authorized a state of emergency that has been kept in place since and was codified to carry on past 2013 through another extension of the AUMF (Rothe & Collins, 2014, p. 379). About detention and targeted killing, the Executive also uses Presidential Authority to almost singlehandedly control US counterterrorism actions. Moreover, the President can directly pick those who are up on targeted kill list, and the status of detainees held in extrajudicial prisons ran by PMSC (Rothe & Collins, 2014, p. 381). Presidential Authority also allows the Executive to bypass FISA or other federal courts (Rothe & Collins, 2014, p. 380).
One of the more sinister parts of detaining terrorists and the subject that brings PMSC back in the conversation is the torture and humiliation of prisoners at the hands of PMSCs and military personal in clandestine prisons. Mentioned above was the Abu Ghraib prison torture scandal of 2003. What were the causes of that scandal and what does it mean for PMSCs in general? Scholars like Kristine Huskey (2012), George Mastroianni (2011), and Bernardo Zacka (2016) find the cause to be in multidimensional causalities. They look at the organizational attributes of the operating staff and employer, the chain of command along the division lines of military and contractor, as well as the personal sexual deficiency of particular PMSC workers at Abu Ghraib.
Zacka (2016) finds much fault in adhocracy, in quoting him “Abu Ghraib as an instantiation of a distinctive organizational model, adhocracy, that relies extensively on the delegation of improvisation and practical judgment to low-level operators” (p. 39). Diving deeper, Zacka (2016) finds even the absence of organizational standard operating procedures to feed the adhocracy of the PMSC in charge of Abu Ghraib (p. 44). In quoting Zacka (2016), he warns, reliance on adhocracies, however, comes at a risk: any increase in the discretionary power of frontline soldiers, when it comes hand in hand with a relaxation in the stringency of hierarchical monitoring, is a decrease in the safeguards that detainees are entitled to. (p. 54)
Mastroianni finds fault for Abu Ghraib in the sexual deficiencies of the guards in charge of prisoners. In quoting Mastroianni (2013), he says stacking naked prisoners in a pyramid, attaching electric wires to detainees, forcing men to simulate fellatio and stand against the wall and masturbate were all the creative work of the soldiers prosecuted and no one else. These acts were not performed at Guantanamo, and quite likely were unique to this group of soldiers. (p. 60) Mastroianni is partially correct with his assessment; the prison guards were tried and convicted of sexual crimes committed on their free will (Mastroianni, 2013, p. 64). In the end, Mastroianni (2013) worries that we squandered “our chance to debate the morality and efficacy of torture and enhanced interrogation techniques on a group of sexualized thugs? As counterterrorism supplants counterinsurgency as our strategic focus, warfare moves further into the shadows” (p. 65). His worry as of 2017 appears to hold a lot of weight.
Abu Ghraib highlights the fact the PMSC’s, even though they are private, can commit the same atrocities as militaries and state apparatuses. The problem becomes the fact that there are little regulation and applicable humanitarian and human rights law that hold the PMSC accountable in the same way a state would. Huskey (2012) asserts that “existing international law does not go far enough in the contracting phase or the post-conduct phase, to prevent and account for misconduct by PMSCs personnel” (p. 205). Huskey (2012) for the sake of her research breaks the life of a PMSC into three categories (p. 195-196). This is rather convenient because she can highlight within those categories where accountability of PMSCs suffers the greatest and in effect causes greater suffering on combatants that are in the PMSCs care (p. 205). Huskey (2012) concludes by saying most important is the inability of international law to assign responsibility to states and other entities at significant points of PMSC and personnel interaction with states and individuals. Montreux and the Draft Convention – neither which is currently binding – illuminate these gaps, among other, and highlight the need for more comprehensive international and domestic law if full accountability in all three phases is to be achieved. (p. 208) It is rather challenging to try and counter Huskey’s argument when presented with the research found in this essay. The same black hole of international law that applies to a detained terrorist refers to the PMSC as well. However, only one of those entities can benefit from that situation. While technically, by international law, treating a terrorist as a war combatant would give that terrorist the same rights as the state fighting them. In reality, that is not always the case. Once detained, the terrorist is not considered a war soldier or civilian criminal, as mentioned numerous times in this essay.
Human Rights, the Future, and Conclusions
This final section plans to define further the various human aspects that are tossed around in this essay. Drone missiles hit and kill people often with collateral damage to the community. Torture while being detained without any rights has a very real effect on the individual captured regardless of their guilt in the alleged crime. The US citizen has not exactly signed on to have their privacy, liberty, and safety legally stripped from them on the altar of national security. At the minimum, the US would like to have a stake in their national security which resembles transparency, accountability, and respect for domestic and international human rights. As well, this last part will set out to comment, rather lightly, on what the future of counterterrorism shall resemble. The lightly is stressed because this essay contends that the status quo of human rights in counterterrorism will prevail if not become worse in time. However, the situation cannot be entire pessimistic as the global community has faced larger obstacles than what terrorism has presented thus far. This is not to say it will remain faithful until the end.
Humanity: The human rights law and humanitarian laws either absent or present in counterterrorism are as nuanced and abstract as the rest of the topics. For instances, T. Gregory (2015) worries “the problem is that the law of armed conflict are much less prohibitive than people tend to assume” (p. 200). In summarizing his continuing thoughts, Gregory (2015) has a concern as well that the law of armed conflict privileges military necessity above civilian immunity (p. 200). How that applies to human rights is that military necessity might see it worthwhile to indiscriminately kill the very people it is charged to protect. Or there could be the potential for a precipitous yet steady decline in citizens’ rights supplanted by a permanent derogation of state obligations to its citizens. As abstract as that sounds, it is much easier to say that means a constant and permanent state of emergency or exception exactly like discussed above with the AUMF. On a factual note, the AUMF is still in effect and used to justify the use of force outside of war zone, which in and of itself to some represents a breach of humanitarian law (T. Gregory, 2015, p. 202).
The principle of proportionality Braun and Brunstetter (2013) researched extensively represents areas of potential breach of international law. Take for instance the CIA’s track record in drone attacks and collateral damage. Braun and Brunstetter (2013) place the percentage of attacks resulting in collateral damage to be at twenty-three percent as compared to a one percent average for the military (p. 316). Braun and Brunstetter are correct in stating that the one percent threshold the military can meet falls out of the realm of possibility for the CIA (p. 320). They conclude the twenty-three percent rate is entirely too high to be considered proportional. There is an international obligation that violence in armed conflict is proportional and humane. This is highlighted above when discussing Israel’s targeted killing program against Hamas.
The human rights surrounding detentions and intelligence are at least a bit more black and white than issues facing drones and PMSC. But, there always remains a large cloud of discourse pulling the spectrum of thought back and forth around human rights. The most obvious human right to mention is due process or habeas corpus. Counterterrorism, with its extrajudicial detention, targeting, and indefinite imprisonment, are in stark contrast to the right to counsel, to know what the crime alleged is, and most apparent are the right to life.
The UN 2016 Drone and Counterterrorism Report reaffirms in recommendation (f) that all measures taken to address the threat posed by foreign terrorist fighters must comply with the international human rights law; specific offences that criminalize related training or travel must comply with the principle of legality; and all prosecution for those offences must fully comply with fair trial guarantees, in particular, those relations to the presumption of innocence. Regarding detention and possible torture by PMSC or soldiers, The UDHR places high importance on the banning of torture and humiliation (Alston, 2013, pp. 238-239). While discourse on the status of detainees and therefore the right to not suffer from enhanced interrogation techniques or torture is lively, this essay takes a normative claim that human rights both civil and economic supersede any other rights on this planet and therefore, there is not exemption allowing a state to torture a person.
These few direct human rights concerns barely scratch the surface when dealing with counterterrorism. Admittedly, space requirement leaves out the possibility of discussing surveillance rights which deal with both domestic and international law to a greater degree than many other human rights. This essay is not as exhaustive as it would like to be, but then any work on this subject suffers the same fate.
Futures: The future of human rights in counterterrorism does not look the brightest. However, much of the global system is being strained to new degrees never witnessed before. This subsection will be brief as the status quo for human rights will remain steady. There is a silver lining. Regarding PMSCs, on top of focusing accountability on the thematic categories of a PMSC contract, corporate social responsibility is an area of possibility. If we were to see a rebirth in corporate social responsibility, the PMSC could see a rise in the overall level of compliance as the business world increased (Francioni, 2008, p. 964). As of this moment, Francioni (2008) notes however that soft corporate social responsibility is not useful (p. 964). Christopher Mandernach (2007) envisages not a redrawing of the law of war, but an adaptation that addresses combat status (p. 171). Mandernach (2007) increases the number of categories a combatant can fall into and in turn, expands the spectrum of human rights protection based on a fighters group (p. 171). This is promising because his studies take into account the black hole of law and exploitation certain combatants fall within. Even look at the new US administration has a silver lining. Hal Brands and Peter Feaver (2017) in analyzing President Trump outlook on counterterrorism opinion his best option for success is to maintain the same pattern the Obama administration took, but with a slight ramp up in power (p. 36). If the President will follow that advice or instead decide to walk with a big stick remains to be seen. The end of this subsection in the futures, however, is without any silver lining. Ben Anderson (2011) discusses the oscillation of insurgents between active and non-active fighting (p. 221). He warns that because of our modern definition of continuous status and permanent war, the lines between active and non-active do not exist. In quoting Anderson (2011), he says modern insurgencies oscillate between extended periods of absence as a function of the insurgents’ dispersion and moments of disruptive, punctual, presence. . . the population thereafter becomes central to counterinsurgency because, at the most basic level, it is assumed to provide the condition of possibility for an insurgency. (p. 222) Anderson is in a roundabout way saying that because of the oscillation in status, people are the terrorist, or at least will become the terrorist when they are activated. That is alarming when the goal is not to have a perpetual war on terror that is essentially an everywhere and everybody war.
Conclusion: This essay attempts to highlight the affronts to human rights that counterterrorism presents. Terrorism and counterterrorism are here to stay as modern incarnations of armed conflict, and there is considerable pushback at trying to rock the boat for a change. Just as the world has opened up economically with interconnectedness, the industry and processes of armed conflict have followed that same path of diversification, division, centralization, and adhocracy. This manifests in new methods of conflict like targeted killing, the use of PMSC as an outsourcing for labor and the advanced detention of apprehended combatants. All three areas represent noted concerns for the respect of human rights for civilians in the US and those allegedly guilty of terrorism often held without any chance for defense or protection. At most, many detainees are subject to torture and humiliation and enhanced interrogation technique.
The outlook for the future does not look that promising for human rights. The goal with PMSC is to move away from adhocracy. However, the positive potential for human rights moving forward are of a decidedly ad hoc nature. Those piecemeal solutions look at fixing nuanced aspects of proportionality in drone attacks, accountability of PMSC and their contracts, a rebirth in corporate social responsibility and an expansion of combat status to cover non-traditional fighters. None of these solutions promise much hope when the climate in counterterrorism is continually storming up towards a greater degree of permanency in fighting. This is shown in discounting all people as potential insurgents as a warped sense to justify the power to attack anybody, included US citizens. Ultimately, the closing idea of this essay is not to change or create a new the law of war, because expanding the status of combatants allows the existing laws to work. Rather the expressed desire is to walk back to a time before the US lived in a permanent AUMF, Patriot Act, NSA surveillance world, never ending states of exception and an absolutely powerful President.
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Speaking is Mr. Emmerson
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