Redoing the Human Rights First Report Card VI

By Benjamin Wittes
Thursday, January 13, 2011, 7:28 AM

The Obama administration does badly on each of the final three elements of the Human Rights First report card. On the first of these, the group writes,

Grade: C

Accountability and Oversight of U.S. Private Security and Other Contractors. Private contractors continue to outnumber U.S. military forces in Iraq and Afghanistan, and both the surge in Afghanistan and the drawdown in Iraq require additional support from private security and other contractors. The Obama Administration supported the establishment of an international “code of conduct” for private military and security contractors, an important framework for future accountability. However, it has failed to hold private security contractors in zones of armed conflict and elsewhere accountable for violations of international and domestic law, including incidents involving allegations of torture.

I know little about the issues surrounding private security contractors, so I don't feel qualified to evaluate either HRF's claims or the Obama adminsitration's performance in this area. I will say only that to the extent the group's complaint in the last sentence rests on the Obama administration's assertions of the state secrets privilege in cases like Jeppesen, it is really a reiteration of the criticism that Bobby evaluated here concerning "abuse of the state secrets privilege"--and I agree fully with Bobby's analysis.

I do feel qualified to evaluate this claim--and I find the grade ungenerous:

Grade: D

Articulating a Rule of Law Framework for Targeted Killings. The Obama administration over the past year dramatically stepped up its secret program of targeted killings, particularly along the Afghanistan-Pakistan border, but has failed to adequately articulate the legal basis for the program and how its choices of targets meet the requirements of international law. Greater transparency is necessary to determine the legality of the program and can be provided without disclosure of targeting decisions in individual cases.

I agree with HRF that the Obama administration should say more regarding the legal framework for targeted killings. But the administration has actually made real progress in this direction--most notably the important speech by Harold Koh last year. I certainly wouldn't give the administration a D on this. What's more, I also would not define the category as HRF does. Rather, the axis on which I would evaluate the administration is the development, use, and legal defense of new counterterrorism and national security instruments--targeted killing being a major one. I give the administration high marks on this front. Targeted killing, to be sure, began in the Bush administration, but the Obama administration has dramatically increased its use and developed it into a far more robust tool. This has some disadvantages, to be sure; nobody talks after a Predator strike, and the sites these strikes obliterate are sometimes intelligence gold mines. But targeted killing also has big advantages. Most important, it permits the very small-scale projection of force against very small groups of people who might otherwise require larger-scale military action to neutralize. One does not want to overstate the importance of the rise of drones, but it seems to me very promising for certain purposes. I would give the administration an A- in this area. My praise is tempered only by the belief (shared with HRF) that the administration needs to talk about its legal position more in public and the worry (probably not shared by HRF) that the administration's failure to develop a coherent detention policy and a sustainable interrogation policy will encourage the overuse of targeted killing in the long run--if that isn't happening already.

HRF's final grade involves rendition--and it is also lousy:

Grade: D

Extraordinary Rendition and Diplomatic Assurances. The Obama Administration continues to assert the right to transfer detainees to other countries without the protections of legal process based on diplomatic assurances from the receiving country that the detainee will not be abused, even where that country is known to abuse and torture detainees. No information is provided on the standards for use of diplomatic assurances or the means to monitor the treatment of detainees transferred pursuant to such assurances.

Here I cannot offer a grade, because I would not grade the administration on this point at all. I agree with its--and the Bush administration's--position that if the government believes it unlikely that a detainee will be mistreated if returned home, it is lawful to transfer him. And I agree with it as well that diplomatic assurances from his home country can be probative of the likelihood of mistreatment. How probative, to be sure, depends in part on that country's human rights record, but it also depends on how reliable similar assurances from that country have been in the past. What's more, there are going to be cases where foreign governments violate the assurances they give. We can try to minimize that, but this is not an area in which we can possibly obtain perfect compliance. If we demand perfect confidence that every detainee not be abused, the result will simply be to impede the goal--so important to HRF--of reducing detention. Finding countries in which to resettle detainees is far harder than sending them home, after all. In HRF's world view, there are a great many detainees whom it is unlawful to hold and unlawful to release to the only countries (their own) that will take them. If one accepts HRF's view of the issues surrounding both detention and release from detention, the only lawful course for those the government cannot prosecute and cannot resettle in Europe and thinks might be abused at home is to bring them to this country and free them here. I don't believe the law does require that, and I don't believe it should.