Obama Should Follow-Up With Action, Adherence to International Law
May 24, 2013
President Obama’s decision to lift his own ban on detainee transfers to Yemen suggests he may finally have the political will to follow through with his pledge to close Guantanamo. But his reaffirmation that the US is at war with unnamed and undefined ‘associated forces’ suggests little hope for real transparency.
Kenneth Roth, executive director

(Washington, DC) – United States President Barack Obama’s new call to transfer detainees from Guantanamo and wind down the “war” with al-Qaeda could jumpstart a US counterterrorism policy more consistent with US human rights obligations. However, in his speech on May 23, 2013, at the National Defense University, Obama failed to clarify many issues related to the US targeted killing program, such as how the US determines who can be targeted and under what circumstances.

“President Obama’s decision to lift his own ban on detainee transfers to Yemen suggests he may finally have the political will to follow through with his pledge to close Guantanamo,” said Kenneth Roth, executive director at Human Rights Watch. “But his reaffirmation that the US is at war with unnamed and undefined ‘associated forces’ suggests little hope for real transparency."

Obama’s speech touched on many issues concerning the US use of drones in targeted killings and the detention facility at Guantanamo Bay, but left important questions unanswered, Human Rights Watch said. The US should ensure the legality of its targeted killings program, including by increasing transparency and public accounting for civilian casualties. The US should also transfer Guantanamo detainees to home or third countries, end the use of fundamentally unfair trials in military commissions, and prosecute the remaining detainees before US civilian courts.

Targeted Killings and “Perpetual War”
Obama’s statement that he would not sign any expanded authorization for war and would work with Congress to both narrow and ultimately repeal the current authorization for the use of military force suggest a commitment to rejecting a framework of “perpetual war.”The Obama administration has never fully disclosed the legal framework it applies to its targeted killings program or the criteria it uses to identify targets, beyond general statements of the law. In his speech, Obama essentially affirmed prior statements of administration officials on targeted killing policy although he noted that the same rules applied to the targeting of US citizens and non-citizens alike. He also said that targeted killings would be limited to situations in which capture is not feasible.

But he failed to address the meaning of “imminence” when determining whether a terrorism suspect poses an imminent threat to the US, or explain how it determines combatant status. He also did not discuss the widely reported practice of “signature strikes” – attacks on people whose identities are unknown but who are deemed to be combatants by virtue of behavior or other “signatures” that do not necessarily meet international law requirements. Such attacks may be unlawful.

A Fact Sheet released by the White House during Obama’s speech purported to set forth additional limits, but it is an unclassified summary of a classified document, and lacks precision or key definitions. Obama said he had signed a Presidential Policy Guidance governing the use of force against terrorism suspects and that the guidance had been provided to Congress, but that guidance remains classified. Greater clarity is still needed on the targeted killing policy so that the public is able to assess compliance with the applicable international law, Human Rights Watch said.

“Obama said that there would be more limits on targeted killings, a step in the right direction,” Roth said. “But a mere promise that the US will work within established guidelines that remain secret provides little confidence that the US is complying with international law.”

Transfers of Guantanamo Detainees
President Obama said he was lifting the administration’s ban on the transfer of Guantanamo detainees back to Yemen. The ban was imposed following the attempted bombing of a US airliner on Christmas Day 2009, allegedly planned with the participation of al Qaeda in the Arabian Peninsula, a Yemen-based group. He also announced the appointment of a senior envoy in the Departments of State and Defense to oversee the transfer process and urged Congress to lift restrictions it imposed on detainee transfers.

Of the 166 prisoners now at Guantanamo, 86 were designated by an inter-agency task force in 2010 as eligible for transfer to their home or third countries. Over the last two years, Congress imposed various forms of restrictions on these transfers that made it more difficult – but still possible – to transfer detainees out of Guantanamo. The latest of these require the administration either to certify that detainees will not become involved in terrorism after release or to waive that certification by asserting that the transfer is in the interests of US national security and that the risk of involvement in terrorism has been mitigated by undefined “alternative measures.”

But even if the administration had been willing to certify or waive congressional restrictions, its own self-imposed ban on transfers to Yemen prevented the release of 56 Yemenis, the largest group among the 86 detainees cleared for release.

“Lifting the ban on the transfers to Yemen is an important step for closing Guantanamo,” Roth said. “But there will be no light at the end of the long Guantanamo tunnel until Yemenis and other detainees actually start being transferred.”

Military Commissions and Indefinite Detention
In his speech, President Obama broke little new ground on the issue of prosecuting Guantanamo detainees except to signal a plan to transfer some to the US for trials before military commissions. While moving the commissions to the US might address some logistical concerns, it would not change the fact that they are fundamentally unfair.

Obama addressed the situation of 46 detainees who were designated by an inter-agency task force as “too dangerous” to release but who could not be tried – in some cases, he said, because the evidence against them had been compromised or was inadmissible in court. While Obama said he was confident this “legacy problem” could be resolved consistent with the rule of law, he provided no indication that the 46 men would not be detained indefinitely. If these detainees cannot be prosecuted, they should be released, Human Rights Watch said.

“Prolonged indefinite detention without charge or trial violates international human rights law,” Roth said. “But Obama’s apparent plan to move detainees to the US for prosecution before discredited military commissions relocated in the US is not the answer.”

Though their rules have been rewritten three times since the military commissions were first formed in 2005, and additional procedural protections were added under Obama's presidency, they still do not meet international fair trial standards, Human Rights Watch said. Among other flaws, the commissions lack judicial independence, allow the admission of certain coerced testimony, permit the military to hand-pick the jury pool, and fail to protect privileged attorney-client communications.

“Obama should take to heart the resounding applause to his statement that Guantanamo should never have been opened, and close it once and for all,” Roth said. “Ending indefinite detention, restoring the use of federal civilian courts, and acknowledging the wrong that has been done to the men imprisoned illegally would show the president wants to close not only the physical site of Guantanamo, but also the idea of Guantanamo.”