How to Conduct Effective Counterterrorism That Reinforces Human Rights BLUEPRINT for U.S

How to Conduct Effective Counterterrorism that Reinforces Human Rights BLUEPRINT FOR U.S. GOVERNMENT POLICY

DECEMBER 2014

Human Rights First

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HOW TO CONDUCT EFFECTIVE CO UNTERTERRORISM THAT REINFORCES HUMAN RIG HTS

“Unless we discipline our thinking and our actions, we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbounded powers more suited for traditional armed conflicts between states.”

President Barack Obama, National Defense University, May 23, 2013

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policies that are essential to our security—that Introduction are under-emphasized and under-resourced. The United States has now been involved in The current national security environment more than a decade of war. Despite 9/11-era al prioritizes military responses to terrorist threats, Qaeda being diminished to “a mere shadow of through a legal and policy framework that puts its former self,”1 our country’s counterterrorism the United States on a perpetual war footing. strategy still heavily relies on kinetic options, The emphasis on ad hoc, military action has justified under the 2001 Authorization for the arguably increased, rather than diminished the Use of Military Force (AUMF), which was attraction to terrorism and has proven enacted specifically to target the perpetrators of problematic for human rights abroad and at the 9/11 attacks and those who harbored them.2 home. Meanwhile the long-term tasks of addressing conditions conducive to violent Now, regionally-focused groups like the so- extremism and of helping other states develop called Islamic State in Iraq and the Levant (ISIL) their own ability to prevent and confront violent and others across South Asia, Africa and the extremism has received insufficient Middle East, are painted with the same brush, consideration and resources. A state of despite having widely-differing capacity, permanent warfare skews toward policies capability and aims. None has the reach of the designed to eliminate—rather than manage and organization that planned and conducted the 3 mitigate—threats, an unrealistic goal that leads 9/11 attacks and “[t]he threat complex, to unbalanced and unhealthy policy results. The sophisticated and large scale attacks from the longer the United States remains on a war core of al-Qa’ida against the US Homeland is 4 footing, the more likely it is that extraordinary significantly degraded.” powers become the norm. In the worst case, Too much of the United States’ strategy and this means that policies which are the hallmarks public discussion of counterterrorism continues of dictatorships and enemies of human rights— to operate as part of the post-9/11 war such as detentions without charge or trial, extrajudicial killings, torture, military tribunals, and mass surveillance—also become 1 President Barack H. Obama, “State of the Union Address,” normalized. US Capitol, Washington, DC, February 12, 2013, http://www.whitehouse.gov/the-press- In recent years, American military and office/2013/02/12/remarks-president-state-union-address. diplomatic leaders have encountered the high 2Authorization for Use of Military Force (Pub L. 107-40, costs of over-broad recourse to the use of force: September 14, 2001), 107th Congress, (2001-2002). partners and allies becoming reluctant to 3 2013 Worldwide Threat Assessment of the US Intelligence cooperate on counterterrorism operations, Community: Hearings Before the Senate Select Committee on Intelligence, 113th Cong., 1st Sess. pp. 3-4 (March 12, authoritarian leaders cynically pointing to U.S. 2013) (statement of Dir. of Nat'l Intel. James R. Clapper). excesses to justify their own repressive policies, http://www.intelligence.senate.gov/130312/clapper.pdf. 4 and loss of support and trust in American efforts 2014 Worldwide Threat Assessment of the US Intelligence Community: Hearings before the Senate Select Committee among global publics. At home, on Intelligence, 113th Cong., 1st Sess., pp. 4 (January 29, counterterrorism professionals continue to point 2014) (statement of Dir. Of Nat’l Intel. James R. Clapper) to a range of core competencies—non-military available at: http://www.intelligence. senate.gov/140129/clapper.pdf.

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paradigm. The problem of terrorism is real but chance to step back from short-term threat current threats are not the same as those posed control and refocus on long-term threat by the al Qaeda of 2001, more than 13 years mitigation—as well as returning to the core ago, and cannot be defeated with the same ideals that Americans risk their lives abroad and response. Even when concerns arise that call at home to protect and defend. for immediate action, the United States must not allow itself to be distracted from the task of RECOMMENDATIONS shifting to a legal and policy framework for Ensure counterterrorism assistance promotes— counterterrorism that reinforces human rights. rather than undermines—the rule of law and human Observing and prioritizing the advancement of rights. human rights is not only central to stemming the spread of violent extremism, it is fundamental to  Design partner country counterterrorism American values. assistance programs to include significant support for rule-of-law institutions and To this end, this blueprint proposes specific human rights training for military and police policy changes in three areas: ensuring forces—including helping partner agencies counterterrorism partnerships and assistance create mechanisms analogous to the promote, rather than undermine, human rights; uniformed military legal corps, complaint aligning core counterterrorism competencies and review boards, and civilian oversight with the goal of promoting rule-of-law societies; mechanisms; assisting national human and shifting counterterrorism policy out of a rights institutions and independent civil wartime legal framework, which makes human society organizations to oversee their rights abuses more likely and harder to redress. countries’ counterterrorism policy; supporting the International Institute for Justice and the Rule of Law;5 and increasing the judicial capacity of partner nations to hold their counterterrorism forces Summary accountable. The United States should work with allied countries such as the United The long-term success of counterterrorism Kingdom, France, Canada, and Australia, strategies demands two things: the preservation which have significant counterterrorism of our free, open, rule-of-law-based society at experience, to develop counterterrorism home; and the strengthening of societies whose strategies and assistance programs that governments seek to overcome, and provide leverage relationships with these nations for palatable alternatives to, violent extremists. our mutual benefit. Without the first, we sacrifice American values, and without the second, experience shows that  In situations where other states are involved the United States sacrifices much blood and in armed conflicts with terrorist and/or treasure attempting to counter threats without insurgent groups, include well-resourced actually ending them. Human rights are at the root of success in both areas. After dispiriting 5 International Institute of Justice and the Rule of Law (IIJ), reversals, and re-emergence of threats, the http://www.theiij.org/. rights-compliant counterterrorism model offers a

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training in international human rights law effects of providing military or other and international humanitarian law as an counterterrorism assistance on human integral component of any form of military or rights protections. other security assistance provided to that  Broaden U.S. embassies’ dialogues government. with civil society and human rights  Redress the imbalance in funding under the groups in partner countries to include proposed Counterterrorism Partnership discussion of counterterrorism Fund (CTPF), which currently provides for cooperation, the effects of U.S. only 10 percent of its resources to be used assistance, and to solicit for civilian agencies.6 recommendations for how the United States can advance human rights  Conduct comprehensive interagency protections through its counterterrorism reviews of policy toward U.S. partners assistance. whose human rights records at home are deeply problematic and who promote or  Reform the export control process by give financial support to violent extremists strengthening existing restrictions and abroad, in order to develop strategies to providing more funding for monitoring of the confront those problems. These reviews use of weapons and other equipment after and strategies should be supported by the sale, in order to reduce the potential for following steps: U.S. conventional arms exports to fuel conflicts, grievances and violations of rights,  Insist, in diplomatic discussions and in which in turn provide recruiting grounds for the terms of counterterrorism terrorism. assistance, that counterterrorism partners confront concerns about their  Support reform and expansion of the Leahy own militaries, security forces, and Law, so that it can be comprehensive, police functioning as breeding grounds efficient and redressable in its guidance of for violent extremism and terrorism. U.S. counterterrorism assistance. The president should support reform legislation  Include in the annual State Department which: Country Reports on Terrorism information on actions taken by the U.S.  Expands scrutiny of counterterrorism government to improve assistance to cover peacetime counterterrorism-related human rights intelligence agency efforts. protections in partner nations.  Invests in remediation procedures to  Develop more specific impact retrain, re-evaluate, and eventually assessment criteria for evaluating the restore access to units denied assistance under the Leahy Law vetting process. 6 Heather Higginbottom, Statement to the House Budget Committee, The President's Funding Request for Overseas  Harmonizes State and Defense Contingency Operations Hearing, July 17, 2014 [hereinafter Department procedures, and funds Higginbotham Statement] available at:http://www.state.gov/ enough staff to implement the law’s s/dmr/remarks/2014/229371.htm. provisions promptly.

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Align key aspects of whole-of-government Clarify and limit where the United States is engaged counterterrorism with the goal of enabling rule-of-law in “armed conflict.” societies which respect human rights.  Complete, and share with Congress and the  Modernize counter-threat finance to American public in appropriate form, a increase pressure on state supporters of comprehensive threat assessment that violent extremist groups, and promote inter- reflects current realities. state cooperation to halt support for those  Support sunset, rather than expansion, of groups from private individuals and the 2001 Authorization for Use of Military institutions. Force (AUMF).  Where disclosure would not jeopardize  Urge Congress to repeal the 2002 Iraq efforts to prevent terrorism or cut off AUMF and to debate and pass narrowly funds to terrorist groups, confront tailored authorizations for any future uses of partner nations with information on their armed force (as, for example, with ISIL) that role in enabling or actively financing explicitly define the scope of operations, violent extremists, through U.S. specify mission objectives, provide greater diplomatic channels, and hold partner transparency and congressional oversight, governments accountable. and comply with domestic and international  Urge reform of counterterrorism finance law. tools such as the Financial Action Task  Address global public concerns about Force (FATF) to ensure governments legality and legitimacy of U.S. use of force, do not use these tools as a justification including by: for actions that crack down on legitimate civil society organizations and  Accepting the applicability of political expression. international human rights law to U.S. actions outside the United States.  Ensure that policies intended to deter individuals from traveling abroad to  Disclosing the legal standards and participate in terrorist acts do not violate civil criteria that the U.S. government uses liberties and human rights. to determine who may be targeted with lethal force.  Expand the resources available to local civil society groups and other community-based  Enabling meaningful oversight, the right stakeholders to counter violent extremism to review, and effective investigation of and develop programming designed and/or and redress for civilian harm. implemented by those local groups.  Close the detention center at Guantanamo  Standardize interagency and Bay and publicly explain the procedures nongovernmental partner cooperation as an and rules for detention of terror suspects integral part of counterterrorism strategy. apprehended overseas.  Support the Congress to pass laws that reinforce the ban on torture and cruel, inhuman, and degrading treatment.

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Thus, securing human rights protections also How to Conduct Effective helps reverse the conditions that give rise to Counterterrorism that violent extremism. Maintaining a perpetual war footing has Reinforces Human Rights depleted our resources and created unreasonable demands for the United States to Ensure counterterrorism assistance promotes— have a military response to terrorist threats rather than undermines—the rule of law and everywhere. Instead, the United States should human rights. focus on building counterterrorism partnerships to capitalize on allied resources, while fully Building counterterrorism partnerships that enforcing existing human rights conditions on premise U.S. assistance on respecting human aid and directing assistance specifically to rights provides immediate and tangible benefits promote respect for human rights. to U.S. counterterrorism strategy. Partnering with other nations encourages burden sharing, Recommendations placing an onus on U.S. partners to diminish  Design counterterrorism assistance terrorist networks in their countries, while programs to include significant support for allowing the United States to focus its resources rule-of-law institutions in partner countries, on areas of more immediate need. and human rights training for military and Counterterrorism partnerships also open police forces. This support should include: communication channels and intelligence helping partner agencies create sharing mechanisms, giving U.S. agencies mechanisms analogous to the uniformed further tools to identify and mitigate threats. military legal corps, complaint and review When grounded in human rights and the rule of boards, and civilian oversight mechanisms; law, these partnerships legitimate U.S. assisting independent national human rights counterterrorism efforts in the eyes of U.S. institutions and independent civil society citizens and the international community. But all organizations to oversee their countries’ too often, U.S. partners are engaging in or counterterrorism policy; increasing the promoting human rights abuses that, left judicial capacity of partner nations to hold unaddressed, are counterproductive to their counterterrorism forces accountable for combating terrorism. For example, Nigeria’s human rights abuses they commit; and military and police have been accused of both supporting the International Institute for colluding with Boko Haram and committing Justice and the Rule of Law (IIJ), which human rights abuses in combatting them, while offers counterterrorism training, primarily in some members of Gulf militaries have defected the Middle East and North Africa, focused to ISIL. Moreover, too often, repressive U.S. on strengthening the rule of law, in order to allies have cracked down on legitimate dissent more effectively combat terrorism.7 The in the name of counterterrorism, targeting and United States should work with allied jailing human rights activists on terrorism charges. Repressing peaceful dissent is ultimately self-defeating as it is likely to fuel 7 See http://www.theiij.org/ for more information on the IIJ’s grievances that can result in violent extremism. work.

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countries such as the United Kingdom, confront those problems. These reviews France, Canada, and Australia, which have and strategies should be supported by the significant counterterrorism experience, to following steps: develop counterterrorism strategies and  Insist, in diplomatic discussions and in assistance programs that leverage the terms of counterterrorism relationships with these nations for our assistance, that partners confront mutual benefit. concerns about their own militaries,  In situations where other states are involved security forces and police functioning as in armed conflicts with terrorist and/or breeding grounds for violent extremism insurgent groups, the United States should and terrorism. include well-resourced training in  Include in the annual State Department international human rights law and Country Reports on Terrorism, international humanitarian law as an integral information on actions taken by the U.S. component of any form of military or other government to improve security assistance provided to that counterterrorism-related human rights in government. partner nations.  Redress the imbalance in U.S. funding  Develop more specific impact currently represented by the proposed assessment criteria for evaluating the Counter-Terrorism Partnership Fund effects of providing military or other (CTPF), which currently provides for only 10 counterterrorism assistance on human percent of its resources to be used for rights protections. civilian agencies like the State Department and the United States Agency for  Broaden U.S. embassies’ dialogues International Development (USAID).8 A with civil society and human rights more balanced focus on the work of these groups in partner countries to include agencies in tandem with, rather than as a discussion of counterterrorism supplement to, military action would allow cooperation, the effects of U.S. the United States to make the most of its assistance, and to solicit available resources and lessen reliance on recommendations for how the United the military to solve all threat-related States can advance human rights problems. protections through its counterterrorism assistance.  Conduct comprehensive interagency reviews of policy toward U.S.  Reform the export control process to reduce counterterrorism partners whose human the potential for U.S. conventional arms rights records at home are deeply exports to fuel conflicts, grievances and problematic and who promote or give violations of rights, which provide recruiting financial support to violent extremists ground for terrorism. This can be done by abroad, in order to develop strategies to strengthening the application of unilateral restraint foreseen in Presidential Policy Directive 27. This directive says that “the 8 Higginbotham Statement, supra note 6. United States will exercise unilateral

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restraint in the export of arms in cases violations of life and liberty.10 By requiring where such restraint will be effective or is individual units to be examined, the Leahy necessitated by overriding national Law permits the United States to provide interests.”9 Forestalling human rights assistance to units that pass Leahy Law violations that encourage violent extremists “vetting,” while providing an incentive for is certainly an “overriding national interest” foreign governments to bring the of the United States. The president should perpetrators of gross human rights ensure that the export control process is violations to justice. From 2011 to 2013, sufficiently rigorous by returning items likely approximately 530,000 foreign military and to be used in repressing civilians— police units from 158 countries were vetted communications and surveillance under the Leahy Law.11 The president equipment, for example—to the more should support reform legislation which: restrictive U.S. Munitions List and keeping  Expands scrutiny of small arms on that list. Licenses for exports counterterrorism assistance to cover from the Munitions List require a process of peacetime intelligence agency State Department scrutiny, which includes efforts. Given the central role analysis of human rights implications. The intelligence cooperation plays in president should also support more funding counterterrorism, and the lack of for end-use monitoring of exports by the effective oversight of intelligence State Department. agencies in many countries, the Leahy  Support reform and expansion of the Leahy Law should be expanded beyond Law, so that it can be comprehensive, military and police units, to also cover efficient and redressable in its guidance of assistance to these agencies. U.S. counterterrorism assistance. The  Invests in remediation procedures to Leahy Law prohibits the United States from retrain, re-evaluate, and eventually providing equipment or training to foreign restore access to units denied military and police units where there is assistance under the Leahy Law credible evidence that the units have vetting process. Preventing units from committed gross violations of human rights and have not been investigated or held accountable for these violations. These 10 “gross human rights violations” are limited to FAA Section 502B(d)(1) (22 U.S.C. 2340(d)(I)). 11 Foreign Military Training and DoD Engagement Activities a very short list of the most abhorrent of Interest, 2012-2013, U.S. Department of State, available crimes, being torture, rape, murder, at: http://www.state.gov/t/pm/rls/rpt/fmtrpt/2013/, cited in enforced disappearances, indefinite Stephen Rickard, Statement to the House Foreign Affairs Subcommittee On Africa, Global Health, Global Human arbitrary detention and other gross Rights and International Organizations. Human Rights Vetting: Nigeria and Beyond Hearing, July 10, 2014, available at: http://docs.house.gov/meetings/FA/FA16/20140710/102447/ 9 Executive Office of the President, Presidential Policy HHRG-113-FA16-Wstate-RickardS-20140710.pdf. More Directive 27 (Jan. 15, 2014), available at: http://www. than 99 percent of units vetted were approved to receive whitehouse.gov/the-press-office/2014/01/15/presidential- U.S. assistance, with 2,516 units found to have probably policy-directive-united-states-conventional-arms-transfer-p. committed gross atrocities.

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receiving U.S. assistance is not a goal implementation by the Departments of in itself, but an incentive to reverse a State and Defense should be unified, culture of abuse and impunity. Where and the process of remediation should partner countries lack the mechanisms be closely coordinated between the two of accountability or resources to departments. Implementation of the investigate, try, and discipline members Leahy Law has also been poorly of their militaries, security forces, and funded. The Bureau of Democracy, police, the United States should support Human Rights and Labor vets development of a professional approximately 200,000 units and disciplinary system. Existing individuals per year, with only nine resources—a course module from the Washington personnel and five globally, Defense Institute for International Legal supported by a point of contact in each Studies—are generally inadequate to embassy and 75 people in the Treasury remediate units which have been Department responsible for verifying the denied assistance. The process should identity of each individual proposed for require and resource a human rights sanctions to avoid mixing up two people assessment by the State Department’s with the same name. Where the Leahy Bureau of Democracy, Human Rights, Law has been properly resourced, the and Labor, followed by the design of a impact has been significant: in strategy focused on developing Colombia, the U.S. embassy in Bogota institutions that are central to has two full-time staff positions accountability in the military and civilian dedicated to vetting up to 35,000 security sectors. The administration individuals annually,12 which has should consider expanding programs in resulted in an improved human rights the Defense Department (such as the climate, along with “gains in security Defense Institute Reform Initiative, and stability.”13 The Leahy Law vetting Ministry of Defense Advisors Program, office should be funded at the level of and the Warsaw Initiative Fund), its $5 million per year,14 so that the number supporting institutions (including the of vetters can be increased and Center for Civil-Military Relations at the approval of units expedited. Naval Postgraduate School and the Army Judge Advocate General Corps

(JAGC) school), and through USAID, 12 Nina M. Serafino et al., “Leahy Law” Human Rights which train law enforcement and Provisions and Security Assistance: Issue Overview internal inspection units to properly (Washington, D.C.: CRS, 2014), p. 15. available at: http://www.fas.org/sgp/crs/row/R43361.pdf. respond to allegations of torture and 13 John J. Hamre, forward to Peter DeShazo, Johanna abuse. Medelson Forman, Phillip McLean, Countering Threats to Security and Stability in a Failing State: Lessons from  Harmonizes State and Defense Colombia (Washington, D.C.: The CSI Press, 2009), p. v, Department procedures, and funds available at: http://csis.org/files/ enough staff to implement the law’s publication/090930_DeShazo_CounteringThreats_Web.pdf. 14 provisions promptly. The different This is the amount provided in the FY15 Senate Foreign Operations and State Appropriations bill. provisions governing Leahy Law

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Align key aspects of whole-of-government from private individuals and institutions. counterterrorism with the goal of enabling rule-of-law In the decade before 9/11, al Qaeda was societies which respect human rights. able to raise between $300-$500 million from private donors in Saudi Arabia alone, In the years since the 9/11 attacks, the United which it used to fund operations in Europe, States and its allies have developed creative North America, Africa, the Middle East and tools to prevent violent extremist ideologies from South Asia.16 A decade later, counter-threat taking root in societies and impede violent finance has made significant progress extremist groups from gaining the resources toward halting this flow of funds. But the rise needed to commit large-scale, long-range of ISIL, the Khoresan Group, and Jabhat Al- attacks. Strategies to counter violent extremism, Nusra, among others, demonstrates a like constraining resource flows to violent continuing problem: funding connected with extremist groups and depriving them of a steady or directly from states, including U.S. flow of foreign recruits have played a key role in partners such as Qatar, the United Arab significantly degrading core al Qaeda15 and also Emirates, and Saudi Arabia. The in preventing the emergence of full-blown al administration should: Qaeda affiliates in Indonesia, the Philippines, and elsewhere.  Where disclosure would not jeopardize efforts to prevent terrorism or cut off These tools are a key part of successful funds to terrorist groups, confront counterterrorism and are crucial to preventing partner nations with information on their the next core al Qaeda, Taliban or ISIL from role in enabling or actively financing emerging. But when implemented or scaled up violent extremists, through U.S. without integrating human rights protections, diplomatic channels, and hold partner such policies not only result in violations of governments accountable. human rights but they become fodder for violent extremists, who exploit them to recruit  Urge reform of counterterrorism finance vulnerable individuals to their cause. tools such as the Financial Action Task Recommendations for making each of these Force (FATF) to ensure that policy areas sustainable are below. governments do not use counterterrorism finance tools as a Recommendations justification for actions that crack down  Modernize counter-threat finance to on legitimate civil society organizations heighten pressure on state supporters of and political expression. Too often, violent extremist groups and promote repressive U.S. allies have cracked interstate cooperation to halt support down on legitimate dissent in the name of counterterrorism, targeting and jailing human rights activists on terrorism

15 2014 Worldwide Threat Assessment of the US Intelligence Community: Hearings before the Senate Select 16 Committee on Intelligence, 113th Cong., 1st Sess., pp. 4 Jean-Charles Brisard, Terrorism Financing: (January 29, 2014) (statement of Dir. Of Nat’l Intel. James Roots and trends of Saudi terrorism financing, (December R. Clapper) available at: 19, 2002), available at: http://www.investigativeproject. http://www.intelligence.senate.gov/140129/clapper.pdf. org/documents/testimony/22.pdf.

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charges. Repressing peaceful dissent is and protect refugees. For example, U.S. ultimately self-defeating as it is likely to laws include an over-broad interpretation of fuel grievances that can result in violent what constitutes “material support” and fail extremism. to balance the harm of even miniscule “material support” against the significant  Ensure that policies to deter individuals needs of populations and benefits to U.S. from traveling abroad to participate in interests, of independent humanitarian terrorist acts do not violate civil liberties action. Even more problematic is how and human rights. In September 2014, countries without independent judiciaries President Obama personally chaired a and weak rule of law—including U.S. United Nations (U.N.) Security Council coalition partners Saudi Arabia and Egypt— session that led to the adoption of a may use the resolution as an excuse to resolution intended to help stem the tide of crack down on peaceful dissent. The individuals traveling to participate in terrorist president should: acts and training, as well as related conflicts, outside their own countries (i.e.  Ensure that the domestic “foreign terrorist fighters.”) The resolution implementation of the resolution does requires states to enforce criminal penalties not infringe on human rights within the for a wide range of acts, including United States. attempting to travel abroad to participate in  Take action to ensure that other states terrorist activities or training and providing do not use the resolution to justify or collecting funds to finance such travel. human rights violations. U.S. embassies Although the resolution states that these should monitor, report and raise actions should comply with international concerns about the human rights human rights and humanitarian law, there is aspects of implementing the resolution. no explicit tool—such as a mandate for The president should also encourage oversight by a particular U.N. body and/or the U.N. Counterterrorism Committee, reference to particular standards—to help with assistance from the U.N. ensure that compliance occurs. The acts Counterterrorism Committee Executive prohibited are also defined so broadly that Directorate (CTED), to publish and the resolution may be used to justify promote guidelines on how to secure discrimination, oppression of dissent, human rights while implementing the unjustifiable restrictions on freedom of resolution and to visit countries to movement, and other human rights abuses assess the impact of implementation on in the name of counterterrorism. human rights. The United States has said that its existing  Encourage the U.N. High Commissioner laws—such as legislation that prohibits for Human Rights (OHCHR), the U.N. material support for terrorism—are sufficient High Commissioner for Refugees to meet the requirements of the resolution. (UNHCR), the Special Rapporteurs on But these laws are also problematic for the Promotion and Protection of Human human rights and have made it more Rights and Fundamental Freedoms difficult to facilitate humanitarian assistance while Countering Terrorism and on

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Extrajudicial, Summary or Arbitrary the problems of hostility and mistrust it is Executions, and the Working Group on intended to ameliorate—and even violate Arbitrary Detention to monitor the the rights of those it aims to protect.17 Any implementation of the resolution, to programming that aims to counter violent ensure that other states do not use the extremism should: resolution as a pretext for stifling  Bar efforts to seek intelligence through political opposition or human rights local organizations providing CVE; defenders, revoking individuals’ these efforts are counterproductive and citizenship or to prohibit the movement engender mistrust in the target and/or protection of refugees. community.  Expand the resources available to local  Empower and equip women to civil society groups and other participate in CVE efforts. Experts in the community-based stakeholders to field emphasize the importance of counter violent extremism and develop engaging women for successful CVE.18 programming designed and/or implemented by those local groups.  Focus on strengthening communities’ Countering Violent Extremism, or CVE, capacity to prevent and resist violent aims to reduce the number of terrorism extremism by supporting civil society to supporters by addressing the reasons address the local conditions that lead people become attracted to terrorism in the youth to consider extremist violence. first place: poor social, institutional and CVE programs should also assist civil economic conditions, political and/or society organizations to develop tools religious repression, and the influence of for handling the aftermath of violence in terrorist leaders who promise to improve their communities, through initiatives these conditions and provide greater such as trauma healing and peace and meaning and purpose to new recruits’ tolerance education. lives. Through dialogue, education and the  Support and promote investment in support and leadership of local public-private partnerships such as the communities, CVE can be critical to Global Community Engagement and stopping the growth of terrorist Resilience Fund (GCERF), designed to organizations. CVE can also advance harness capabilities and resources in human rights. Rather than relying on lethal support of community-based projects force to eliminate suspected terrorists in affecting at-risk populations susceptible ways that often harm innocent civilians and to radicalization and recruitment by may violate international law, CVE can

provide affected communities with tools and support to resist violence and create more 17 Georgia Holmer. “Countering Violent Extremism: A constructive solutions to local problems. Peacebuilding Perspective.” United States Institute of Peace. 29 August 2013, available at: However, CVE done poorly can exacerbate http://www.usip.org/publications/countering-violent- extremism-peacebuilding-perspective. 18 Id.

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violent extremists, through youth that NGOs, international organizations, and engagement, education, vocational the private sector are fully engaged “to training, and women’s advocacy.19 complete a vision of American leadership in the world.”21 Through formalized  Encourage the reform of security cooperation, agencies such as USAID, the entities charged with counterterrorism State Department, and others better suited and CVE. Training police and security to non-kinetic operations and public-private forces to deliver services in a partnerships are empowered to use their framework that respects human rights competencies to achieve constructive, and the rule of law and in collaboration, rather than destructive, outcomes. Those where appropriate, with civil society and agencies that are competent in kinetic community leaders, is critical to helping activities can then focus their efforts to use bridge the divide between the security force only when absolutely necessary for sector and civil society. counterterrorism operations. The  Standardize interagency and effectiveness of this approach was nongovernmental partner cooperation as illustrated in Afghanistan, where Provincial an integral part of counterterrorism Reconstruction Teams (PRTs)—comprised strategy. Interagency collaboration and of both military and civilian personnel—were nongovernmental organization (NGO) instrumental in establishing the necessary partner cooperation are both vital conditions in communities to foster components of an effective and sustainable resistance to violent and radical national counterterrorism strategy. Admiral philosophies imbued by the Taliban and James Stavridis has discussed the other violent extremist groups. To importance of this cooperation, noting that strengthen interagency cooperation and achieving our national security objectives NGO collaboration, the administration requires “(the Department of) State in should: diplomacy; USAID in developing the  Provide integrated training in economy and education systems; DEA interagency cooperation and civil- (Drug Enforcement Agency) on crop military relations to both military and substitution to move famers away from civilian personnel in post-conflict growing poppies; and the CIA to understand operations. what is happening on the ground.”20 As such, we must push our agencies to ensure  Create a public diplomacy program that reinforces host nation capacity building

and integration with NGO partners to 19 U.S. Bureau of Public Affairs, Office of the Spokesperson, further counterterrorism objectives. Co-Chairs' Fact Sheet: Creating a Global Fund for Community Engagement and Resilience, Feb. 21, 2014,  Increase contingency funding for the available at: Department of State, for diplomatic http://www.state.gov/r/pa/prs/ps/2014/02/221903.htm. engagement and security operations in 20 Admiral James Stavridis, What the President Meant to Say.., May 2014 , available at: http://www.foreignpolicy.com/articles/2014/05/28/what_the_ president_meant_to_say_west_point_speech. 21 Id.

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order to respond to public diplomacy consensus among national security law experts opportunities and to emerging crises. with government experience, who also believe that there should be increased transparency Clarify and limit where the United States is engaged and congressional oversight regarding the in “armed conflict.” mission, location(s), and parties against whom Throughout the nation’s history, the United the administration believes the United States to States has worked to codify a clear separation be in an armed conflict, and the legal basis for between wartime and peacetime in its laws and these claims.23 Below we set out steps the international law. During wartime, these laws administration should take to sunset the 2001 afford the country more flexibility in the use of AUMF and clarify and limit where the United force, detention, and trial of the enemy. States is at war. These measures will also However, perpetuating this state is dangerous. increase international public support for the It skews our policymaking framework towards totality of U.S. counterterrorism efforts by immediate and often shortsighted responses, showing more clearly the legality and legitimacy rather than long-term policy efforts, which of our actions. prevent threats from emerging. The more the Recommendations United States invokes a state of armed conflict to take advantage of these relaxed constraints,  Complete, and share with Congress and the more likely it is that extraordinary powers the American public in appropriate form, become the norm and, in the worst case, a comprehensive threat assessment that policies drift towards those of dictatorships and reflects current realities. The ouster of the enemies of human rights: detentions without Taliban and the subsequent killing or charge or trial, extrajudicial killings, torture, capture of core al Qaeda’s senior military tribunals, and mass surveillance. leadership severely crippled the organization. As a result, al Qaeda has Course-correction can only be achieved through fragmented into regional affiliates whose limiting the applicability of the United States’ ties to core al Qaeda are tenuous at best.24 claimed armed conflict authorities to situations Today, al Qaeda could be more accurately where armed conflict actually exists under described as a brand that has been co- international law—where hostilities are of opted or franchised by regional actors. sufficient intensity between the United States and another state or sufficiently organized Core al Qaeda envisioned a global jihad armed group.22 This view reflects an emerging and the establishment of a grand caliphate,

forces are sufficiently organized, as evidenced by the 22 ICTY, The Prosecutor v. Dusko Tadic, Judgment, IT-94-1- existence of a certain command structure, and are capable T, 7 May 1997 [hereinafter Tadic], para. 561-568. The of sustaining military operations. existence of an armed conflict against a non-state armed 23 Jack Goldsmith, Ryan Goodman, and Steve Vladeck, Five group under international law is determined by two criteria: principles that should govern any U.S. authorization of force, (1) there must be hostilities, which reach a minimum level of Wash. Post, Nov. 14, 2014 [hereinafter Goldsmith, intensity, such as when hostilities are of a collective Goodman, Vladeck Principles], available at: http://wapo.st/. character or when the government is obliged to respond 24 with military force, rather than with mere police forces; and Dept. of State, Country Reports on Terrorism 2012, Rep., (2) the non-state groups involved in the conflict must be at Ch. 6 (2013), available at: considered "parties to the conflict", meaning that their armed http://www.state.gov/j/ct/rls/crt/2012/.

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but the current terrorist environment is  Sunset, rather than expand, the 2001 comprised of a patchwork of entities, with Authorization for Use of Military Force regional interests and divergent goals. (AUMF). The continued relevance of the Though some regional terrorist groups, 2001 AUMF is becoming increasingly such as ISIL and Yemen-based Al Qaeda in questionable, particularly as combat the Arabian Peninsula (AQAP), claim operations in Afghanistan wind down. In aspirations to attack the United States, the Hamdi v. Rumsfeld, Justice O’Connor, in a U.S. Intelligence Community’s 2013 concurring opinion, said of the 2001 AUMF, Worldwide Threat Assessment notes that “If the practical circumstances of a given these regional groups generally lack the conflict are entirely unlike those of the capacity, capability, and strategic priority for conflicts that informed the development of such an attack. Their competing internal the law of war, that understanding [of who and regional objectives, as well as may be detained until the cessation of limitations on managing, coordinating, and hostilities] may unravel.”26 This concern has deploying trained operatives in the United been echoed by Brigadier General Mark States, mitigate the imminence of such a Martins,27 chief prosecutor for the military threat. The Worldwide Threat Assessment commission trials at Guantanamo Bay, and also notes the threat posed by homegrown former Pentagon General Counsel Jeh violent extremists (HVE) but suggests that Johnson,28 now Secretary of Homeland the risks posed by these individuals are Security. moderate and that they can be properly The 2001 AUMF is, on paper, confined to managed within existing law enforcement organizations responsible for committing or and intelligence institutions.25 helping with the 9/11 attacks and those who Americans outside the counterterrorism harbored them. The administration has community, however, have been subjected officially interpreted those organizations to to a barrage of conflicting and sometimes include al Qaeda and “associated forces,” inflammatory or erroneous information including groups such AQAP in Yemen, and about the capabilities, cohesion, and more recently, ISIL in Iraq and Syria, even intentions of various violent extremist groups. This needs to be corrected, not in a

once-a-year report but in sustained public 26 Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004). communication to Congress and the 27 Karen DeYoung, Afghan War’s Approaching End Throws American people. Legal Status of Guantanamo Detainees into Doubt, Wash. Post, Oct. 18, 2013, available at: http://www.washingtonpost.com/world/national- security/afghan-wars-approaching-end-throws-legal-status- of-guantanamo-detainees-into-doubt/2013/10/18/758be516- 2d0a-11e3-97a3-ff2758228523_story.html. 28 Hon. Jeh Charles Johnson, General Counsel, U.S. Dep’t 25 2013 Worldwide Threat Assessment of the US of Def., The Conflict Against Al Qaeda and its Affiliates: How Intelligence Community: Hearings Before the Senate Select Will It End?, Speech Before the Oxford Union (Nov. 30, Committee on Intelligence, 113th Cong., 1st Sess. p. 4 2012), available at: (March 12, 2013) (statement of Dir. of Nat'l Intel. James R. http://www.lawfareblog.com/2012/11/jeh-johnson-speech-at- Clapper). the-oxford-union/.

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though these groups have little to no which were prepared by several prominent connection to the 9/11 attacks. The vast legal experts, including those who held majority of terrorist groups do not pose the senior legal positions in the U.S. kind or degree of threat to the United States government. These Principles share much that either necessitates or justifies “war,” in common with other proposals put forward even if from time to time, a specific threat by former Bush Administration lawyers.30 may justify use of force. Americans are not Any new AUMF should: at war with Boko Haram, for example, or the  Be limited to specified group(s) and dozens of violent extremist groups that explicitly define the scope of would like nothing more than the notoriety operations. The experience of the that comes with being made an enemy by 2001 AUMF has demonstrated that the United States and the recruiting and how, where, and when the United funding boost that this would bring. States intends to use military force in Establishing a sunset for the 2001 AUMF accordance with domestic and will require Congress and the administration international law can easily become to consider, at some near future date, unclear—and that clarity is important for whether it remains an appropriate and maintaining the legitimacy of a military lawful authorization to deal with the threats mission with the American public, with that exist. allied and partner countries, and with  Urge Congress to repeal the 2002 Iraq the people outside the United States AUMF and to debate and pass narrowly who themselves are affected by terrorist tailored authorizations for any future groups. Because so much of American uses of armed force (as, for example, leadership is grounded in the perception with ISIL) that explicitly define the scope of American respect for the rule of law, of operations, specify mission it is vital that any AUMF written to objectives, ensure greater transparency confront current threats be limited to and congressional oversight, and specified group(s) and be narrowly comply with domestic and international crafted to ensure that force is used in law. Congressional leaders have stated ways that are consistent with their intention to legislate an AUMF that congressional intent, international law, targets ISIL. A prudent national security and human rights norms. A well- response would be to clearly identify the articulated and understood strategy is threat, debate it, and if Congress so key to achieving this, along with decides, pass a narrowly tailored force

authorization to address the threat. Human Rights First endorses the “Principles to AUMF, Just Security, Nov. 10, 2014, available at Guide Congressional Authorization of the http://justsecurity.org/17257/aumf-principles/. 30 Continued Use of Force Against ISIL,”29 See Robert Chesney, Jack Goldsmith, Matthew Waxman and Benjamin Wittes, A Draft AUMF to Get the Discussion Going, Lawfare, Nov. 10, 2014, available at http://www.lawfareblog.com/2014/11/a-draft-aumf-to-get- 29 Harold Koh, et. al., Avoiding Unnecessary Wars and the-discussion-going/; Goldsmith, Goodman, Vladeck Preserving Accountability: Principles for an ISIL-Specific Principles, supra note 23.

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legislative language that limits the communicate these objectives to Congress scope of time, geography, and groups with a request for the authorities that he targeted under the authorization. considers are necessary to achieve them. Pre-2001 force authorizations have included The absence of temporal limits in the 2001 such objectives, along with the requirement AUMF has proven to be a basis for uses of that the president determine when these force over many years, which most objectives have been fulfilled and report this members of Congress could hardly have determination to Congress.34 anticipated and about which Congress did not deliberate. Congress should include in Moreover, any new AUMF should specify any new AUMF a time limit, or sunset whether or not force is also authorized clause, which would ensure future timely against “associated forces” of the targeted congressional debate on the nature of the group. These associated forces should be threat and any further response. Such a defined to include only those that are requirement is not unprecedented: for actively fighting alongside the targeted example, the 1983 AUMF for Lebanon group, as parties to the armed conflict, in authorized the president to use force for up accordance with international law. Military to 18 months, unless extended by force should not be authorized against other Congress.31 Geographic limits have been groups that are not parties to the armed included in many prior congressional force conflict. The president has authority under authorizations.32 Such limits can help Article II of the Constitution to use force ensure that any current or future under certain circumstances and without administration cannot interpret an AUMF to congressional authorization to repel apply to other parties in other situations imminent attacks. Congress should not where the United States is not engaged in authorize force pre-emptively against armed conflict, as required by international unknown enemies. law—i.e. where hostilities are of sufficient  Ensure greater transparency and intensity between the United States and congressional oversight. One key another state or sufficiently organized lesson from the United States’ post-9/11 armed group.33 military engagements is the need for Any new congressional force authorization additional transparency on the part of should also be as specific as possible about the administration as well as oversight the objectives for which force is being by the Congress regarding the use of authorized. The president should

34 For example see Authorization To Employ the Armed 31 Multinational Force in Lebanon Resolution, P.L. 98-119, Forces of the United States for Protecting the Security of 97 Stat. 805, October 12, 1983 [S.J.Res. 159]. Formosa, the Pescadores, and Related Positions, P.L. 84-4, 32 The National Security Network has determined that 60 69 Stat. 7, January 29, 1955; Joint Resolution to Promote percent of historical force authorizations have contained Peace and Stability in the Middle East, Public Papers of the geographic limitations. See http://nsnetwork.org/wp- Presidents of the United States. Dwight D. Eisenhower. content/uploads/2014/08/ENDING-THE-ENDLESS- 1957, Washington. U.S. Government Printing Office, 1958, WAR_FINAL.pdf. pp. 6, 11-15; and Gulf of Tonkin Resolution, P.L. 88-408, 78 33 Tadic, supra note 22. Stat. 384, August 10, 1964.

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force. It is a basic principle of the interstate use of force, as laid out in democracy that the American public the U.N. Charter. Any new AUMF and Congress be informed of the scope, should send an important signal that the progress, and human cost of any United States abides by the rule of law conflict in which their armed forces are in using force by explicitly requiring engaged. Any AUMF should mandate compliance with international law. that the president provide to Congress  Address global public concerns about and to the American people, in legality and legitimacy of U.S. use of unclassified form, regular reports force. In recent years, global public hostility regarding the status of progress to U.S. targeted killings and the use of force towards the mission’s objectives, the in counterterrorism has continued to grow in groups or nations that fall within the both allied and affected countries. In scope of the AUMF, the numbers of addition to casting doubt on the viability and civilian and combatant casualties, and usefulness of international norms, this the legal basis for targeting particular growing resentment has made it more groups and individuals or using force in difficult for allies and partners to work with particular countries. the United States. Legislative debates  Comply with domestic and across Europe reflect, and U.S. diplomats international law. The Constitution report, reluctance to support U.S. military requires that Congress declare war, not actions because many believe that the the executive. If the AUMF is not United States uses force illegally and with narrowly tailored to a particular group or insufficient attention to civilian lives. To threat, it risks creating a carte blanche improve the United States’ cooperation with for use of force by the executive that will allies and strengthen counterterrorism as undermine the Constitution’s intention well as international rule of law, the that this power rest with Congress. A administration should adopt policies that broad law authorizing force against all explicitly clarify how the United States alleged terrorists or against groups that complies with international law, cares for espouse a particular ideology runs afoul the lives of civilians, and reviews and of separation of powers principles. As redresses mistakes when they occur. The noted above, international law demands administration should: that states exercise wartime authorities  Accept the applicability of only when engaged in a fight whose international human rights law to intensity meets international criteria for U.S. actions outside the United an armed conflict, and only for the States. The U.S. government continues duration of that armed conflict.35 In to maintain that many international addition, the United States must comply human rights treaties do not apply to with the international rules governing U.S. actions overseas.36 This position is

36 Charlie Savage, U.S., Rebuffing U.N., Maintains Stance 35 Tadic, supra note 22. That Rights Treaty Does Not Apply Abroad, NY Times,

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contrary to that of U.S. allies and administration should disclose the full coalition partners, as well as Presidential Policy Guidance on established jurisprudence from targeted killing operations and release international courts and human rights the remaining Office of Legal Counsel treaty bodies.37 If this approach were opinions on the legality of lethal adopted universally, it would provide all targeting. Disclosure of this information states with the impunity to violate the is also an essential first step toward prohibitions on arbitrary killing, unfair ensuring accountability and redress for trials, and imprisonment without judicial any human rights violations. review when these are carried out  Enable meaningful oversight, the outside their territory, a result that has right to review, and effective been labeled “untenable and investigation of and redress for perverse.”38 This position not only civilian harm. Global publics, allies and isolates the United States from its allies affected communities believe that the and the broader international United States may be consistently community, but also damages the undercounting, overlooking or legitimacy of U.S. claims to leadership concealing civilian casualties. Refusal on the rule of law. The Obama to acknowledge civilian harm is contrary Administration should accept the to the rule of law, denies victims the extraterritorial applicability of the justice they deserve, and compounds International Covenant on Civil and anger in impacted communities. These Political Rights (ICCPR)—including with effects heighten the need for effective respect to lethal targeting—and uphold mechanisms to track and respond to the United States’ reputation as a global civilian harm. The Obama leader in the protection of human rights Administration should publicly disclose and fundamental freedoms. the identity and number of individuals  Disclose the legal standards and killed or injured in targeted killing criteria that the U.S. government operations and the measures in place to uses to determine who may be prevent civilian casualties. The targeted with lethal force. Disclosure administration should also demonstrate of legal and policy standards, and how that it conducts prompt, independent they are applied, is necessary for an and impartial investigations whenever informed democracy. The there is credible information of a violation of international law caused by the United States’ use of lethal force. It March 13, 2014, available at: should also demonstrate publicly that it http://www.nytimes.com/2014/03/14/world/us-affirms- provides redress when such violations stance-that-rights-treaty-doesnt-apply-abroad.html. 37 Beth Van Schaack, The Extraterritoriality of Human Rights occur. Obligations, Just Security, March 4, 2014, available at: http://justsecurity.org/7618/extraterritoriality-human-rights- obligations/. 38 Id.

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 Close the detention center at overseas demonstrates that Guantanamo is Guantanamo Bay and publicly explain an unnecessary component of U.S. the procedures and rules for detention of counterterrorism strategy. The president terror suspects apprehended overseas. should publicly acknowledge this, finally Human Rights First has articulated a close the Guantanamo Bay detention comprehensive plan for the Obama center, end the use of military commissions, Administration to close the Guantanamo and articulate to the American people the Bay detention facility before the president procedures and rules for detention of terror leaves office. Moreover, the military suspects apprehended overseas. commissions at Guantanamo continue to  Support the Congress to pass laws that operate poorly, resulting in protracted trials reinforce the ban on torture and cruel, that are beset with delays and problematic inhuman, and degrading treatment. ethical issues.39 Of the eight individuals Existing statutes, both state and federal, convicted in military commissions, two have prohibit the use of torture and cruel, already had their convictions overturned inhuman, or degrading treatment. However, because their crimes were not all these statutes were in place after the internationally recognized war crimes when 9/11 attacks, and lawyers in the White committed. Conversely, since 9/11 the House, Department of Justice, Department United States has successfully convicted of Defense, and CIA were able to skirt them more than 67 terror suspects who were to advise that the use of so-called apprehended overseas,40 including Osama “enhanced interrogation techniques” was bin Laden’s son-in-law, Suleiman Abu legal. The president and Congress should Ghaith, who was prosecuted and sentenced work together to ensure that all acts of to life in prison in U.S. federal court in 2014, torture and cruel treatment are prohibited just over one year after being captured. under all circumstances, and that effective Other terror suspects captured overseas measures are available to hold perpetrators who are currently being held in detention accountable and provide remedies in facilities in the United States include Ahmed instances of violations. Abu Khattala, in connection with the 2012 attack on the U.S. mission in Benghazi, and Abu Anas al-Libi, for his involvement in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. The apprehension of these and other terrorism suspects from

39 Human Rights First, Fact Sheet: Key Facts on Military Commissions v. Federal Courts, available at: http://www.humanrightsfirst.org/sites/default/files/KeyFactsM ilitaryCommvFedCourts.pdf. 40 Human Rights First, Fact Sheet: Federal Courts Continue to Take Lead in Counterterrorism Prosecutions, available at: http://www.humanrightsfirst.org/wp-content/uploads/Federal- Courts-Continue-to-Take-Lead-in-CT-Prosecutions.pdf.

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are both universal and at the foundation of what it means to be American. Conclusion The challenge for American counterterrorism Military leaders, counterterrorism professionals, policy is moving human rights and the rule of law enforcement officials, and intelligence law from being ideas we casually reference to experts all stress that, in the long run, it is in the integrated principles by which the United States realm of ideas that violent extremism must be conducts itself and strategies to confront defeated. The ideas of human rights and the terrorism effectively. Through this process, the rule of law, and their applicability to every United States can offer other nations a model to person, are an essential part of what the United follow, and be a leader and partner in the fight States can offer in that struggle—because they against terrorism.

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