In yesterday’s post on Just Security, Steve and Jennifer raise important issues as to what authority the AUMF may or may not grant the United States to respond to al-Shabaab in the wake of the siege on Westgate Shopping Mall in Kenya. I’d like to focus, however, on a separate point that Steve and Jennifer alluded to, regarding the law enforcement and intelligence assistance the United States may provide to the Kenya authorities.

The New York Times reported that an “American official said that the F.B.I. had offered assistance to the Kenyan authorities and that F.B.I. agents were at the Kenyan command post at the scene.” Such cooperation is perfectly normal. In fact, despite the somewhat strained relationship between the United States and Kenya,  it would have been odd if such assistance was not offered. Plus, this is not simply a gesture. Kenya authorities can benefit significantly from the experience of the FBI in what will be a complex investigation into a sophisticated attack with transnational dynamics.

It’s important, however, to put a big caveat on that offer of assistance: the FBI must not legitimize, contribute to, or rely on a Kenyan investigation that violates human rights law. Doing so would be morally unacceptable. Moreover, it could derail prosecutions (either in Kenya or in the United States) and sully the reputation of the United States abroad. 

This is not a hypothetical concern. The FBI has previously demonstrated a willingness to partner with foreign security forces in the region that have dismal human rights records. A case in point: after the July 2010 bombing in Kampala, Uganda, when al-Shabaab claimed responsibility for suicide bombings that killed over 70 people watching a World Cup soccer match, the FBI worked hand in glove with Uganda’s Rapid Response Unit (RRU) to investigate and interrogate the bombing suspects. The RRU was notoriously brutal and, even around the time the FBI was working with them, subjected detainees to torture and other abuses – to such an extent that the RRU was eventually disbanded for its brutality. Several of the World Cup bombing suspects also alleged human rights abuses (including against U.S. officials) and, as a result, their trial has been significantly delayed by a Constitutional petition based on claims that a criminal trial would be manifestly unfair based on the way the suspects were apprehended, detained, and interrogated.

The FBI risks placing itself in a similar situation today if Kenya accepts assistance. One of Kenya’s leading counterterrorism agencies is the Anti-Terrorism Police Unit (ATPU), which has been in national headlines for accusations of torture, killings, and disappearances.  The ATPU’s abuses fit into a pattern: terrorism suspects are detained and driven around for hours before being brought to any official police station. During this time, suspects are denied access to lawyers and their families, and subjected to interrogations that involve cruel, inhuman or degrading treatment and even torture. In addition, there are outstanding questions about the disappearance and murder of members of Kenya’s Muslim community, where some suspect the involvement of the ATPU.

The United States government is well aware of these abuses.  The ATPU has a history of abuse dating back at least until 2007 when the then-head of the ATPU was involved in what a Kenyan court recently found to be acts of torture and illegal rendition in violation of Kenya’s domestic and international obligations. The ATPU did the same to suspects of the World Cup bombing in 2010, and two judges (see here and here) similarly condemned those renditions as illegal.

Given the ATPU’s human rights record, what are the FBI’s options for cooperation and assistance? In response to the Open Society Justice Initiative report on the human rights abuses relating to the World Cup bombing investigation, the FBI explained that it has a protocol in place,

 “for joint interrogations known as ‘remove and report,’ which prohibits use of any technique that results in the abuse or mistreatment, to include verbal threats and inappropriate promises, of a prisoner or detainee. ‘Remove and Report’ requires an agent to remove himself or herself from a situation in which he or she knows or suspects abuse has occurred as soon as possible, and report the known or suspected abuse up his or her management chain.    Training on these procedures is provided regularly to FBI employees who are deploying overseas.”

Whether the FBI’s protocol is capable of ensuring that the FBI doesn’t get involved directly or indirectly in the human rights abuses of foreign security agencies will surely depend on its finer details and how well the protocol is implemented. This protocol, although a step in the right direction, falls far short of more stringent U.S. rules on providing assistance, such as the Leahy Law.  Here’s how the UK deals with this type of issue, which sets out detailed rules on what action is required by UK agents in response to various types of abuses by foreign security officials.  The UK policy, though appearing stronger than the FBI’s, is nonetheless not strong enough for my taste. Ministers and field staff have broad discretionary powers in deciding whether to continue the operation. Additionally, the policy’s gives too much weight to the notion that human rights assurances from foreign partners can mitigate the threat of abuse.

If anyone has more information on how the FBI’s policy is implemented it would be great to learn more. Is this policy met by an FBI agent simply leaving the room while a foreign security agent slaps around a detainee and then the FBI can re-enter the room once the beating ends? What are the consequences once an FBI agent files a report of abuse up his or her management chain? Does the investigation continue, or does the investigation team have to pack their bags and get the next plane home? Also, is the FBI required to inform the foreign agency it’s partnering with of this protocol?

Finally, in this discussion of the various ways the US-Kenya counterterrorism relationship should take shape in the aftermath of Saturday’s horrible violence, it’s worth mentioning that Kenyan authorities will likely rely on the new Prevention of Terrorism Act (signed into law in October 2012) to investigate and prosecute the Westgate Shopping Mall siege suspects. The law greatly expands policing powers to counter terrorism, powers that members of Kenya’s Muslim and Somali communities are especially worried Kenyan authorities will apply indiscriminately. Until the law was enacted, the United States encouraged Kenya to put in place such legislation.  Now that the law has passed, the U.S. will see the impact of its encouragement and must be willing to engage through its Embassy and other diplomatic channels if the law is abused or otherwise used excessively.