[Editor’s note: for an analysis of the legal issues raised by this news, see Steve Vladeck’s post, “The Potential Legal Implications for the U.S. in the AP’s Disturbing UAE Torture Scoop.”]
Early Thursday morning, Maggie Michael and Maad al-Zikry of the Associated Press published a disturbing story documenting widespread Emirati-led torture and mistreatment of suspected terrorists in Yemen. Michael and al-Zikry also make the case that U.S. forces operating in Yemen are likely aware of at least some of the abuses and in fact have provided questions for the prisoners to their Emirati partners to ask during interrogations. Steve Vladeck has provided preliminary legal analysis of this report that raises some serious questions as to whether the United States may have violated international human rights law and the law of war in its partnership with the Emiratis. Regardless of the legal analysis, there is good reason to be outraged on policy grounds as well. In the coming days, hard questions will need to be asked as to how much the U.S. government knew about these alleged abuses, who all was involved in advising the Trump Administration on our partnership with the Emiratis, and what this means for larger strategic questions in Yemen and beyond.
Among other issues, I identify here the types of questions that members of Congress and reporters must now pose to the Trump administration.
In recent years, the United States has gradually shifted its counterterrorism strategy toward ever-greater reliance on partnerships. And those partnerships have become more intensive in nature. In fighting a counterinsurgency or counterterrorism campaign, it’s not sufficient simply to provide weapons to a foreign partner and train them on their use. We often need to go much further and provide the partner embedded combat advisors and a range of operational enablers (intelligence support, airlift, logistics) that will allow them to be truly effective in combating an irregular threat. Developing such an intimate relationship with partner forces also allows us to gain critical information and intelligence on the enemy and the operating environment, including through detainees that our partners may have captured. It also creates certain liabilities, particularly when our partners may not fully share our values or commitment to the rule of law. This is a policy space with many difficult tradeoffs.
Few regional partners have been the recipient of such intensive counterterrorism training and support as the Emiratis, who have developed a well-earned reputation in the region (perhaps along with the Jordanians) for fielding the most competent, well-trained, and disciplined of special operations forces fighting our shared terrorist threats. For the past fifteen years, we have conducted regular training exercises with the Emiratis, provided them with the weapons and gear they need to carry out their commando missions, and deepened our operational collaboration on a range of threats. But the combined operations we are apparently conducting with the Emiratis in Yemen, most notably represented by the failed February 2017 raid against an al-Qaeda compounds in the restive al-Bayda governorate, represent a new phase in our relationship.
That’s not to say that this was unforeseeable. Indeed, over the past 16 years, we have regularly dealt with partner nations who have some record of mistreating detainees. And as Ryan Goodman pointed out in the AP story, the Emiratis themselves were complicit in the CIA’s rendition, detention, and interrogation program operated in the early years after 9/11 and more recent reports suggest that the Emiratis have engaged in abuse of U.S. citizens in their custody. But it does raise a significant question: to what extent was the United States government – beyond the U.S. military – aware of these potential abuses and what steps might they have taken to mitigate them?
The Proper Procedures
I have previously written and commented on the slapdash process the Trump Administration utilized for reviewing and approving the U.S. raid in February that left up to 25 civilians and one U.S. Navy SEAL dead. Reporting at the time suggested that the raid may have been part of a larger package that had been briefed to Pres. Trump calling for intensive U.S. collaboration with Emirati forces on ground operations against al-Qaeda. The Trump team apparently quickly came to share the Obama Administration’s concerns about troubling signs that al-Qaeda and the Islamic State of Iraq and Syria (ISIS) were exploiting the civil war in Yemen to claim safe haven and plan additional terrorist attacks. The chaos called for greater action against terrorist elements but also suggested the need for U.S. forces to become more intensively involved in a way that would not have been necessary or possible when the Hadi government was still in control of Yemen. And in this context, the Trump team appears to have been very receptive to forward-leaning operational proposals from the Department of Defense. The Associated Press story thus also raises anew questions of how much U.S. government agencies beyond the Department of Defense were involved in scrutinizing and advising on the plan to develop a deeper relationship with the Emiratis in Yemen.
During the Obama Administration, we regularly considered proposals for more intensive counterterrorism partnerships in places like Somalia, Yemen, Kenya, and Libya. In reviewing these proposals, we regularly evaluated the extent to which we thought our partners were currently engaging in or could become engaged in abuses that would contradict our values or laws. Some of this was legally required, particularly in complying with so-called “Leahy vetting,” a law that bars US assistance to foreign government forces that have engaged in human rights abuses. But the policy discussion went much further and asked hard questions about whether turning a blind eye to abuses made us complicit or otherwise darkened our moral standing in trying to combat forces that would love nothing more than to paint the United States as an evil crusader. The toughest questions often came from the State Department or the United States Representative to the United Nations, both of which took effort to note human rights concerns and to consider the implications for international norms of the United States getting in bed with immoral governments or groups.
In this specific situation, the types of questions that should have been asked would have focused on whether there was any intelligence indicating that the Emirati elements we were working with were involved in abuses? How closely would the United States work with the Emiratis in providing them questions for detainees to answer? Would U.S. personnel have face-to-face or only indirect access to detainees? What kind of assurances had the Emiratis provided the U.S. government (regardless of administration) that it would treat detainees humanely? What would be the procedure for U.S. forces to follow if reports of abuse did emerge? Did the United States have any intention to bring detainees into U.S. custody and if so, would we feel confident that those detainees had not been the victims of prior abuse, which could complicate our ability to prosecute them? What kinds of information do we think that we could get from Emirati-led detention operations that we couldn’t obtain through other means? And yes, the answer to that first question—whether the Emirati elements we were working with were involved in abuses—could put a stop to the whole endeavor.
In the coming days, members of Congress and reporters should be pressing the Trump Administration on whether these questions were asked and whether the U.S. officials most adept to ask them were involved in advising the President or the Secretary of Defense on our cooperation with the Emiratis.
Impact on US national security writ large
Beyond these immediate issues, this report raises some serious questions about broader U.S. strategy, both in Yemen and as part of our broader campaign against al-Qaeda and ISIS. Whatever moral high ground the United States had in Yemen when Houthi rebels seized Sana’a and deposed the legitimate Hadi government has been greatly diminished over the past two years by our support for Saudi-led military action that has made the situation worse, killed thousands of civilians, and contributed to famine and public health crises that will ravage the Yemeni people for years to come. Emirati-led operations in the south have led to concerns that they are driving the country toward division along tribal and historic lines. The United States has rebuffed Riyadh for its conduct of the war and taken steps to try to resolve the conflict, but our remaining shreds of credibility in the region depend on not getting thoroughly entwined or being seen as turning a blind eye to abuses brought on the Yemeni people by foreign powers. In the coming days, the United States government will need to reckon with this reality and consider how its response to this report could impact future efforts to bring peace and stability to Yemen.
More broadly, we should hope that this report is an aberration and not a sign of a deeper U.S. willingness to turn a blind eye to partner abuses committed in the name of disrupting terrorist networks or obtaining intelligence on terrorist organizations. Since the worst excesses of the post-9/11 period were ended, the United States has developed a far more ethical (and bipartisan) approach to counterterrorism, one that is grounded in the rule of law and that has served us well from a moral perspective but also deprived terrorists of stories that would only feed their propaganda and recruitment efforts. Abuses like those reported are part of the risk that comes with counterterrorism partnerships. How the Administration and the Congress responds to them is the real test of whether our counterterrorism strategy continues to be guided by our values.
Photo: Secretary Jim Mattis with Crown Prince Mohammed Bin Zayed Al Nahyan of the United Arab Emirates, May 15, 2017 – Dept of Defense