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US-UAE Partnership and Alleged Torture: Recommended Next Steps for the Administration and Congress

 

An important foreign military partner in our armed conflict against al-Qaida in Yemen—the United Arab Emirates—has faced a series of allegations that it is engaged in systematic torture of detainees in different parts of that country. The US government and individual US officials may be implicated in these abuses under domestic and international law, as Steve Vladeck explained in an analysis for Just Security. What’s more, our national security efforts in Yemen and beyond may suffer significant strategic setbacks if our institutions do not respond appropriately, as one of us (Luke) has explained in detail. So what are the next best steps for Congress and for the administration to take? What responses will help meet the United States’ primary legal obligations and policy objectives while, at the same time, not overcompensating or placing unfair burdens on commanders and, in many cases, lower-level military and intelligence operators in the field? In addition to specific steps, what questions should Congress be asking the administration? And how should our broader relationship with the Emirates be shaped in light of these and related concerns with UAE actions in the national security space?

We set out a few recommendations.

One caveat before turning to those suggestions: Despite all of the reporting on UAE abuses and related US actions, the factual record is still incomplete and inconclusive. The public and we ourselves have no knowledge of classified information or internal US government information regarding these events. Having served in the government we also know of situations in which US intelligence and internal information can vary widely from even the best journalists’ stories and NGO reports. We also have tremendous respect for the professionalism of our special operators and the military lawyers who work with them, which led us to early disbelief over these reports but also reinforces the need to get to ground truth. At this stage, the Pentagon’s official response to the reported claims admits to several facts. And the reports of UAE abuses are credible enough to trigger a series of institutional responses, including having those institutions seek answers to questions raised.

1. An assessment of assessments

If one takes Pentagon officials’ responses to the AP report at face value, it could indicate significant flaws in the US government’s procedures for assessing foreign partner practices. The AP report of torture in UAE facilities in Yemen is confirmed by a concurrent and independent investigation by Human Rights Watch, prior reports by a UN panel mandated by the Security Council, other international and domestic NGOs and a collection of other materials including expert interviews. Even the State Department’s own human rights reports and a USAID-commissioned study found evidence of detainee abuse, as explained by Alex Moorehead and Ryan. This is not surprising given the Emirates have a deeply troubling reported history of abuse of national security detainees and was even recently implicated in abuses against American citizens held in their custody.

Yet several DoD officials, speaking on background to the AP, said that “US senior military leaders were aware of allegations of torture at the prisons in Yemen, looked into them, but were satisfied that there had not been any abuse when US forces were present.” According to other statements attributed in the AP story to DoD officials, the Pentagon “denied any participation in or knowledge of human rights abuses.” It is unclear whether these other denials are implicitly subject to the same unusual and technical qualification: no awareness of abuses “when US forces were present.” If so, there are some very serious flaws in how the US government is making these assessments. Surely the assessment must include detainee abuse even when US personnel are not present.

Let’s assume that the Pentagon was aware of allegations of torture, conducted an assessment of those allegations, and concluded there had not been any abuses with and without US forces present. If the Pentagon’s assessment missed easily available and credible information of widespread and systematic torture in these facilities, then there are either serious flaws in DoD’s methods for conducting such assessments or they nonetheless assessed that the information on which journalists and outside groups relied was not credible but did not explain that in the sparse statements made to date. We are not suggesting that the overall instrument used to conduct such assessments in general is flawed. The problems in the UAE case may be due to particular factors involving these foreign partners, the detention operations, existing conditions in Yemen, or the personnel involved.  Or the problem may be that DoD has made inadequate disclosures — to the public or Congress — to address the discrepancies between its findings and those of outside groups. Either way, a credible US Government assessment of alleged Emirati abuses in Yemen would focus on the specific allegations made by outside groups and recent press reporting and address their veracity, the root causes of any allegations that prove true, as well as the extent to which US personnel may have been aware of any abuses that did take place. The review should also assess the quality of intelligence provided by Emirati detention operations, particularly given what we know about the general unreliability of information obtained by torture.

Which are the proper authorities for conducting such an “assessment of the assessment”? The allegations are so serious and the systems failure are potentially so significant that an interagency inquiry — drawing on the intelligence community and State Department — seems appropriate. That organizational structure could integrate a range of intelligence sources, different policy perspectives, and pipelines of information. The interagency structure is also appropriate here since the chief subject of concern involves not necessarily wrongful behavior by any US service member but allegations against a partner nation and non-state armed groups under its control. That requires the expertise of different agencies and relationships with foreign counterparts and with local NGOs that departments outside the Pentagon can deliver.

The final report should be provided to the House and Senate Armed Services/Intelligence and Foreign Relations Committees.

2. Moratorium on receiving intelligence information from UAE in Yemen and cessation of other actions related to detainee operations

In relying on intelligence that may have been gathered through the use of torture, the United States runs a high risk of complicity in torture under human rights law and the laws of war. These obligations apply even if the United States did not know but should have known of the use of torture in UAE-controlled detention facilities. Let’s assume that US forces did not know beforehand that the detainees were subject to torture. Today is different. Now, with credible information of torture in UAE detention facilities, US departments and agencies should cease collaboration on detention operations and also establish a broader moratorium on receiving intelligence information that is likely to have been obtained from UAE detention and interrogation operations in Yemen until fully satisfied that such human rights abuses are not taking place.  As part of this moratorium, the United States should withdraw any personnel working with Emirati detention and interrogation authorities, cease providing questions to the UAE for use with Yemeni detainees, and not provide lists of people to detain.  The United States should also not allow any detainees captured in unilateral or joint operations to be turned over to Emirati control, given the level of uncertainty as to whether those detainees will be treated humanely.

This should not be a hard ask because refraining from complicity in torture serves US legal obligations and national security interests in our international relations. Also, ample empirical evidence shows that information produced by torture is often unreliable. Even if one doubts the empirical evidence on effectiveness of torture, no serious expert on interrogation would support torture carried out on a widespread and system basis by ragtag militia forces operating under UAE control. More broadly, as the Yemeni civil war has driven the country into utter catastrophe, the United States has carefully tried to avoid becoming implicated in the range of misdeeds perpetrated by the Saudis and Emiratis.  Becoming complicit in Emirati torture sucks the United States squarely into that conflict, kills our credibility in trying to bring about a peaceful resolution, and emboldens those who believe the United States is backing some of the worst of Sunni-led sectarian actions in the Middle East. In short, there are strong policy and legal reasons to avoid the risk of complicity in UAE torture, and the countervailing interests are minimal by comparison.

3. Reporting requirements — in general for collaboration with partner forces

The current situation, tragic as it may be, presents an opportunity to reassess how we think of partnering with other nations (and irregular forces) in detainee operations. Partnerships remain the centerpiece of almost everything we do in counterterrorism — from gaining placement and access to multiplying the reach of our forces to ultimately increasing overall legitimacy. Our concept of counterterrorism partnerships has also evolved in recent years such that more of our people are now engaged in advising and assisting friendly forces at the tactical level.  In the vast majority of cases, the involvement of US advisors at a tactical level has improved the professionalism of partner forces, but at times, it may also put our people closer to those who are most likely to engage in abuse.  Given this reality, the Department of Defense should develop specific protocols — and requirements — for military personnel to cite suspected abuse and raise concerns up the chain of command for further evaluation.  A well-designed mechanism would require personnel to report suspected abuses but would soften the disincentives to report by allowing collaboration to continue while an investigation takes place or while more senior US personnel work with partner nation counterparts to remove the offending personnel or otherwise end the abuse.

We recommend Congress pass legislation requiring congressional notification whenever the administration proceeds with collaboration with a foreign partner despite an assessment showing that the facts involving torture, cruel, inhumane, or degrading treatment are uncertain. The House and Senate Armed Services/Intelligence and Foreign Relations Committees should each be notified.

We recommend Congress pass legislation requiring the Department of Defense and Department of State to submit a joint report assessing the likelihood that a foreign partner with whom we are currently involved directly or indirectly in interrogations engaged in torture or cruel, inhumane, or degrading treatment of those detainees. The report should also include the administration’s detailed views of the United States’ legal obligations under international and domestic law in general.

4. Closing substantive gaps in existing legislation

As Steve Vladeck identified, there is a gap in the McCain-Feinstein Anti-Torture Amendment when it comes to fact patterns like the one described in the AP report on the US relationship to UAE detainees. Steve wrote that the law “applies, as relevant here, only to detainees ‘in the custody or under the effective control of an officer, employee, or other agent of the United States government’ at the time of the interrogation … it’s not clear that torture by a US proxy would violate US domestic law.” We recommend Congress close this gap.

First, Congress could amend McCain-Feinstein to cover proxy detentions more effectively. We recommend Congress pass legislation to prohibit US officials’ involvement in torture carried out by agents of other governments or non-State armed groups. Legislation in these matters can be a bit tricky, but we propose specific text to ensure all scenarios are covered:

prohibit US officials from engaging or collaborating in the questioning of, or providing information to a foreign government or organized group that is intended to be used or that the US official has reason to believe will be used in the questioning of, a detainee in the custody or effective control of an official, employee or other agent of the foreign government or organized group if the detainee is likely to be subject to torture or cruel, inhumane, or degrading treatment by the foreign government or any of its officials, employees or agents or by the organized group or any of its members.

The legislation could also include some flexibility such as for situations in which a detainee may have been abused in the distant past or by a separate entity and has long been transferred to other elements of a host nation who we are confident are treating the detainee humanely. In cases in which the administration invokes such an exception and in cases in general in which the administration proceeds with collaboration with the foreign partner despite an assessment showing that the facts are uncertain, the House and Senate Armed Services/Intelligence and Foreign Relations Committees should be notified and provided with a thorough briefing by relevant administration officials on the specific circumstances leading to the government’s decision to continue collaboration.

Second, as a matter of constitutional law, information provided by a detainee under torture is likely inadmissible in a US court both  in prosecutions against the detainee or in prosecutions against others. But what about the admissibility of such information in intelligence or preventative law enforcement? Of course not all evidence that is inadmissible in court should be disallowed in intelligence work. Far from it. Congress may need to decide whether to explicitly foreclose US officials’ use of information when there is knowledge or reason to know that the information has been derived from torture. There are significant hazards to drafting that prohibition, and there are hazards to drafting any exceptions to such legislation without those exceptions validating the use of torture.

5. Congressional oversight — specific to UAE allegations

Of course, all our recommendations are based on the information available to two outside observers.  Congress has the ability to investigate these alleged abuses, compel the administration to provide clear answers to tough questions, and ultimately shape the policies that would prevent US complicity in Emirati or other partner nation abuses and decrease the likelihood of such abuses happening in the first place.  The following are some of the questions Congress should ask to understand fully the situation in Yemen and begin the dialogue on how to prevent such situations going forward. (These questions may also be useful for senior Defense Department leadership to ask internally, and for journalists in follow-up reporting.)

  • What policy considerations did the Administration review before deciding to begin operational collaboration with the Emiratis against terrorist groups in Yemen?  What were the specific benefits that the Emiratis brought to the partnership and what were the risks?  Do you assess that the collaboration with the Emiratis, particularly on detainee operations, has led to tangible benefits in our counterterrorism fight?  What are they?
    • What type of pre-vetting of Emirati partner units took place prior to beginning operational collaboration, including on detention and interrogation operations?  Were the results of the vetting conclusive or were there any grey areas in assessing the extent to which partner elements had previously engaged in any human rights abuses?
    • What is the specific arrangement and relationship between Emirati services and local forces (broadly defined as legacy Yemeni security services loyal to President Hadi, local government security services, and allied irregular forces) in detaining and interrogating detainees?  Was the US Government fully aware of these arrangements before beginning its collaboration?  If not, why not? If so, how did the US Government vet or otherwise assess the Yemeni partners involved and the likelihood that they would treat detainees humanely?
    • If US personnel working with partner nation elements have reason to believe that those elements are engaging in torture or inhumane treatment of detainees, what specific recourse or obligation do they have to elevate those concerns?
    • Please describe the typical process and chain of custody from the time a detainee is captured to the time that US personnel are providing debriefing questions to his captor.  How does the US Government decide which suspected terrorists may have relevant intelligence information?
    • There are reports that some detainees were debriefed aboard vessels off the coast of Yemen.  Are those vessels Yemeni or Emirati Navy or Coast Guard ships?  Another type of vessel?  Were US forces involved in debriefings on those vessels?  Did those interrogations take place in Yemeni territorial waters or international waters and does that have any impact on the legal or policy analysis of the debriefings?
    • Please provide the sources of information that US officials consulted in finding there were reports of detainee abuse? Were any of these reports or sources of information initially deemed credible or noncredible? Please describe the assessment made of these reports — who carried out the assessment, over what period of time, and what sources were consulted for the assessment? What exactly did the assessment conclude about the likelihood and prevalence of detainee abuse in UAE and Yemeni-controlled facilities in Yemen? Please provide an explanation of discrepancies between US Government and non-governmental assessments (such as reports by the AP, Human Rights Watch and other credible open-source information) with respect to the likelihood and prevalence of detainee abuse in UAE-controlled facilities in Yemen, and with respect to the likelihood that US forces would be aware of such abuse.

6. Engaging Emirati Authorities – The Bigger Picture

As the Yemeni civil war deepened throughout 2015 and 2016, al-Qaeda in the Arabian Peninsula and emerging ISIS elements took advantage of the chaos to establish a safehaven and enhance their recruiting efforts.  With limited options for US action beyond drone strikes following the closure of our Embassy in Sana’a and the suspension of our partnership with Yemeni forces, the idea of a US-Emirati counterterrorism partnership made good sense.  The Emiratis have some of the most capable special operations forces in the region and our history of collaboration with them likely eased the move to combined operations.  But in the context of these allegations, other concerns over the UAE dividing Yemen through its actions in the south, and recent reports of  Emirati efforts to sow discord between the United States and Qatar, the administration should conduct a broader evaluation of the bilateral relationship and should commence a dialogue with the Emirates in which a central topic is Emirati conduct in Yemen, Libya, Syria, and other irregular battlefields.  The US-UAE relationship has been and should remain a critical part of our strategic framework for the region, and our close relationship with their special operations forces provides us with critical capabilities for a range of regional security challenges, but in light of the substantial support the United States provides, asking the UAE to take clear steps to ensure it is complying with the laws of war in its conduct or support of irregular warfare is hardly a major request. If the Emiratis take clear steps to improve in this domain, then some of the more complex policy approaches that we have outlined would become unnecessary.

 

 

Image: Secretary of Defense Jim Mattis meets with Abu Dhabi’s Crown Prince and Deputy Supreme Commander of the UAE Armed Forces Mohammed bin Zayed Al Nahyan at the Eisenhower Executive Office Building in Washington, D.C., May 15, 2017 – DoD photo by U.S. Air Force Tech. Sgt. Brigitte N. Brantley

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About the Authors

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, Former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter (@rgoodlaw).

Fellow - International Security Program at New America, Executive Director of National Journal's Network Science Initiative, Former Senior Director for Counterterrorism at the National Security Council, Former Deputy Director for Counterterrorism Operations in the Office of the Secretary of Defense Follow him on Twitter (@LukeHartig).