The use of psychiatry to pressure dissidents, religious activists, and opposition leaders was not uncommon in the Soviet Union. Ironically, while churchgoers were routinely hospitalized for ‘insanity,” it was Efimov’s criticism of the Orthodox Church that triggered his prosecution. He was charged under article 282, part 1, for criticizing church leaders and believers in an online article published in December 2011.

Regional human rights group AGORA, whose lawyers represent Efimov, promised to conduct an independent psychiatric evaluation for their client, reminding the government that “the European Court has a clear and unequivocal position in relation to the grounds on which people can be placed in psychiatric hospitals,” which are hardly applicable in this case. AGORA is preparing to take this case to the Supreme Court of Karelia.

Meanwhile, state pressure on Efimov keeps mounting. This weekend, our partners from the SOVA Center for Information and Analysis in Moscow reported an arson attack on the Saint Catherine Cathedral in Petrozavodsk. Two days after this heinous incident, Efimov was summoned for another round of questioning, and the investigator alleged that the attack was carried out by his supporters—another effort by the government to interfere with his work. Efimov had condemned the attack on the cathedral and sent condolences to congregants and denies any involvement, claiming that his being at the center of this arson investigation is baseless and is yet another example of interference in his daily work as a human rights defender in Karelia.

Summary of the Smith-Amash Amendment

• What it would do: The Smith-Amash amendment would resolve two key questions that were left open during the last year’s NDAA debate on the detention of individuals suspected of involvement with terrorism. First, the Smith-Amash Amendment would ban indefinite military detention and military commission trials in the United States, making clear that individuals apprehended on U.S. soil who are suspected of terror-related activities can only be tried in a civilian court with all the corresponding constitutional protections. Second, the amendment would repeal a provision in the FY 2012 NDAA that requires that a category of foreign terrorism suspects be held in military custody, absent a presidential waiver.

A Closer Look

• What it says: “In the case of a covered person who is detained in the United States, or a territory or possession of the United States, pursuant to the Authorization for Use of Military Force, [the National Defense Authorization Act for Fiscal 2012], or the National Defense Authorization Act for Fiscal Year 2013, disposition under the law of war shall occur immediately upon the person coming into custody of the Federal Government and shall only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court. Such trial and proceedings shall have all the due process as provided for under the Constitution of the United States. No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention under the Authorization for Use of Military Force, [the National Defense Authorization Act for Fiscal 2012], or the National Defense Authorization Act for Fiscal Year 2013.”

• What it would do: During the debate of the detainee provisions in the FY 2012 NDAA, there was considerable concern over the prospect that individuals in the United States thought to be involved with terrorism could be held indefinitely in military custody without ever facing charges or trial. The above subsections of the Smith-Amash amendment, if passed into law, would prohibit transfer of these individuals into military custody and require that any trials be in civilian court with all the corresponding constitutional protections; under the above subsections, these individuals may not be held indefinitely without charge or trial, or tried by military commissions. Because the ban on indefinite detention and military commission trials only applies within the United States, the Smith-Amash amendment would not alter the status quo for detainees held at Guantanamo or anywhere else outside of the United States.

• What it says: “This section shall not be construed to authorize the detention of a person within the United States, or a territory or possession of the United States, under the Authorization for Use of Military Force, [the National Defense Authorization Act for Fiscal 2012], or the National Defense Authorization Act for Fiscal Year 2013.”

• What it would do: Though some proponents of the 2012 NDAA detainee provisions sought to codify authority to indefinitely detain individuals picked up within the United States, Congress ultimately agreed on a provision that made clear that the NDAA shall not be construed to “affect existing law or authorities” with respect to the detention of individuals captured or arrested in the United States. However, “existing law” is unsettled on the question, and the Bush administration on two occasions held individuals – José Padilla (a U.S. citizen) and Ali al-Marri (a legal resident) – in military custody for years without charge or trial, with questionable-at-best legal justification. The above subsection makes clear that although the Smith-Amash amendment prohibits indefinite detention if a future President seeks to claim this extraordinary authority to use the military to detain individuals in the United States, the amendment is not authorizing any such detention.

• What it says: “Repeal of Requirement for Military Custody—Section 1022 of the National Defense Authorization Act for Fiscal Year 2012 is hereby repealed.”

• What it would do: In addition to codifying the authority of the military to indefinitely detain terrorism suspects without charge or trial, the FY 2012 NDAA, in section 1022, requires that a category of foreign terrorism suspects be initially held in military custody, absent a presidential waiver. Though the President issued a Presidential Policy Directive limiting the instances in which mandatory military custody applies, future Presidents are not bound by this directive. The above subsection of the Smith-Amash amendment would repeal the FY 2012 NDAA mandatory military custody provision altogether.

Under the detention provisions in the defense authorization bill, who can be detained indefinitely by the military without charge or trial?

The FY 2012 NDAA permits the military to indefinitely detain without charge or trial individuals determined to be members or substantial supporters of al Qaeda, the Taliban, or associated forces. The law does not define “associated forces” or what it means to provide substantial support.

Are American citizens or other individuals apprehended within the United States subject to indefinite military detention under the FY 2012 NDAA?

American citizens can be detained under the FY2012 NDAA because the bill codifies into federal statute existing authorities, which allow the military to detain U.S. citizens. The law is less straightforward for individuals, including citizens, apprehended in the United States. Although an amendment was added making clear that the FY 2012 NDAA is not intended to “affect existing law or authorities” relating to the detention of U.S. citizens or others picked up on U.S. soil, existing law is not clear on this point. For example, the Bush administration held two individuals apprehended in the United States – José Padilla (a U.S. citizen) and Ali al-Marri (a legal resident) – in military custody for years under the legal authorities that are now codified in the FY 2012 NDAA. If this or a future administration were to use the military to detain an individual apprehended on U.S. soil, it would pose serious legal issues, which would be decided by a court. President Obama has stated that he will not place an American citizen in indefinite military detention.

Aren’t citizens afforded special rights under the Constitution that protect against the kind of indefinite military detention contemplated in the FY 2012 NDAA?

When it comes to fundamental liberty and due process guarantees, the Constitution affords protections to all individuals within the United States, irrespective of citizenship. These protections include the right to due process and equal protection under the law.

Does the FY 2012 NDAA suspend habeas corpus? Doesn’t habeas corpus ensure against indefinite detention without charge or trial?

In codifying the authority of the military to hold terror suspects without charge or trial, the FY 2012 NDAA did not suspend habeas corpus or purport to overturn any other constitutional rights. However, habeas corpus, though an incredibly important right, has not prevented the government from holding individuals indefinitely without charge or trial. Habeas corpus, in this context, means that for individuals in the United States, or at Guantanamo, the government only needs to prove to a federal judge that it’s more likely than not that the person in question is a “member” or “substantial supporter” of al Qaeda, the Taliban, or an “associated force”. It’s not clear what these vague terms mean, and in a habeas proceeding the government often presents classified information, the content of which is presumed by the judge to be accurate and reliable. Importantly, habeas corpus in this context does not guarantee a jury trial, at which the individual must be found guilty of crimes beyond a reasonable doubt, or ensure that the government only arrest people when it has probable cause.

Does the FY 2012 NDAA force the administration to place terror suspects into military custody?

In addition to codifying the military’s detention authority, the FY 2012 NDAA requires the military to take initial custody of a category of foreign terrorism suspects, absent a presidential waiver. Specifically, the law mandates military custody for foreign terror suspects determined to be 1) part of al Qaeda or an associated force, and 2) involved in a terror plot against the U.S. or its allies. The President issued a policy directive substantially limiting the instances in which mandatory military custody applies, though it leaves open the possibility that it could apply to foreign terrorism suspects arrested in the United States on terrorism charges.

Won’t holding terrorism suspects in military rather than civilian custody make us safer by denying suspects a right to a lawyer and other essential due process requirements?

No. The criminal justice system has produced large amounts of invaluable counterterrorism intelligence information precisely because it provides incentives for suspects to cooperate. Many criminal suspects apprehended cooperate with authorities, whether or not they are read Miranda rights. Intelligence gathered through the criminal justice process includes telephone numbers and email addresses used by al Qaeda and other terrorist groups, al Qaeda communications methods and security protocols, al Qaeda recruiting and financing methods, the location of al Qaeda training camps and safe houses, information on al Qaeda weapons programs, the identities of operatives involved in past attacks, and information about future plots to attack U.S. interests. Holding individuals in indefinite military detention with little to no prospect for release does not provide incentives for cooperation.

Does the FY 2012 NDAA ban civilian terrorism trials? Does it require that suspected terrorists be tried by military commission?

In general, terrorism suspects can be tried either in civilian courts or military commissions under the FY 2012 NDAA. However, the FY 2012 NDAA does block the transfer of Guantanamo detainees to the United States for prosecution in civilian courts. Even detainees subject to initial mandatory military custody can be tried in civilian courts. While the FY 2012 NDAA preserves the option of civilian terrorism trials in many cases, it also politicizes prosecutorial decisions. For example, a provision in the FY 2012 NDAA requires the Attorney General to consult with the Secretary of Defense and Director of National Intelligence before moving forward with certain terrorism-related prosecutions.

Does the FY 2012 NDAA prevent Guantanamo from being closed?

Yes, at least for the foreseeable future. The FY 2012 NDAA contains within it transfer restrictions that limit the Obama administration’s flexibility to transfer detainees out of Guantanamo. These restrictions are in effect until the end of the 2012 fiscal year (September 30, 2012). Despite these restrictions, the Obama administration can, and should, work to fulfill its pledge to close Guantanamo by transferring as many detainees as possible to foreign countries that will accept them.

Since 2006, the Second Circuit has adjudicated more than 16,000 immigration cases.  In all too many cases, I could not but notice a substantial impediment to the fair and effective administration of justice: the too-often deficient counsel of represented non-citizens.  For immigrants, the stakes could not be greater – whether they can stay in the United States, whether they will be separated from their loved ones, often their children.

Over the last few years, Judge Katzmann has galvanized and led efforts to address the legal representation needs of indigent asylum seekers and immigrants in New York, working with a group of attorneys, bar associations, non-profit organizations, judges, New York City and State officials, law schools, and other concerned New Yorkers.  This group is known as the Katzmann Study Group.  In his speech, Judge Katzmann outlined a number of steps the group has initiated – including the creation of a Fellowship at Human Rights First, with the support of the Leon Levy Foundation, to help promote pro bono representation in asylum cases in New York.

Judge Katzmann also highlighted a number of the Katzmann Study Group’s disturbing findings – including:

• A striking percentage of detained (67%) and non-detained (27%) immigrants who appear before the New York Immigration Courts do not have legal counsel.
• The two most important variables affecting the ability to secure a successful outcome in an immigration court case are having legal representation and being free from detention.
• The greatest impediments to increasing the capacity of existing legal providers are a lack of funding and a lack of resources to build a qualified core of experienced removal-defense attorneys.

In closing his speech, Judge Katzmann eloquently made the case for why American lawyers and all Americans should care about the legal representation needs of immigrants and asylum seekers:

As I reflect on my subject tonight, immigrant representation, my own family’s past no doubt plays a part.  My father is a refugee from Nazi persecution, my mother the child of Russian immigrants.  I can still hear the accents and voices of my own relatives, who escaped persecution, who wanted to become part of this great country, and who, through their toil and belief in the American dream, made this great nation even greater.   When we work to secure adequate representation for immigrants, not only are we faithful to our own professional responsibilities, not only do we further the fair and effective administration of justice, but we also honor this nation’s immigrant experience.

There are so many ways for the legal community – and for all Americans– to respond to Judge Katzmann’s call to action.  Lawyers can volunteer their time.  Individuals and other donors can support legal providers so that they can hire competent staff to provide counsel to indigent immigrants.  Bar associations and other concerned Americans can replicate the work of the Katzmann Study Group across the country.  And all Americans can tell their representatives in Congress that they are concerned about the lack of legal representation for indigent immigrants  and want the government to take steps to address what Judge Katzmann accurately calls a “dire problem of grave human consequences.”

Human Rights First congratulates Judge Katzmann on his receipt of the prestigious Learned Hand Award, and expresses its deep appreciation for his commitment and leadership in highlighting the legal representation needs of immigrants and asylum seekers.

To read Judge Katzmann’s speech, click here.

Click to learn about Human Rights First and our pro bono representation program for asylum seekers.

Bahraini human rights advocate Husain Abdulla looks at the Bahraini Children's Art Exhibition. (Photo By Chris Maddaloni/CQ Roll Call)

In early 2011, the government of Bahrain met calls for democracy with a violent crackdown. Dozens of people were killed, and thousands arrested. Today, the crackdown on pro-democracy protesters continues and King Hamad and his unelected government remain in place.

Children have witnessed much of this violence first hand and we asked some of them to draw something from their experience. These are now being exhibited on Capitol Hill in Washington, DC. Many of the drawings feature tents at the “Pearl Roundabout”––the center of democracy protests in Bahrain during February and March 2011, and also the “Down Down Hamad” slogan.

We asked clinicians with experience in trauma to look at the drawings and make an assessment––these are also included. In one typical example, the clinical analysis describes a drawing as “overtly indicative of trauma. This child is experiencing heightened emotions, particularly fear, sorrow, and anger. She appears to be in an acute phase of grief.”

View the gallery. The exhibition will be displayed on Capitol Hill, from May 7-11, 2012, in the United Methodist Building, 100 Maryland Ave, NE (Lobby). The exhibition will also be displayed at other U.S. venues throughout the year.

But that is not the extent. Since the Syrian uprising started last March, the United States has continued to do business with Russian State arms broker Rosoboronexport, including signing a no-bid, fixed price foreign sales contract worth $375 million to purchase 21 Mi series helicopters and spare parts for the Afghan Army in May 2011. This contract comes with the option to purchase an additional $550 million in arms, which the Department of Defense is now exercising, which raises the total value of the contract to nearly $1 billion. The Department of Defense has told Members of Congress that the 21 helicopters in the initial purchase, worth $375 million, are essential to maintaining the U.S. timeline for withdrawal from Afghanistan, but they’ve been secretive about the need for the additional $550 million in helicopters and spare parts that they plan on procuring.   That contract extension could be underway now.

The U.S. government has the opportunity to end its contract with Rosoboronexport.  That is just one way in which the State Department can leverage all of its available influence over Russia: by halting a contract with the very company that provides material support such as weapons to the Assad regime.    Furthermore, State also can place pressure on Assad’s enablers in Russia by expanding travel restrictions to executives of companies like Rosoboronexport that continue to provide lethal military support to the Assad regime.

It is surprising that the U.S. Army would engage in a no-bid fixed price foreign sales contract rather than a competitive bidding process for the purchase of these dual purpose helicopters, especially given the price of this equipment. While Rosoboronexport is the main arms broker for Russian manufactured weapons, the civilian versions of the Mi-17 which come unarmed can be purchased commercially. The Department of Defense has so far not clarified why these helicopters needed to be purchased given their use for flight training for Afghan army pilots. Even more surprising is the fact that the U.S. Army would now choose to exercise the additional purchase option to procure spare parts that can be purchased on the commercial market.

In light of the crisis in Syria and it escalation over the past 14 months, how can the United States claim to be using all of its leverage to shift Russia’s support for the Assad regime while also doing business with the very company that has provided him with the necessary firepower to slaughter his own people leaving over 10,000 civilians dead?

Without overstating the powers of an election to address the myriad problems facing Egypt’s new government, it is nonetheless a good thing that for the first time in decades Egypt seems likely to have a president and a parliament with some degree of a popular mandate.

The crises and collapses of authoritarian regimes across the region of the last fifteen months—not to mention the perpetual state of regional crisis of the past 60 years—should have taught U.S. policymakers one lesson: the old formula of tolerating and colluding with authoritarianism in return for (an often illusory) stability does not work.  American leaders have said as much often in recent years, but they have yet to match policies to rhetoric as they continue to back the some of the region’s repressive regimes. For example, the Obama administration recently caved in issuing a waiver to deliver unconditionally $1.3 billion of assistance to the Egyptian military.

Egypt’s first ever contested presidential election hardly lived up to its description; it took place in September 2005, and the winner was Hosni Mubarak with a claimed 88.6% of the vote.  His closest challenger, Ayman Nour, was reported to have received just 7% of the vote and was then the target of a politically motivated prosecution that resulted in his spending the next four years in prison.

This time around, the winner of the election is not pre-ordained.  Egyptians can choose between nine candidates from across the political spectrum, many of whom have long records in public life that make them plausible occupants of Egypt’s highest office.  The two leading candidates, Amr Moussa, a former diplomat, foreign minister and Secretary General of the Arab League, and Abdul Moneim Aboul Fotouh, a prominent Islamist political figure who split with the Muslim Brotherhood last year and has since identified himself with liberal positions, including safeguarding the rights of Egypt’s minority Christian community, would be leaders with whom the United States and the rest of the international community could do business.

Given the instability and uncertainty that has prevailed in Egypt in recent months, the election of either would be a far better outcome than the United States might have hoped for.

The Arab Spring created new opportunities in Tunisia and Egypt.  For the first time U.S. efforts to promote human rights and democracy are going with the grain of political developments. For the time being at least, public opinion matters in these countries more than it has in the past.  In Egypt’s case, there will be a vastly more representative governments than could have been imagined just two years ago.

The U.S. government has an uphill struggle trying to persuade authoritarian governments to implement democratic reforms that would probably lead to their demise.  This task is made even more difficult where other strategic considerations intrude, like the need to secure oil supplies (Saudi Arabia) or to avoid further, costly unpredictable military entanglement (Syria).

And yet there has been scant enthusiasm for this rare opportunity to support democratically elected governments. This seismic shift in the political landscape of one of America’s closest regional allies has been met with an underwhelming and frankly insufficient policy response that has left Egypt’s democrats wondering which side America is on. The message sent to the broader region is that the United States is still clinging to old, failed policies of collusion with authoritarianism.

It is not too late for the administration to change course.  After the presidential election, the U.S. government will have a new partner in Egypt in the form of a civilian president and an elected parliament.  (The balance of power between the two is yet to be determined as planned revision of the constitution is one of many necessary areas of reform that has stalled in this transitional phase.)  The Egyptian military will still have extensive influence, but it should not wield the supreme executive power it has at present.  For the foreseeable future U.S. assistance to the Egyptian military is likely to continue, not least because it is seen to guarantee continued peace with Israel.  However, that leaves a chance to devise and implement bi-lateral and multilateral programs that would meet the Egyptian government’s needs for economic assistance and to structure such assistance in ways that provide incentives and builds a constituency for liberal reforms and the rule of law.

The G8 Summit—which will convene at Camp David on May 18 with the United States in the chair as host—will provide an early opportunity for the U.S. government to put substance into its claimed support for peaceful democratic transitions in the region.  This opportunity should not be wasted.

In 2011, at least 200 people, including many lawyers “disappeared,” and this year, the government is increasing its use of unofficial detention centers–so-called “black jails”–to hold dissidents. The country has also sentenced several prominent activists to lengthy prison terms. “There’s been a significant crackdown on dissension, political discussion, even the rights and the activities of lawyers who advocate on behalf of people who have been poisoned from tainted food and medicines,” U.S. Ambassador to China Gary Locke said earlier this year.

Human Rights First has urged the United States to go beyond occasional shows of support and establish a consistent policy of engagement with defenders and civil society in China and other countries. Reliable U.S. support–through embassies or other means–is critical in bolstering the work of human rights defenders around the world and increases protection to those at risk. Check out some of the cases in China that we are monitoring.

Chen Guangcheng: Mr. Chen is a self-taught lawyer who has been raising human rights issues affecting rural China, including economic and women’s rights. In 2007, Mr. Chen was imprisoned for advocating against the one-child policy rule in China, bringing international attention to the issue. Though the Chinese government released him in 2010, he remained confined to his home under house arrest–enforced by police and thugs–until he escaped in recent days. While under house arrest, his captors beat him unconscious and did not allow his six-year old daughter to leave the house to attend school. His recent escape to the U.S. embassy in China have gained international attention, making room for the possibility of Mr. Chen to leave the country and seek political asylum.

Gao Zhisheng: Mr. Gao is a Christian human rights attorney advocating for religious freedom and freedom of expression. He was repeatedly kidnapped, arrested, and tortured by Chinese authorities in 2008-2009. After a year of being disappeared, Zhisheng resurfaced in 2010 and spoke with his family for the first time since he was abducted from his home in 2009. After visiting his in-laws in April 2010 he informed family members that he would be returning to Beijing a few days later. He did not return home and went missing for months. News broke out earlier this year that Mr. Gao was detained to serve a 3-year sentence for violating probationary measures that the Chinese government has declined to release.

Ni Yulan: Ms. Ni, a former lawyer and housing rights activist, began to oppose forced evictions in her neighborhood in 2001. In 2002, the government detained her for filming a forced demolition. While in government custody, she was rendered disabled after repeated beatings by police. In 2008, the government demolished Ms. Ni’s home in retaliation for her activism. Then, in April 2011, the government detained her again along with her husband, charging them “creating a disturbance” and “fraud”; a verdict has not yet been reached. The Dutch Government awarded Ms. Ni its 2011 Human Rights Defenders Tulip Awards, but the Chinese government prevented her family members from the receiving the award on her behalf.  On April 10, 2012, Ms. Ni and her husband were officially sentenced to prison for 2 years and 8 months.

Liu Wei: A human rights lawyer from Beijing’s Shunhe Law Firm, Ms. Liu lost her license to practice law following an annual performance on May 31, 2009. She is one of twenty lawyers whose licenses were stripped for taking on “sensitive” human rights cases. Most others successfully re-obtained their licenses after negotiating with the authorities. Ms. Liu’s clients included Falun Gong practitioners, human rights activists, and HIV/AIDS carriers whose infection resulted to charges of government misconduct. Today, she continues to advocate for human rights in China, despite the fact that she is unable to represent cases as a lawyer.

Li Fangping: As a prominent human rights lawyer, Mr. Li took on a number of high-profile cases representing victims of political and religious persecution. In April 2011, the government kidnapped him and held him in an unknown location. The authorities released him on May 4, 2011, following six days in secret detention. After his release, Mr. Li hewed to the practice of many human rights defenders and declined to give details about his detention.

Ran Yunfei: Mr. Ran, a well-known and widely read Chinese blogger, frequently raised human rights violations in China online. Government authorities detained him for six months in 2011 for inciting subversion. The government unexpectedly released him in August 2011, possibly because of an online advocacy effort by government critic, Ai Weiwei.

When even the former chief prosecutor opposes a trial in the military commissions he headed, there’s something seriously wrong.

Since their creation, the Guantanamo Bay military commissions have been a political football, with Bush and then Obama Administration officials supporting their use, conservatives in Congress insisting they be used to try all suspected terrorists, and a range of Democratic lawmakers and legal and military experts criticizing them as a substandard system of justice.

With the arraignment of Khalid Sheik Mohammed and his four alleged co-conspirators scheduled for a Guantanamo military commission this weekend, the “trial of the century” has brought this exceptionally politicized contest to the fore.

On Saturday, the alleged plotters of the September 11 terrorist attacks will finally have their official day in court – more than ten years after the crimes were committed. (Proceedings begun four years ago in the military commissions by the Bush Administration were suspended after President Obama took office.) If for some families of the 9/11 victims the trial’s commencement will finally afford some relief, for other Americans, the event is primarily an embarrassment.

As former chief Guantanamo prosecutor Morris Davis wrote in Salon this week:

A military commission may be a justice-themed theatrical production – complete with a script, actors, a sound stage and costumes that create a passable courtroom-like atmosphere – but beneath that facade is a ‘heads we win, tails you lose’ charade where, as the government admits, even if a KSM or a [Abd al-Rahim al]-Nashiri is found not guilty he returns to a cell to continue serving what is likely a life sentence. That should not inspire anyone to wave the flag and shout USA! USA! in celebration of our vaunted exceptionalism.

For KSM & Co., the trial may be viewed as a vindication of sorts. Self-proclaimed jihadist warriors eager to bring death and destruction to America, the decision to keep them hidden in Guantanamo Bay for military trials sanctions that status, confirming that we have indeed been terrorized – a decade later, still too afraid to try five chained men in the heavily fortified New York federal courthouse less than a mile from the scene of the crime.

As former Navy Judge Advocate General Donald Guter wrote of the 9/11 defendants in The Miami Herald: “To deny them the martyrdom they seek, the United States should be treating them as common criminals, not warriors.” Guter, who will be observing the hearing on Saturday for Human Rights First, was in the Pentagon when American Airlines Flight 77 struck.

Meanwhile, military prosecutors are seeking the death penalty for these five men – gifting them the chance to be memorialized by their al Qaeda peers as martyrs to their cause.

It would all be laughable, if it weren’t actually so serious. The administration of justice for the deadliest terrorist attack ever on U.S. soil is nothing to play around with.

Nevertheless, on Saturday, the Gitmo games begin.

Follow Daphne Eviatar on Twitter: www.twitter.com/deviatar

Cross-posted from Politico

White House Counterterrorism Adviser John Brennan’s speech on targeted killings Monday has largely been hailed for its unprecedented openness about the U.S. use of unmanned aerial vehicles, or drones, to kill suspected terrorists around the world. Given that the U.S. government has never formally acknowledged even having a targeted killing program, that’s not saying quite a lot.

In fact, though Brennan left out many important details, he did say more than other administration officials have in the past. And at least some of what he said suggests that Washington has adopted an interpretation of its right to use drones to target suspected terrorists that is dead wrong on the law.

“In this armed conflict, individuals who are part of Al Qaeda or its associated forces are legitimate military targets,” Brennan said Monday at the Woodrow Wilson Center. “We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.”

Actually, no. The U.S. war against Al Qaeda and “associated forces” isn’t like the U.S. war against Germany and Japan during World War II. Al Qaeda and its associates don’t wear uniforms and don’t fight on behalf of any state.

Though international law recognizes that a state may go to war against armed terrorist groups, that’s called a “non-international armed conflict.” Because of the difficulty of identifying the enemy, different rules apply.

In a non-international armed conflict like this, the only “enemies” targetable are those “directly participating in hostilities” against the United States, or performing a “continuous combat function” with armed groups targeting the U.S.

Not every member of Al Qaeda or “associated forces” meets that criteria. A cook, dishwasher or doctor aiding Al Qaeda fighters may well be a “member” of Al Qaeda — yet not be lawfully targetable. Brennan, speaking on behalf of the Obama administration, ignored that fact.

The result is that the Obama administration is claiming the authority to target — and may well be targeting — individuals (and groups, in its “signature strikes,” which Brennan did not address) not legally targetable under international law. (“Signature strikes” target groups of men believed associated with terrorists, based on observed patterns of activity — even though their individual identities may be unknown.)

This is not a mere legal technicality. True, a court may never force the U.S. government to change its policy. But by announcing a legal interpretation that stretches way beyond the accepted boundaries of international law, the Obama administration has essentially granted license to other countries to do the same. They can now declare members of groups they deem enemies to be targetable by drones, wherever they may be found — including in the United States.

Brennan acknowledged Monday that while the United States is the first nation to regularly conduct strikes using remotely piloted aircraft, it won’t be the last.

Even the most technologically advanced “precision” strikes can cause innocent civilian casualties.

That’s a problem which Americans may quickly realize could hit home.

Daphne Eviatar is a senior cousel in the law and security program of Human Rights First.