Barack and the Terrible, Horrible, No Good, Very Bad Foreign Policy Week

In a way, President Obama is lucky that last week's special election in Massachusetts went so poorly for his party and domestic agenda; it did succeed in distracting the American public from the disastrous foreign policy week he had. It's not clear which revelation is worse: Obama's admission that his administration had overestimated its ability to achieve peace between the Israelis and the Palestinians, or the fact that Umar Farouk Abdulmutallab, the underwear bomber of Christmas day, was revealing scads of details about his plot and al Qaeda's operations until he was read his Miranda rights, at which point he shut up and demanded a lawyer.

The former revelation came in an interview with the president by Joe Klein in Time on the one-year anniversary of Obama's inauguration. After noting that the peace process hadn't moved along as he had hoped, Obama unleashed this stunner: "Both sides — the Israelis and the Palestinians — have found that the political environment, the nature of their coalitions or the divisions within their societies, were such that it was very hard for them to start engaging in a meaningful conversation. And I think that we overestimated our ability to persuade them to do so when their politics ran contrary to that." Obama went on to say that "it is absolutely true that what we did this year didn't produce the kind of breakthrough that we wanted, and if we had anticipated some of these political problems on both sides earlier, we might not have raised expectations as high."

Seriously? Does Obama think that every other president has failed to make headway in the Israel-Palestinian conflict for lack of trying? The Israelis and Palestinians have not "found" that their domestic political systems make it difficult for them to make peace; they've known in for quite some time now. In fact, to some degree, they've set their systems up to make peacemaking more difficult (it's an excellent negotiating strategy: I'd love to make a deal, but my domestic situation won't let me, so it's all on you!). But what's even worse is that this seems to have come as a surprise to Obama. Over at his Foreign Policy.com blog, Stephen Walt notes that:

It's not as if the dysfunctional condition of Israeli and Palestinian internal politics was a dark mystery when Obama took office, or when Netanyahu formed the most hard-line government in Israeli history. Which advisors told Obama and Mitchell to proceed as they did, raising expectations sky-high in the Cairo speech, publicly insisting on a settlement freeze, and then engaging in a humiliating retreat? Did they ever ask themselves what they would do if Netanyahu dug in his heels, as anyone with a triple-digit IQ should have expected?

Walt, however, seems to assume that the assumptions did not come from Obama himself and it's not clear why. Even if it was his advisors who made such a bone-headed assumption, it was Obama who picked the advisors. To me, this reveals an incredible amount, in relatively equal parts, of hubris and naivety on the part of the president. It's as if he assumed that his enormous popularity would be enough to break the impasses of one of the world's most intractable conflicts. I can't really think of another explanation for thinking that it would be relatively easy for the US to lean on both sides and produce a breakthrough.

Perhaps worse than Obama's problems in the Middle East was the disastrous handling of the underwear bomber. It's bad enough that the decision was made to read Abdulmutallab his Miranda rights, but it's not even entirely clear who made that decision. In testimony before the Senate Homeland Security Committee last week Director of National Intelligence Dennis Blair, Secretary of Homeland Security Janet Napolitano, and Michael Leiter, chief of the National Counterterrorism Center,all admitted that they were not consulted about how to deal with Abdulmutallab. And please note that this isn't necessarily a question of whether terrorists like Abdulmutallab should be dealt with by the civilian or military judicial systems; law enforcement officials are allowed to not read a suspect his Miranda rights if they believe there is an imminent threat to public safety that could be prevented by un-Miranda-ized questioning. And that was undoubtedly the case as al Qaeda has, in the past, used nearly synchronized attacks as a method to increase the impact of its actions (e.g. the joint bombings of the US embassies in Kenya and Tanzania, not to mention the multiple planes used in the 9/11 attacks).

However, by Mirandizing Abdulmutallb, the investigators put an end to any chance of determining of another attack was forthcoming. As the Associated Press notes, "Abdulmutallab spoke freely and provided valuable intelligence.... [He] repeatedly made incriminating statements...talking in detail about what he'd done and the planning that went into the attack. Other counterterrorism officials speaking on condition of anonymity said it was during this questioning that he admitted he had been trained and instructed in the plot by al-Qaida operatives in Yemen." However, "when [federal agents] read him his legal rights nearly 10 hours after the incident, he went silent."

This was a mistake of colossal proportions, and not just because of the potential intelligence that was lost. The fact that not one of the senior policy officials -- the DNI, the Secretary of Homeland Security, the chief of the National Counterterrorism Center, and as Byron York notes, the Director of the FBI -- shows a serious lack of judgment by both the agents in the field and by the Obama administration that seems to have empowered the Department of Justice and Attorney General Eric Holder over the main counterterror organizations. After the hearing in the Senate, all seven Republicans on the Homeland Security Committee sent a letter to President Obama asking whether the administration now has "a protocol or policy in place for handling al Qaeda terrorists captured in the United States."

Together, these two incidents deserve a lot more attention that they were given in the aftermath of the Massachusetts special election. Together, they reveal serious misunderstandings of the nature of foreign policy and international relations. And whether those misunderstandings rest with, as Stephen Walt thinks, Obama's advisors or with the president himself, they are very troubling.

And You Thought Health Care Was Complicated?

This is a graphic representation of the COIN strategy that the US is planning on implementing in Afghanistan. It was, according to The Huffington Post where I found it, obtained by Richard Engel of NBC.

The Definite, Yet Flexible, Deadline

In the days since President Obama's announcement of his decision to send 30,000 more US troops to Afghanistan, his intentions in setting a withdrawal date of July 2011 have become a little clearer. In testimony before the Senate Foreign Relations Committee yesterday, Secretary of Defense Robert Gates explained that while "The July 2011 date is the date on which we begin to transfer authority and responsibility to Afghan security forces," "the pace, the size of the drawdown, is going to be determined in a responsible manner based on the conditions that exist at the time." He further explained that while the withdrawal would begin in July 2011, it would likely take two or three years, and that "there are no deadlines in terms of when our troops will all be out."

Assuming Gates is accurately representing the intentions of President Obama (and there's no reason to think he isn't), it means that the deadline is, as I wrote on Wednesday, much closer to being meaningless than it is counter-productive. Over at Shadow Government, Kori Schake agrees with this assessment, writing that:

There is a precedent we loyal opposition could help steer President Obama toward: the flagrant prevarication committed to by civilian and military leaders in the Clinton administration that American troops deploying to the Balkans in 1995 would be withdrawn in a year. The fiction was necessary to gain Congressional support for an unpopular involvement; 1,500 U.S. troops are still deployed in Kosovo now, 14 years later. There are lots of important differences between the wars in the Balkans and the war in Afghanistan -- not least the magnitude of expense in Afghanistan -- but in the Balkans, Congressional skepticism was overcome as we began to succeed. Let's hope such a calculation underlies the president's artificial timeline in Afghanistan.

But Schake seems to be ignoring a difference that worries me, a difference that could shift a meaningless deadline to a counter-productive deadline. When President Clinton promised that the US troops deployed to the Balkans would begin returning in a year, the deadline fell after the 1996 election; indeed, almost immediately after the election, in which foreign policy and the US troop presence in the Balkans was scarcely discussed, Clinton explicitly broke his promise and decided "in principle" to keep the troops in place until at least mid-1998, 18 months longer than his self-imposed deadline.

But Obama's July 2011 comes before his re-election campaign in 2012. Given that many are predicting relatively high losses for the Democratic Party in 2010 midterm elections, will Obama risk the backlash from breaking his promise? Treating the July 2011 deadline as meaningless risks giving the Republicans an easy issue with which to attack Obama ("he broke his promise") and risks alienating the anti-war wing of his own party, who will likely be dismayed if July 2011 comes and gos with little progress in bringing the boys home. To wit, the New York Times has an article detailing the frustrations of the Democratic Party with Obama so far. The article details "a subtle shift in which Democrats in Congress are becoming less deferential to the White House, making clear that Mr. Obama will not always be able to count on them to fall into line and highlighting how Mr. Obama’s expansive ambitions are running up against political realities."

Will Obama be tempted to enforce his self-imposed deadline to reap political benefit? Hopefully not...but he might. Which is why the deadline was a bad idea in the first place. It's either meaningless or counter-productive; it's just hard to see what Obama gets out of it that he couldn't have accomplished through the creation of benchmarks.

Wars are not fought on time lines; they are fought to achieve strategic goals. And those goals are either worth fighting for or they are not. Obama has stated that the war in Afghanistan is one of "necessity" and is a "vital national interest." The war should then be fought to achieve the strategic goals that the commander-in-chief establishes. It is, of course, reasonable to ask at certain points in time whether the goals are being achieved and whether the cost is justified. But it is dangerous to create an arbitrary deadline as Obama has done here.

The Afghan Deadline

President Obama did, in my analysis, the right thing by deciding to send approximately 30,000 more US troops to Afghanistan, and to request 5,000 more troops from NATO (although it's entirely unclear if NATO can or will come up with the requested troops), in order to provide General Stanley McChrystal with the soldiers he believes he needs to implement a counter-insurgency strategy across the country. All in all, it was a good speech, in which Obama clearly laid out the strategic rationale for sending the troops. Even more importantly, he clearly explained the strategy which those troops will help implement:

First, we will pursue a military strategy that will break the Taliban's momentum and increase Afghanistan's capacity over the next 18 months.

The 30,000 additional troops that I'm announcing tonight will deploy in the first part of 2010 -- the fastest possible pace -- so that they can target the insurgency and secure key population centers. They'll increase our ability to train competent Afghan security forces, and to partner with them so that more Afghans can get into the fight. And they will help create the conditions for the United States to transfer responsibility to the Afghans.

Because this is an international effort, I've asked that our commitment be joined by contributions from our allies. Some have already provided additional troops, and we're confident that there will be further contributions in the days and weeks ahead. Our friends have fought and bled and died alongside us in Afghanistan. And now, we must come together to end this war successfully. For what's at stake is not simply a test of NATO's credibility -- what's at stake is the security of our allies, and the common security of the world.

But taken together, these additional American and international troops will allow us to accelerate handing over responsibility to Afghan forces, and allow us to begin the transfer of our forces out of Afghanistan in July of 2011. Just as we have done in Iraq, we will execute this transition responsibly, taking into account conditions on the ground. We'll continue to advise and assist Afghanistan's security forces to ensure that they can succeed over the long haul. But it will be clear to the Afghan government -- and, more importantly, to the Afghan people -- that they will ultimately be responsible for their own country.

Second, we will work with our partners, the United Nations, and the Afghan people to pursue a more effective civilian strategy, so that the government can take advantage of improved security.

This effort must be based on performance. The days of providing a blank check are over. President Karzai's inauguration speech sent the right message about moving in a new direction. And going forward, we will be clear about what we expect from those who receive our assistance. We'll support Afghan ministries, governors, and local leaders that combat corruption and deliver for the people. We expect those who are ineffective or corrupt to be held accountable. And we will also focus our assistance in areas -- such as agriculture -- that can make an immediate impact in the lives of the Afghan people.

The people of Afghanistan have endured violence for decades. They've been confronted with occupation -- by the Soviet Union, and then by foreign al Qaeda fighters who used Afghan land for their own purposes. So tonight, I want the Afghan people to understand -- America seeks an end to this era of war and suffering. We have no interest in occupying your country. We will support efforts by the Afghan government to open the door to those Taliban who abandon violence and respect the human rights of their fellow citizens. And we will seek a partnership with Afghanistan grounded in mutual respect -- to isolate those who destroy; to strengthen those who build; to hasten the day when our troops will leave; and to forge a lasting friendship in which America is your partner, and never your patron.

Third, we will act with the full recognition that our success in Afghanistan is inextricably linked to our partnership with Pakistan.

We're in Afghanistan to prevent a cancer from once again spreading through that country. But this same cancer has also taken root in the border region of Pakistan. That's why we need a strategy that works on both sides of the border.

In the past, there have been those in Pakistan who've argued that the struggle against extremism is not their fight, and that Pakistan is better off doing little or seeking accommodation with those who use violence. But in recent years, as innocents have been killed from Karachi to Islamabad, it has become clear that it is the Pakistani people who are the most endangered by extremism. Public opinion has turned. The Pakistani army has waged an offensive in Swat and South Waziristan. And there is no doubt that the United States and Pakistan share a common enemy.

In the past, we too often defined our relationship with Pakistan narrowly. Those days are over. Moving forward, we are committed to a partnership with Pakistan that is built on a foundation of mutual interest, mutual respect, and mutual trust. We will strengthen Pakistan's capacity to target those groups that threaten our countries, and have made it clear that we cannot tolerate a safe haven for terrorists whose location is known and whose intentions are clear. America is also providing substantial resources to support Pakistan's democracy and development. We are the largest international supporter for those Pakistanis displaced by the fighting. And going forward, the Pakistan people must know America will remain a strong supporter of Pakistan's security and prosperity long after the guns have fallen silent, so that the great potential of its people can be unleashed.

But one part puzzles me: the declaration that troops will begin withdrawing in July 2011. This is completely at odds with the rationale provided in the speech. If Obama believes, as he said, that "it is in our vital national interest to send an additional 30,000 U.S. troops to Afghanistan" then how can he set a vague, undefined, and largely arbitrary deadline of 18 months for the mission?

I think there are two possible explanations and they're not mutually exclusive. First, that Obama is sending a message to the left-wing of the Democratic Party that he does not envision a long-term open-ended military presence in Afghanistan. And second, that Obama is sending a message to Afghan President Hamid Karzai that the US presence in his country will not be indefinite, and thus he needs to ensure that the Afghan government and armed forces will be up to the task of providing security, services, and stability when the US forces leave. Obama himself rejected the absence of a deadline, saying "[such an absence] sets goals that are beyond what can be achieved at a reasonable cost, and what we need to achieve to secure our interests. Furthermore, the absence of a time frame for transition would deny us any sense of urgency in working with the Afghan government. It must be clear that Afghans will have to take responsibility for their security, and that America has no interest in fighting an endless war in Afghanistan."

Both of these may be good and necessary messages. But the setting of the deadline is meaningless at best, and counterproductive at worst. The deadline might be meaningless because Obama didn't say anything more than "these additional American and international troops will allow us to accelerate handing over responsibility to Afghan forces, and allow us to begin the transfer of our forces out of Afghanistan in July of 2011." As Stephen Biddle commented in a Council on Foreign Relations interview, "[the Obama administration has] deliberately not said when the withdrawal will end, or how deep it will go, or how fast it will proceed. So all they're actually saying in concrete terms is in August 2011 there will be at least one fewer American soldier in Afghanistan than there was in June 2011." If that's the case, the deadline is truly meaningless, and Obama will have to deal with the backlash of his decision in the run-up to the 2012 election.

But the deadline might be counter-productive, especially as it relates to the mission at hand. If Obama means the deadline seriously, what happens if, come July 2011, there is good, solid progress but the mission is far from over? It's one thing to refuse to commit the US to an open-ended, indefinite combat mission with no clear exit strategy; it's another thing entirely to undermine a successful mission in progress by arbitrarily adhering to a withdrawal date picked a year-and-a-half earlier. The New York Times is already reporting that the deadline is causing concerns in Afghanistan:

[the Afghan foreign minister, Rangin Dadfar Spanta] admitted that the 18-month timeline for the start of a transition to Afghan authority had served something of a shock therapy to the Afghan government.

“Can we do it?” he said. “That is the main question. This is not done in a moment, it is a process. They have to have strategic patience with us.”

In a clear sign of his government’s uneasiness at the flagging American enthusiasm for the Afghan war, Mr. Spanta said he had just presented a proposal to Mr. Karzai to work out a new strategic partnership with the United States to secure the kind of predictable, long-term assistance that close American allies Israel and Egypt enjoy.

All parties involved agreed that a great deal of the job ahead was about managing perceptions.

“We have to manage the public,” said a senior Afghan government aide, speaking anonymously so he could talk more freely.

President Obama was very much speaking to the American public in his speech, he said. American military officials had assured them that the 18-month timeline was more for the American public opinion than any unmovable deadline for the Afghans.

It would seem to have been much wiser for Obama to discuss clear and unambiguous metrics for judging the progress of the COIN surge -- to lay out exactly what the US expects to see happen, particularly on the two most important issues: the corruption and efficacy of the Afghan government and the training of effective Afghani military and police forces. If, after a reasonable time period following the surge (say, 18 months?), progress on the metrics was not acceptable, withdrawal of US troops would commence. If, however, progress was acceptable, and the job was not yet finished, it would then make sense to leave the troops in place to see the job through to the end. This strategy is essentially the one eventually employed in Iraq and it worked well there, encouraging action from the Iraqi government while making it clear that progress was essential to the continued US presence.

Rather than setting an either meaningless or counter-productive withdrawal date, President Obama should have made it clear that the US troop presence was entirely dependent on the Afghan government meeting clear benchmarks on ending corruption, providing basic services, and the creation of effective national armed forces. Given the vague and undefined deadline Obama set out, it's not impossible that he will ultimately employ such a tactic, which would not only be more reassuring to the US's Afghan and NATO partners, but also make clear what is expected of those partners. Let's hope the speech is followed by benchmarks.

UPDATE:

From an Associated Press article reporting on the congressional reaction to President Obama's announcement:

[US Secretary of Defense Robert] Gates suggested the July 2011 withdrawal date was both firm and flexible, frustrating lawmakers who said that wasn't possible.

When pressed, Gates said the beginning of drawing down troops would not necessarily be based on conditions in Afghanistan and that the president was committed to begin pulling at least some troops out by the target date.

At the same time, the president will have the authority to change gears after the Defense Department conducts a formal assessment in December 2010.

Ah...that clears everything up.

Or Else What?

In the wake of a demand from the International Atomic Energy Agency to stop work on its recently-revealed uranium enrichment plant, Iran has threatened to withdraw from the Nuclear Non-Proliferation Treaty and to begin construction on ten more nuclear enrichment facilities. And while Iran may not have the capability or will to carry out either threat, the threats in and of themselves highlight the problem the international community faces in dealing with a regime like Iran: How does the international community deal with such intransigence? Iran is clearly in violation of international law as well as of international opinion and sentiment. However, all of the promised inducements, compromises, and incentives, including the recent offer to enrich Iran's uranium outside of Iran to ensure it could not be used for a weapon, have been rejected. Which leaves the international community, the UN, and the US back where it has been for the past several years: Relying on the old mantra of Comply with international law or else.

Or else what?

It's the "what" that is so important here, and that is do difficult for the international community to define. The UN has demonstrated time and time again that it can, occasionally, muster the will to impose sanctions on the most flagrant violators of international law. But, rarely does it know what to do when sanctions fail to yield results.

This is the problem today, just as it was the problem in the run-up to the US invasion of Iraq. What is the "what"? What will happen to a state that refuses to comply? Even when the Security Council members can overcome their own narrowly-defined national interests to reach a consensus, that's usually as far as they will go. So while Russia and China have been willing to rebuke Iran for its violations of Iran's obligations under the NPT, neither has been willing to discuss, let alone implement, any punishments intended to force compliance. President Obama has not shown a willingness to meld negotiations with punishment, leaving them as separate outcomes, making it possible for the avoidance of even the consideration serious punishment so long as negotiations are proceeding. So when Iran is challenged with a "comply or else" threat, the "or else" is left undefined. Iran doesn't know what will happen, nor does the US, the UN or anyone else.

If the US and the international community are serious in warning that they are "not going to just wait indefinitely and allow for the development of a nuclear weapon [and] the breach of international treaties" (please note that I do not necessarily agree with this position) then the negotiations and the threats need to be combined. The US needs to work to build a consensus with its international partners on what actions are to be demanded of Iran and what consequences will follow if Iran does not comply.

The stakes get higher in Iran day by day as Iran refuses to cooperate with the IAEA. The US needs to act quickly; once Iran develops a nuclear weapon, the whole equation changes.

More Thoughts on the Trial of KSM

Yesterday, Attorney General Eric Holder defended the Obama administration's decision to try Khalid Sheikh Mohammed in federal court in New York City. While Holder did admit that "we are at war" with al Qaeda, the civilian court system was the best venue to try KSM: “We need not cower in the face of this enemy. Our institutions are strong, our infrastructure is ready, our resolve is firm, and our people are ready.”

But there are still several problems with this decision that bother me, and make me wonder why the Obama administration made this decision.

First, in response to stated worries by the senators (Holder was testifying about the decision before the Senate Judiciary Committee) about the chance that KSM would not be found guilty, Holder responded “Failure is not an option.” Now, it's likely that Holder was speaking rhetorically here and that he didn't actually mean that it is impossible for KSM to get off on the charges. But the remark certainly implies that the civilian trial has been predetermined, or at least will be little more than a show trial. If the decision to shift trial venues was primarily intended to erase the bad taste remaining from the Bush administration's efforts to evade the law and the taint of Guantanamo, anything that calls into question the fairness of the civil trial KSM is about to undergo undermines that intent. When the Attorney General says failure is not an option, it certainly raises questions as to whether KSM can, in fact, receive a fair trial. Is it possible to find American citizens, and more specifically New Yorkers, who won't have prejudged the case and KSM's guilt? Furthermore, the New York Times reports that "other Justice Department officials have said that even if Mr. Mohammed is acquitted, the Obama administration will keep him locked up forever as a 'combatant' under the laws of war." How will that look? How will the international community respond if KSM is acquitted under our domestic laws and then kept indefinitely in military custody? Won't that simply reinforce the perception of injustice?

Second, in an excellent piece over at Slate, David Feige warns that, far from upholding the American principal of law and order, this trial may very well undermine our legal system by "generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients." According to Feige, because "No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial," KSM's defense lawyers will be forced to rely on two strategies: 1) An argument that persuasive evidence of torture should result in the suppression of a great deal of evidence; and 2) to use the discovery process to uncover facts that embarrass or discomfit the government. Feige points out how this strategy forced the US government to back away from its desired three life sentences for "American Taliban" John Walker Lindh and settle for 20 years in prison in exchange for Lindh agreeing to a gag order and dropping his claims of torture and mistreatment. This time, according to Feige:

They'll allege a violation of KSM's right to a speedy trial, claiming that the years he spent in CIA detention and Gitmo violated this constitutional right. They'll seek suppression of KSM's statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary. They will insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree. They will demand the names of operatives and interrogators, using KSM's right to confront the witnesses against him to box the government into revealing things it would prefer to keep secret—the identities of confidential informants, the locations of secret safe houses, the names of other inmates and detainees who provided information about him, and a thousand other clever things that should make the government squirm. The defense will attack the CIA, FBI, and NSA, demanding information about wiretapping and signal intelligence and sources and methods. They'll move to dismiss the case because there is simply no venue in the United States in which KSM can get a fair trial.

...

The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time—a legal way both to torture and to prosecute.

By prosecuting KSM in civilian courts, the rule of law itself may very well be damaged. Take the question of torture. Even if a court is willing to determine that waterboarding is not torture but a legitimate coercive interrogation technique, the government's own memoranda make it clear that KSM was waterboarded in violation of the rules established to ensure that the use of waterboarding would not constitute torture. According to the legal opinion written by Steven Bradbury of the Office of Legal Counsel in the Department of Justice (p.15):

The waterboard may be authorized for, at most, one 30 day period, during which the technique can actually applied on no more than five days...Further, there can be no more than two sessions in any 24-hour period. Each session--the time during which the detainee is strapped to the waterboard--lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period.

But, on p. 37, we are informed that the waterboard was used "183 times during March 2003 in the interrogation of KSM (Khalid Sheikh Mohammed)." As I wrote on April 20, if you "do the math on the instructions from p. 15, the rules limit the use of the waterboard to no more than 60 times per month (five days per month, two sessions per day, six applications of water during each session; 5x2x6=60). And yet, KSM was waterboarded 183 times." There is seemingly no question that the government broke its own rules on the waterboard with KSM and that breaking those rules almost certainly means that KSM was tortured, even if the use of the waterboard, in and of itself, does not equate to torture. What will a trial judge and a jury do with this information? What happens when KSM's defense attorneys claim that everything KSM admitted was tainted by the abusive and wildly excessive torture he suffered? As Feige points out, the evidence could be dismissed, raising the likelihood that KSM could be acquitted. Or, the claim will be ignored or, if the government has enough evidence to convict KSM even if all torture-tainted evidence is throw out, rendered irrelevant. Either way, this has the potential to create extremely dangerous precedents and procedures within the US legal system.

To me, this whole thing seems like a no-win situation. If KSM is convicted, it won't put to rest any doubts about the fairness of the American legal system and its application in the war on terror. And if by some unforeseeable development he's acquitted, it's hard to imagine a bigger transgression against justice.

The Trial of Khalid Sheik Mohammed

Last week, the Obama administration annouced that Khalid Sheikh Mohammed, the suspected mastermind of the 9/11 attacks, along with four other suspected members of al Qaeda will be transferred from the detention facility at Guantanamo Bay Naval Base to New York City to face trial in civilian court. Interestingly, however, Obama has not decided to use the civilian courts for all of the Guantanamo detainees; five more face trial by military commission, largely because their crimes were more directly pursuant to military operations:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

Al-Nashiri is an accused mastermind of the deadly 2000 bombing of the USS Cole; Khadr is a Canadian charged with the 2002 murder of a U.S. military officer in Afghanistan. Khadr was 15 years old when he was captured in July 2002.

Additionally, several more will not be tried at all; rather, they will continue to be held indefinitely without charge or trial.

This decision has, of course, outraged many who believe that the decision to try KSM in civilian court is dangerous. John Yoo, the architect of many of the most controversial Bush-era legal decisions, argues in the Wall Street Journal:

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Now, however, KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it.

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.

In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.

Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the "crime scene" under battlefield conditions? Will they have to take statements from nearby "witnesses"? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

...

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui's lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

In response to Yoo and others who have decried Obama's decision, Tommy Crocker of the University of South Carolina's Law School, guest-blogging over Opinio Juris, writes:

Mr. Yoo [does not make] this clear, but [he] seems to rely on a judgment about the nature of the acts perpetrated by terrorists. Are some acts so heinous that by their very nature, they morally “deserve” to be punished by less robust rights-protecting procedures? I can see that for pragmatic purposes, different criminal acts may lead to differing needs to seek punishment in ad hoc tribunals or military commissions which may afford alternative procedures. But to my knowledge special tribunals do not establish differing degrees of rights-protections based on moral judgments about the nature of the underlying criminal acts over which they sit in judgment. Ordinarily, questions of moral desert occur both before and after a trial—in judgments about which acts to criminalize and how severe to punish them—not in decisions about trial procedure itself, nor in decisions about who receives basic human rights protections. Thus, the underlying view is not only that we are engaged in a “new kind of war” facing a new kind of enemy whose very warlike actions are illegal, but those actions are of a kind morally deserving of a lesser legal process.

I think this view mistaken. I also see no reason to think that precluding this type of moral judgment harms national security—quite the opposite. Procedural protections are not, nor should they be, grounded in prior judgments of moral desert. To go down this path is to go down the path of varying human rights protections based on moral judgments about who deserves them. On this score, we make no further distinctions than to say that if anyone deserves them, we all do.

Not surprisingly, I think both of these guys are wrong. Crocker's argument seems a bit bizarre to me. I don't see why or how a moral judgment needs to be part of the equation here. Yoo isn't arguing that members of al Qaeda are inhuman and therefore undeserving of rights and due process; rather, he's arguing that the US is involved in a war with al Qaeda and that different legal codes apply in time of war. People who commit war crimes are not tried in civilian courts; they are tried by military commissions with different legal rights than civilians and under the laws of war which are different than civilian laws. One can argue about whether terrorism of the kind practiced by al Qaeda should be dealt with in a military framework, but Crocker seems to dismiss this argument entirely.

The nature of al Qaeda and its missions do, in my opinion, lend themselves to the military model rather than a civilian legalistic frame. The inter- and trans-national nature of the organization, its efforts to kill large numbers of non-combatants, its frequent targeting of military assets and the difficulties posed by the standard law enforcement models (e.g. its emphasis on procedural justice and ex post, rather than ex ante, actions) are not well suited for a civilian/traditional law enforcement response. That's not to say that law enforcement plays no role, or that the military option is always the proper one. But the US is clearly involved in military operations against al Qaeda and mass terrorism of the kind perpetrated by al Qaeda is much closer to a war crime than it is to murder.

That said, I think Yoo's argument is wrong as well. Well, not so much wrong as problematic. The problem is the poor decisions the Bush administration made in the early days of the war on terror regarding the detainees; decisions in which Yoo was involved as he makes abundantly clear in his memoir War By Other Means: An Insider's Accout of the War on Terror.

As suspected members of al Qaeda began to trickle into Guantanamo Bay (along with hundreds of innocent people handed over to US forces by opportunistic Afghani militants seeking reward money) the Bush administration needed to decide what laws would apply to these people. The choices were civilian law or military law. The Bush administration chose neither.

The selection of Guantanamo Bay as the detention facility was explicitly intended to place the detainees beyond the reach of US civilian courts and laws. Fine. But no one is outside of all law. If individuals seized by US military forces are not to be granted the rights and protections of US civilian law then they must be granted the rights and protections of the laws of war, as embodied in the Geneva Conventions. But the Bush administration sought to deny KSM and his colleagues even these rights.

Following the Geneva Conventions would not have guaranteed KSM protections as a prisoner of war. The Geneva Conventions make it clear that al Qaeda was fighting in violations of the laws of war, and thus not due the protection of POW status and eligible for trial for their actions. All that was needed was an Article 5 hearing to determine status; not guilt, just status. Each detainee needed to be given the opportunity to claim before a competent panel that he was not a member of al Qaeda or that he was fighting in accordance with the laws of war. Once the determination was made that the detainee was a member of al Qaeda and was violating the laws of war, the detainee could be denied POW status and subject to trial by a military commission (Common Article 3 of the Conventions protects the rights of non-POWs by guaranteeing them fair trials).

However, Yoo and the Bush administration sought to have it both ways. They did not want US law to apply, nor did they want the Geneva Conventions to apply. And this kicked off a series of court cases between detainees challenging their status and the administration. If the administration had simply granted KSM and his fellow al Qaeda suspects an Article 5 hearing to determine their status as illegal combatants under the laws of war, we most likely wouldn't be in the mess we're in today. The US would have then been perfectly within its rights under the laws of war to either hold the detainees indefinitely until the end of hostilities or to try them under military commissions. Of course, the argument could still be made that the laws of war were not the appropriate laws to be used. But as it seems that part of Obama's decision to move KSM into the civilian judicial system is to erase the doubts and questions raised by the Bush administration's attempts to escape the law perhaps Obama would have been happy to try KSM under military law as he is doing with Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri. In fact, the whole thing might be over by now, as KSM was prepared to plead guilty to a military tribunal late last year.

I certainly understand Obama's desire to make amends for the legal mistakes of the Bush administration, but moving KSM to New York is a risky move. Despite Obama's predictions that KSM will be found guilty and put to death, there most certainly is a risk that KSM will not be given the death penalty (as occurred in the trial of Zacarias Moussaoui, when one juror balked at handing down a death sentence) or that he won't be found guilty at all for a number of procedural reasons. And Yoo's warnings about the threats to intelligence and counter-terror operations should not be taken lightly either. Military commissions can be both fair and efficient; in fact, in this case I'd assume that KSM would get a more fair trial in a military tribunal than before a panel of American citizens. But the die has been cast; let's hope KSM gets what is coming to him.