An Iranian Referendum on US Foreign Policy

Recent events surrounding Iran's nuclear program have certainly stirred up a hornets' nest of concerned observers. First, Iran admitted the existence of secret nuclear enrichment plant that led to even Iran's erstwhile allies of Russia and China to issue rebukes. Then today, to wrap up two days of war games, Iran tested upgraded versions of its most advanced medium-range missiles -- the Shahab-3 and the Sajjil, both of which have ranges sufficient to threaten Europe and Israel. Coming on the heels of the UN General Assembly meeting, these developments have seemed to create a new impetus for tightening the screws on Iran in an effort to prevent Iran from developing an extant nuclear weapons capability (while the US believes Iran is close to having the ability to assemble a nuclear bomb on short notice it does not claim that Iran presently has any functional nuclear weapons). Additionally, in the wake of the decision by the Obama administration to scrap plans to deploy a ballistic missile defense system in Poland and the Czech Republic, Russia had made noises indicating it may be willing to impose stricter sanctions on Iran for its uncooperative behavior and unwillingness to comport to its international obligations.

All of this makes for an important crossroads for President Obama and his preferred course of foreign policy. Obama has pursued, as he did during his electoral campaign, a strategy of "negotiate first." However to date Obama's offer of negotiations have been rewarded with very little success, largely because Iran has had little reason to respond. Iran most likely sees nuclear weapons as a critical component of its national interest, both to defend itself against the US (and Israel) but also to increase its regional power. Because the US has been offering negotiations from a position of weakness, Iran was able to ignore the calls to talk about its nuclear program.

Now, however, Obama has a real opportunity to increase the pressure on Iran and make it impossible for Iran to continue to avoid negotiating. France and Great Britain are both ramping up the rhetoric and have expressed their willingness to support tougher sanctions, as have Russia and China, although it's still far from certain what Russia will actually do when it comes time to enact (or enforce) increased sanctions. Obama must exploit this window of opportunity to impose tougher conditions on Iran prior to continuing discussions. Obama must move quickly to exploit the international furor at Iran's secret enrichment facility and the current Russian goodwill. If the moment had been exploited, sanctions can be put in place that could force Iran to negotiate seriously; sanctions could even be put in place with an automatic waiver to suspend them in the event Iran chooses to open meaningful negotiations.

If Obama sticks to his "negotiate first" policy and refuses to push the Security Council to impose more serious penalties on Iran for its intransigence, he will not only have missed a golden opportunity. He will also expose his foreign policy as toothless and ill-suited for the turbulent world of international relations. If, however, he realizes that serious negotiations fundamentally depend on serious consequences (or at the least the threat of serious consequences), he may be able to take advantage of the currently open window of opportunity and lay the groundwork for a meaningful international coalition to deal with Iran.

Time For A Decision On Afghanistan

In the wake of the leak of General Stanley McChrystal's report on the situation in Afghanistan, in which McChrystal warns that more troops are needed in Afghanistan and if they are not provided the situation "will likely result in failure," President Obama is faced with perhaps the most difficult and important foreign policy decision of his administration. And it seems as if, so far, Obama has no idea what to do.

Back in February, the new president referred to Afghanistan as, along with Pakistan, "the central front in the war on terror" and that he would try to replicate the US "surge" strategy in Iraq that stabilized that country. In March, Obama warned that if “if the Afghanistan government falls to the Taliban or allows al-Qaida to go unchallenged that country will again be a base for terrorists.” In April, Secretary of State Clinton told Congress that "the core goal of President Barack Obama’s anti-terror strategy is to defeat al-Qaida and prevent its return to Afghanistan." And just last month, Obama declared that that the war in Afghanistan "is not a war of choice. This is a war of necessity. Those who attacked America on 9/11 are plotting to do so again."

So what are we to make of Obama's comment last week that there will be "no quick decision" on whether to increase the US troop presence in Afghanistan? If the war in Afghanistan is a "war of necessity," if it is "the central front in the war on terror," what is there to think about when the commanding general reports that more troops are needed to stave off defeat?

Unless Obama has changed his mind about the nature and import of the war, the answer is likely that domestic politics has interfered with his strategic calculations. Perhaps the need to hold together the Democratic party on the issue of health care has caused Obama to back away from Afghanistan as more and more Democrats become disillusioned with the worsening situation there.

But this is a very dangerous strategy. Obama's wavering is undoubtedly contributing to growing public uncertainty about the campaign. Late last month, a majority of Americans questioned the necessity of the war, while just over 25% indicated that they would support a decision to increase troop levels. A poll earlier this month revealed that 41% of Americans want troop levels reduced. As work by Peter Feaver, Chris Gelpi, and Jason Reifler (full disclosure: Feaver and Gelpi were on my dissertation committee, while Reifler was in graduate school with me) demonstrates, American support (or lack thereof) for US military operations depends on "the retrospective attitude of whether the war was the right thing in the first place, and the prospective attitude of whether the war will be won." So, when Obama backs away from his certainty that Afghanistan is a war of necessity that must be fought to protect national and international security and when he wavers on whether to send troops, public opinion wavers right along with him.

This is not to argue that Obama MUST send more troops to Afghanistan. There are many good arguments that Afghanistan is, in fact, no longer a war worth fighting. But, his indecision is perhaps the most dangerous of any action (or inaction). The longer a decision on increasing troops is delayed and the less certain Obama and his administration seem about whether the war can be won, the more quickly public opinion will erode. Wars like Iraq and Afghanistan, given their complicated nature and protracted lengths, depend heavily on solid public support. When that erodes, particularly for a president with as grand a domestic agenda as Obama, success becomes less and less likely.

President Obama needs to make his decision and he needs to make it soon. If he does, in fact, believe that Afghanistan is a war of necessity -- a war that American national interest demands be fought -- then he has no choice but to fight it with all the necessary resources. Of course, there are still debates over strategy to be argued. But when the top commander is warning of defeat unless more troops are sent, strategy debates need to settled quickly. If Afghanistan is no longer a war of necessity -- if the US really doesn't care whether the Taliban regains control of the country, so long as al Qaeda is unable to use the country as a base as it once did -- then Obama needs to make that decision clear as quickly as possible. But the current situation of indecision and uncertainty is untenable and dangerous. It's time for a decision on Afghanistan.

Obama and European Missile Defense

President Obama's decision to cease the deployment of a long-range ballistic missile defense system in Poland and the Czech Republic has ruffled lots of feathers. There seem to be two major objections to Obama's move. First, that scrapping the program increases the threat posed by Iran's potential nuclear capability, and second, that scrapping the program is a slap in the face to the Eastern European countries that have proven themselves to be staunch allies. Those who support Obama's decision point to the fact that Obama plans to replace the scrapped system with one designed to intercept short- and medium-range missiles rather than long-range ballistic missiles.

Obama's decision was, I believe, the correct one. But, I'd like to see him go all the way and scrap missile defense entirely. I've been on the record for years in my opposition to the cost of developing a functional missile defense program, and still believe that the money would be better off put towards other things, such buying more F-22s, hardening the US grid against EMP attacks, or developing better cyberspace defenses. I don't see that that calculus has changed. It's true that defending against short- and medium-range missiles aimed against US allies rather than against CONUS itself makes more sense; deterrence is likely to be more difficult to achieve when the stakes are asymmetric (it's one thing to threaten a nuclear response to a strike against an American; it's quite another to do so in response to an attack against an ally). But, given all the threats faced by the US and the limitations on resources, certainly exacerbated by the recession, I'm still doubtful that missile defense is worth the money.

But, while Obama's decision moved in the right direction, it was handled very poorly. First, it is not likely to go over well with the Czech Republic and Poland. Both countries have been solid US allies, expending their own political capital to support US decisions, are are justifiably worried now, especially given the US reaction to the Russian invasion of Georgia, that the US may be more interested in easing tensions with Russia than protecting their far-away allies. For Eastern Europe, missile defense wasn't so much a protection against Iran as it was a sign of US commitment to their defense. Moving away from that doesn't help to convince these states that they will be able to count on the US when the chips are down (certainly, the weaknesses of NATO being exposed in Afghanistan are compounding those fears). Certainly, more should have been done to consult with Poland and the Czech Republic as well as to signal America's strong commitment to them.

Even worse, however, is that the US has made a huge concession to Russia without getting anything in return. Russia had long voiced loud opposition to the proposed eastern European deployment. But the program, as envisioned, offered no threat to Russia's nuclear deterrent. This was a system designed to intercept a small number of missiles, not the hundreds or thousands that would be launched in a Russian response (of course, if Russia was planning on launching a small-scale strike against Warsaw, the defense shield would have been problematic). So, Russian opposition to the missile defense program stems from Russian opposition to increasing US entrenchment in what Russia considers to be its backyard. By backing down here, Obama has likely signaled to Russia that the US is unsteady in its commitment to eastern Europe. Furthermore, that concession came with no reciprocal concession from Russia. At the very least, Obama should have extracted a promise from Russia to support increased international sanctions on Iran for continuing to defy international law with its nuclear program (a position I advocated almost two years back). Instead, the US gave Russia a major policy victory, and in return Prime Minister Putin announced just last week that Russia would not support increased sanctions on Iran, a stance further supported by Foreign Minister Lavrov, and that it is convinced that Iran's nuclear program is peaceful. Russian President Medvedev did say earlier this week that while “sanctions are not very effective on the whole...sometimes you have to embark on sanctions and they can be right" which seemed to hint at a possibility Russia would, in fact, back stronger sanctions. But, that comment isn't a clear enough commitment to warrant giving up such a important bargaining chip as the European missile defense system.

It's possible that a deal has been worked out and that when the issue of Iran comes up in the Security Council Russia will indeed support the imposition of tougher sanctions. But I'm not holding my breath. By not extracting stronger public statements that would commit Russia to a course of action, the door has been left open for a Russian change of position. Obama made the right decision, but in all the wrong ways.

Welcome Back!

Howdy, if there's anybody still out there...Security Dilemmas is back. I took the summer off to recharge the batteries. Blogging can be an exhausting and demanding avocation and the pressure of having to keep up with international politics had grown quite tiring. After a few months of rest, however, I'm tanned, rested, and ready to resume blogging. And so, without any further ado....

June 4, 1989

Drawing the Line

The situation on the Korean peninsula continues to escalate, with the latest being North Korea's threat to attack US and South Korean warships if either country attempts to search North Korean vessels as part of the Proliferation Security Initiative (the PSI is one of President Bush's biggest successes, as it created a global network of inspections and interdictions aimed at preventing transfers of nuclear technology and materiel).

In the face of North Korea's insults, threats, and saber rattling, the US needs to respond forcefully and unambigiously: both the US and South Korea will act to enforce international law, and any attack on South Korea warships or other assets will be met in kind. The US has far too much at stake here to back down in the face of a threat that is, I believe, more bluster than anything: North Korea will lose any military engagement between it and the United States and even losing a small exchange will seriously compromise the stability of a regime that depends on the full and unquestioning support of the military. While the US has few good options, North Korea simply has none. Backing down here will allow North Korea to proliferate internally as well as to continue aiding other countries, such as Syria, to do so as well. Keeping North Korea in check is critical for maintaining stability in Asia, and the US simply cannot allow North Korea to willfully defy international law and will.

This is certainly shaping up to be President Obama's first serious test. Obama needs to reassure American allies and make it clear to both Russia and China that the US will not permit North Korea to proliferate in this manner, to defy international law and will, or to attack South Korea in any way. Despite its often-times bizarre behavior, North Korea has always behaved rationally; it's hard to see what North Korea stands to gain by going to war with either South Korea or the US. Rather, North Korea is counting on the international community to once again fail to back up its words with strong action. Obama must be prepared to send American soliders, sailors, and airmen into combat, but being ready to do so makes it all the more likely that he will not have to do so.

Another Opportunity for Obama to Miss an Opportunity

When North Korea launched a "satellite" back in April, I wrote about how Obama missed a golden opportunity to shore up the UN's role in security issues as well as to put together a serious international effort to rein in North Korea.

Things have gotten worse.

Over the weekend, North Korea conducted what seems to be a successful test of a nuclear device that erases the failure of its previous attempt. Yesterday and today, North Korea has been launching several missiles -- both surface-to-air and surface-to-ship -- and is threatening to launch several more tomorrow. President Obama has vowed a swift and strong response to the test and launches, but it's not clear what good options exist at this point. Dan Blumenthal and Robert Kagan, in an op-ed in today's Washington Post outline the paucity of choices for the US:

the United States probably has little choice but to wait out Kim until the emergence of a leader who can make the strategic decision to abandon the nuclear weapons program. In the meantime, Washington should embark on a three-pronged approach. First, it should enhance its deterrent to protect itself, South Korea and Japan. That means, above all, bolstering American and allied missile defenses and deterrent capabilities. Unfortunately, it is precisely American missile defense capabilities that the Obama administration is now cutting -- despite the growing missile threat from North Korea and Iran. Second, it should strengthen multilateral efforts to stem North Korean proliferation, including more active efforts at interdiction and freezing bank accounts used to fund proliferation. Third, it should give up on the six-party talks. If it ever proves useful to talk to Pyongyang -- a big "if" -- let's do so directly.

Blumenthal and Kagan argue that neither China nor Russia has any serious interest in reining in North Korea, and thus efforts focused on mustering international will through the UN are useless.

While it's true that China does have an interest in a unpredictable and unfettered North Korea, that interest has its limits. China most certainly does not have an interest in a strengthened and proliferated Japan, which is a very serious possibility in the wake of the latest test. As Reuters reported over the weekend, Japan's ruling party is preparing to alter the constitution to allow for preemptive strikes under Japan's pacifistic doctrine. The LDP is also considering developing an indigenous early-warning satellite capability as Japan is currently dependent on US intelligence for warning of missile launches.

This would be a most unwelcome development for both China and Russia, which have long benefited from having a weakened and restrained Japan on their borders. And this is Obama's opening.

It's true that there aren't really any good options here. While it may have been feasible for the US to strike against the rocket launched two months ago, it is not possible for the US to use limited strikes against the nuclear program or the short-range missiles being launched now. The only option that exists while waiting out the passing of Kim Jong-Il is to get the UN to impose a complete and total sanctions regime on North Korea along the lines of that which was imposed on South Africa during the apartheid era. Doing so would require not just the acquiesence but the participation of both China and Russia, neither of which would participate for free.

But Obama has two things to offer: One is the prospect of the US operating through the multilateral channels of the UN, which Obama has clearly expressed a preference for doing when possible. Obama should make it clear to both Russia and China that North Korea is a test of their willingness to support the UN on issues of security, and that if they fail, the US will simply consider the UN to be obsolete on such issues in the future. If they want the UN to be a major player and to restrain the unilateralism of the US, then the UN has to be able to deal with such relatively easy cases as North Korea. Second, Obama should offer to use his good offices to prevent Japan from expanding its military doctrine and, down the road, from proliferating.

Both of these are issues about which Russia and China both care deeply; more deeply I believe than they care about keeping North Korea on the loose. If Obama plays his cards right, North Korea can be made to pay a meaningful and painful price for its wanton disregard of its obligations under international law.

But I doubt Obama will play his cards right. While Obama has shown a willingness to talk to any and all and to "reset" US relations, so far his talking has borne little if any fruit. Iran is just as intransigent, if not more so, than before, North Korea is, obviously, even more defiant, and Russia and China have responded to Obama's overtures with caution rather than warmth. So far, I've seen little evidence that Obama, his cabinet, or his policy aides have a strong coherent sense of policy to match their enthusiasm for talking.

Does It Matter What Pelosi Knew and When?

Last week, Speaker of the House Nancy Pelosi revealed that she had been briefed by the CIA about waterboarding in September 2002, although she argues that there was little she could have done in response. While Pelosi has been a vocal and vehement critic of the Bush administration and waterboarding, but claims she saw little way of challenging the use of waterboading, and other controversial interrogation tactics, but to win control of Congress for the Democratic Party. Meanwhile, in her column yesterday, Maureen Dowd asserted that "the question of what Pelosi knew or didn’t, or when she did or didn’t know, is irrelevant to how W. and Cheney broke the law and authorized torture."

This is an absolutely absurd argument, because it completely misses the point. The critical question to understanding the debate surrounding the use of waterboarding is to determine whether waterboarding qualifies under existing US and international law as torture. That's what the OLC memos were attempting to do: define the parameters of torture and determine on what side of the line waterboarding falls. Now those memos were often fast and loose with the law, and display some seriously shoddy methodologies; but, that does not inherently make them illegal.

If the OLC and the CIA believed that Congress knew about their legal determinations and the use of waterboading, it's perfectly reasonable for both offices to assume that, in fact, there aren't any seriously problems with their legal rationales or the use of the technique. As Justice Jackson explained in the famous Youngstown decision (the Steel Seizure case during the Korean War), when the executive branch takes an action that is not contested by Congress, which in turn signals tacit approval or acceptance, the tendency is to assume that the action is in fact legal and within the purview of presidential power. By failing to act in any way to protest, block, or outlaw the use of waterboarding, congressional leadership sent a message of acceptance.

But what of Pelosi's claim that there was nothing she could do other than try to take control of Congress? The Democrats have controlled Congress since the midterm elections of 2006 and has not tried to outlaw waterboarding (Senator Kennedy tried to attach an amendment banning waterboarding that was rejected, and Congress passed a bill forcing the CIA to adhere to the techniques approved in the US Army Field Manual which was vetoed and not repassed). And since January 2009, the Democrats have controlled the House, the Senate, and the presidency...guess how many bills banning waterboarding have been passed?

It does matter what Pelosi knew and when. It does matter what stance on these issues Congress takes. Congress is the enacter of the laws, and the laws on torture are frustratingly vague and open to different interpretations. If Congress doesn't trust the presidency to interpret those laws acceptably, it is incumbent on Congress to pass clarifying legislation. When the executive branch acts with the knowledge of Congress and without protest, it is only right to assume that the action is legal.

As I have said several times before, if Congress REALLY cares about this issue, it must pass legislation outlawing waterboarding or restricting the CIA to the Army Field Manual techniques immediately. If it doesn't, it is placing its trust in an executive order issued by President Obama, an order than can be undone by a subsequent order. And does Congress really trust Obama -- the very same Obama who has kept the policy of extraordinary rendition, slowed the withdrawal from Iraq, revived the use of military commissions, invoked the states secret privilege, etc. -- that much?

Iraq Journal, Part Four

[The third dispatch from my father about his experiences living and teaching in the Iraqi Kurdish city of Sulaimani is up on City Journal. You can read the first one here about his arrival in and first impressions of Suli; his second dispatch about the economic and political situation is here; one from my mother about a visit to Halabja can be found here.]

Jerry Weinberger
Iraq Journal, Part Three
A visit to Saddam’s chamber of horrors
14 May 2009

Editors’ note: This is the third in a series of dispatches from Kurdistan, where the author is spending four months consulting for the American University in Iraq–Sulaimani. The first and second installments are here and here.

The “Red Museum” in the city of Sulaimani, or Suli, isn’t red or much of a museum. It’s three hideous concrete buildings, erected in 1979 to house Saddam Hussein’s security apparatus as part of his campaign to subdue the Kurds after their quixotic 1975 uprising—quixotic because they trusted Iranian and American promises of support. Two of the buildings had windows, but they were shot out by Suli’s enraged citizens in a spontaneous uprising after the Gulf War in 1991. The third had no windows, because it was a place where no one should be able to see in or out. Sunlight wasn’t welcome in a chamber of torture and death.

Saddam’s campaign began as a giant feat of social engineering and ethnic gerrymandering. By 1979, the regime razed over 1,000 villages along the borders with Turkey and Iran and moved their inhabitants to grim resettlement camps. Arabs were moved into, and Kurds expelled from, strategic and disputed towns in the region, especially Kirkuk. But Saddam also spent lots of money on economic development to dampen Kurdish nationalist zeal.

Things changed dramatically with the revival of the Kurdish rebel forces, the advent of the Iran-Iraq war in 1980, and the formation of the Kurdistan National Front in Tehran in 1987. With Saddam now viewing the Kurds as an Iranian-backed fifth column, ethnic gerrymandering gave way to lethal repression, culminating in the genocidal chemical murder of the Anfal campaigns, which began with attacks around Suli in February 1988. When Iranian and Kurdish forces took the city of Halabja in March and threatened to take the nearby Darbandikan dam as well, Saddam’s regime shelled and gassed that city and its surrounding villages. By the end of the Anfal campaigns in August 1988, according to historian David McDowall, Saddam’s vast apparatus of murder had killed perhaps as many as 200,000 men, women, and children, produced hundreds of thousands of desperate refugees in Turkey and Iran, and left Kurdistan bereft of rural village life.

All of this is cold historical fact. There is nothing cold about the faces one sees on the walls of the Red Museum, where from 1979 until the uprising in 1991, Saddam tortured and killed in pursuit of the Kurdish rebels. Though Saddam usually buried his victims in mass graves as far as possible from where they lived, he had no scruples about compiling a photographic record of the killing. The first photo one sees freezes the blood. It looks like a picture in a college yearbook: a class of 13 young men, perhaps a debating or a Latin club, except for the anxiety evident in their eyes. The legend informs that it was taken in the prison in 1986 and that all but one of these young men were tortured and executed. Then photo after photo shows a bloody body crumpled at the foot of the stake to which the victim was tied to be shot. In one photo, two Baathist security men, grinning widely beneath their mustaches, hold up a headless corpse, their free hands raised in the victory salute. Next comes a picture of three women—child, mother, and grandmother—with faces frozen in fear just before their execution for suspected connection with rebels in the mountains. Numerous images record the last minutes in the lives of such women and children.

Then we see photos of the villages: buses being loaded with dispirited inhabitants headed toward industrial-style execution; smoldering ruins; piles of the dead killed by artillery and bombs. And throughout, Saddam’s soldiers filled with jubilant pride at their murder of the innocent and unarmed. The walls of the last room are covered with photos taken by Suli citizens during the Kurds’ short-lived 1991 uprising against Saddam. We see Baathist tanks on fire, a person shot out of a wheelchair lying dead in the street, wounded Baathists getting first aid from the Kurds, and a heartbreaking picture of a young boy holding a sign asking, WHERE IS MY SISTER?

From the photo rooms, the museum’s guide, Khalil Ali Mustafa, takes visitors to the rooms where the real business of the prison went on. They’re surprisingly small: two 20-by-12-foot cells, on either side of a short hall leading to two toilets, together housed up to 120 prisoners on an average day. From the cells, the prisoners could see, down another short hall, the “relaxation post,” where prisoners fresh from torture were tied to a wall and kicked, pummeled, and insulted by the guards who walked by.

There are also two torture rooms, each about 10 by 15 feet, and each with a beam, suspended from the ceiling, to which are attached several meat hooks. From these hooks, prisoners were hung by their wrists tied behind the back: the effect was to dislocate the shoulders and cause slow and agonizing suffocation while the rest of the body was beaten with wire whips and shocked by a generator attached to the nipples and genitals. The shock machine and the whips are on display. Between the two torture rooms is a smaller “listening room,” where the next victim would be held for hours to listen to the screams and contemplate what he would soon endure. Many cracked and talked just from that pressure. And children were among the tortured, to extort information from their horrified mothers. Down another hall is a long line of isolation cells, roughly four by five feet, where particularly important prisoners were kept for up to six months of repeated torture sessions. Wires once attached to small microphones run outside the cells.

The cells’ walls are scratched with the names of prisoners who tried to leave some vestige of their existence. In one is a small statue of a teacher, Ma Masta Ahmad, who after six months of confinement and torture was subjected to 24 hours of hanging by his wrists. To end this torment he told everything he knew—and then was shot. On the wall is etched his pathetic little calendar, which he kept to keep some contact with an outside world that he never saw again. Of the thousands of men, women, and children who came through the doors of the Red Museum, almost none came out alive. Those who did not perish were sent to Abu Ghraib in Baghdad to be hanged.

In the basement of the Red Museum, a dark and dank and stinking place, is a small room with pictures of the 1988 chemical attack on Halabja. Many in the West are familiar with the photo of a man lying prone on the threshold of a house, on top of a small child whom he tried to shield from the gas. It’s heartbreaking, to be sure, but it’s almost abstract and thus suitable for newspaper display. I doubt that many of the photos in the Red Museum have been seen in the West, because they’re so gruesome as to turn the stomach of anyone who sees them. The one I found most disturbing was a close-up of a little girl, maybe six or seven years old. Her ashen white face is surrounded by brownish hair and her mouth is frozen in a ghoulish grin. Her eyes are open, but are so crossed as to make her look like a little fiend from hell. The gas not only killed her; it turned her corpse into what looked like a monster.

A few weeks later, I went to Halabja with a young woman and her husband. Both were seven when the city was gassed. We first stopped at the memorial building on the edge of the city. The memorial was ransacked in 2006 and is still a mess. Angry Halabja citizens attacked it in protest against government indifference. They had a point: Halabja is drab and sad and has few paved streets. It’s a monument to government neglect as well as to the misery of the Anfal campaign.

In the city center is an old graveyard surrounded by a fence, on which a sign reads: BAATH NOT PERMITTED TO ENTER. Amid the old single graves are three new mass graves in which about 3,000 victims of the attack are interred. Beyond them is an expanse of small headstones, each representing an entire family. The young woman accompanying me said that she was lucky that her father, a peshmerga—a rebel fighter, one of “those who confront death”—had told her and her mother to leave the city because an attack was sure to come. They fled to one of the vast, squalid refugee camps in Iran and after six months made their way back to Suli. Her father was gassed and eventually died of the effects. Her brother was arrested, tortured, and executed. Her husband, too, remembers clinging to his mother’s dress as they fled into the mountains to escape the gas. At one point they had to choose between paths to two separate villages. Both villages were bombed by gas, but the bomb hitting the village they chose turned out to be a dud. It’s sheer luck that he’s alive. The young woman’s brother did not live to see this horror. In 1981, she told me, at the age of 14, he was murdered by his best friend, also 14 but even at that age a Baathist agent.

The mountains above Halabja are dotted with empty villages, monuments, and mass graves, some barely large enough for a few families, one the size of a football field. Many small mass graves lie near two natural springs whose water was poisoned by the gas, instantly killing those who drank it. On the day I visited, throngs of picnickers were enjoying their Friday in the country, barbecuing, playing music, and dancing. It was hard to believe that in these now serene mountains, old men, women, and children were once mowed down by helicopter gunships and chemical bombs.

In politics, the legacy of suffering has made the Kurds hard. They trust no one, look out for themselves, and engage in double-dealing, often to the chagrin of their friends in America and elsewhere. But apart from politics, Kurdish civil society is healing, and the Kurds are getting over the experience of being victims. In fact, one problem in Suli, notes Judith Bass, a Johns Hopkins professor of public health working here with the Heartland Alliance’s Victims of Torture Project (which provides mental health services), is that the victims, especially disabled and shell-shocked peshmerga, feel that they’re being forgotten as the Kurds get on with making the most of their freedom. Few citizens of Suli visit the Red Museum. When they go to the silent graves of their murdered beloved, they go to picnic and dance—to celebrate life and freedom.

Jerry Weinberger is a professor of political science at Michigan State University, director of the LeFrak Forum at Michigan State, and an adjunct fellow at the Hudson Institute. His most recent book is Benjamin Franklin Unmasked: On the Unity of His Moral, Religious, and Political Thought. He thanks Kamal Osman Kaķi, who served as translator at the Red Museum.

Maybe There's Something To This al Qaeda Thing After All

This past week, with relatively little fanfare or notice, President Obama made what should have been a startling revelation. In stark opposition to his campaign promises and actions in the early days of his presidency, officials in the Obama administration announced that the president is likely to revive the use of military tribunals to prosecute suspected members of al Qaeda and other Guantanamo detainees. According to the New York Times:

Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies.

...

It is not clear how many of the remaining 241 detainees are likely to be prosecuted. The four-month suspension of military commission proceedings Mr. Obama ordered is to end May 20. As a result, administration officials are considering whether to ask military judges at Guantánamo for an additional delay. In making such a request, administration lawyers might outline their proposed changes.

In recent days, senior administration officials have hinted publicly that commissions were far from dead, yet offered no specifics and their comments drew little attention. In Congressional testimony on Thursday, Defense Secretary Robert M. Gates said, “The commissions are still very much on the table.”

In a news conference this week, Attorney General Eric H. Holder Jr. emphasized that if the administration did use military commissions, the rules must give detainees “a maximum amount of due process.”

But, speaking of detainees whom American officials have accused of involvement in major terrorist plots, Mr. Holder added, “It may be difficult for some of those high-value detainees to be tried in a normal federal court.”

As I see it, there are three possible explanations for this. First, that Obama is the same kind of rights-trashing, law-disrespecting monster that Bush was. Second, that Obama is simply hoarding presidential power now that he is president and is reluctant to give up any power that he has a right to exercise. Third, that al Qaeda represents a real threat to the United States, which Obama, now that he has unfettered access to US intelligence agencies, has come to realize and that giving civilian legal protections to the most dangerous detainees does, in fact (as Bush claimed it did) threaten the national security of the country.

I think we can discard the first possibility without much discussion. The second probably plays some part in this, but any decision to revive military tribunals is most likely a result of the third. Al Qaeda is a serious threat to this country. How much of a threat is certainly up for debate, but when we debate the question we must realize the limits to our knowledge. We do not know how many plots have been foiled, how many al Qaeda cells have been infiltrated, how much the government knows, and how dangerous al Qaeda still is. We can speculate and debate these questions, but we simply cannot know the answers in the same way that our governing officials can.

Since coming to office, Obama has maintained the policy of extraordinary rendition and is now considering the military tribunals which he once voted against as a senator. Perhaps this tells us he's simply a power-coveting politican; but it also might tell us that the threat to our country is a serious one that requires extraordinary measures to combat.

Restoring the Balance: War Powers in an Age of Terror

My book, forthcoming from Praeger Security International, is now up on Amazon. Check it out here: Restoring the Balance: War Powers in an Age of Terror.

Iraq Journal, Part Three

[City Journal has published the second dispatch from my father on living and teaching in the Iraqi Kurdish city of Sulaimani. You can read his first dispatch here, and one from my mother on visiting Halabja here.]

Jerry Weinberger
Iraq Journal, Part Two
Socialism on top, Milton Friedman on the bottom
22 April 2009

Editors’ note: This is the second in a series of dispatches from Kurdistan, where the author is spending four months consulting for the American University in Iraq–Sulaimani. Read the first installment here.

I was born with the olfactory powers of a bloodhound, which is a blessing at fine restaurants but not in the city of Sulaimani, or Suli, in Iraqi Kurdistan. On first entering my apartment here, I knew that my palate, tongue, and nose were under assault from petroleum molecules—but I didn’t know why, since there’s no oil drilling nearby. It turns out that every house, business, and hotel has an ample, and often leaky, supply of diesel fuel in the basement. That’s because there’s hardly a house or business in Suli that doesn’t have a diesel-powered generator just outside the door. And that’s because electricity is available from the main grid only six or eight hours per day.

Water, too, is intermittent, which explains why for every private generator, there’s also a private water tank. The water is used for plants and for washing cars, clothes, and people, but not much for human consumption. Few people drink it, and it’s not wise to open your mouth in the shower or brush your teeth with water from the tap. A visit to the humblest and cheapest restaurant begins with a sealed, square plastic container of water plopped down in front of you, usually free of charge. In the bazaar are pyramids of sheep’s heads; outside the bazaar, you can’t walk a block without encountering giant pyramids of 20-liter bottles of potable water.

The reason for the city’s strange amalgam of official grids and unofficial networks is that Sulaimani Province is governed by the Patriotic Union of Kurdistan (PUK), a proud member of the Socialist International. The PUK owns half of the city and employs half of its people. American readers won’t be surprised that a sprawling, one-party socialist government is not a paragon of efficiency, transparency, and responsiveness to public needs—especially in a place like Kurdistan. After Saddam’s genocidal Anfal Campaign against Kurdish rebels in 1988, and the establishment of the no-fly zone after the Gulf War in 1991, the two Iraqi Kurdish political parties—the PUK, led by Jalal Talabani, and the Kurdish Democratic Party, led by Masoud Barzani—fought a nasty civil war. Adding to the cost of this internal chaos, which lasted from 1994 to 1998, were the sanctions that strangled Iraq, and particularly Suli, until the fall of Saddam in 2003. So the Kurds couldn’t buckle down to rebuilding their ravaged land until just six years ago.

Fortunately, the two parties have patched up their differences. The KDP (whose stronghold is in the northern province of Erbil) and the PUK in Suli have brought Kurdistan to a vague but real enough status as a quasi-independent region within a federal Iraq. They’ve even become somewhat embarrassed about their weakness on civil liberties, especially in more free-thinking and liberal Suli—where independent women’s groups have taken on the hot-button issue of violence against women, and where a high school student recently organized a seminar on child abuse. The two parties have, in short, provided a level of personal security, freedom, and religious toleration unknown in the rest of post-Baathist Iraq. True, it’s under the socialist PUK that the electricity runs only six hours per day and the water intermittently. Yet this administrative inefficiency hasn’t resulted in economic paralysis, because while a socialist government rules from above in Suli, the principles of Milton Friedman flourish underneath.

The Kurds have used their share of Iraq’s oil money to lure massive foreign investments. But at least in Suli, they haven’t succumbed to the Middle East’s stultifying economic and psychological dependence on that money. I think that’s because with so much inefficiency at the top, the regular citizens of Suli fend for themselves. Hence the spontaneous and private systems that electrify and water the city. Hence the private garbage collectors who walk the city collecting trash (though a lot of it gets deposited in the vacant lot next to my building) and the private propane sellers who crisscross the city to help people cook.

The city also hums with small-scale building, both residential and commercial, and shopping malls and start-up businesses—for instance, the Melody Café, a sleek espresso and gelato establishment in my building. Recently, two musicians, a Kurdish violinist and a Russian pianist, played classical music at the Melody to the beaming delight of the packed Kurdish house. The central street running to the sprawling bazaar is a free-enterprise zone—established by the enlightened free-market liberal Barham Salih, deputy secretary-general of the PUK and deputy prime minister of Iraq—with few public buildings and no elaborate rules governing how new businesses may start. Few rules, in fact, govern the building of anything in the city. Half the dust in Suli gets blown in from the south, but the other half is produced by all the digging and grinding and sanding of ubiquitous construction.

The result of all this vigorous private enterprise is that Kurdistan, the poorest part of Iraq before the war, now enjoys the highest standard of living in the country. If the government here worked better, in fact, I think the citizens of Suli would be slower to develop their nascent individualism, capitalism, and vibrant civic culture. Few of them probably realize that they are slowly acquiring the habits of entrepreneurial capitalism: do for oneself; take risks and strive to get richer; don’t dwell on the past; and when things go badly—and do they ever know what “badly” can mean—pick yourself up, don’t worry about honor, and get on with life.

The Milton Friedman bottom of Suli is causing problems for the socialist top. Recent polls show that almost half of the electorate is tired of government inefficiency and the slow pace of infrastructure construction, and the Kurdistan Islamic Union is licking its lips in anticipation of the next elections. It’s a joke when the disgruntled citizens of Bologna, Italy, vote in protest for Communists. It won’t be a joke if the Kurds turn in protest to the KIU and other Islamic parties.

The PUK knows this, and some of its members also know that it can’t rest on its laurels for having fought Saddam. There are rumblings in the party’s liberal and reformist elements. It’s my hope that in the long run, liberal, free-market reformers will come out on top. And they had better, because Kurdistan is caught between a Turkish rock and a Baghdadi hard place. It’ll take cool heads—who understand that Kurdish independence is fragile and that Iraqi oil is too valuable a resource to be lost pursuing nationalist dreams—to navigate the shoals of a workable Iraqi federalism.

Jerry Weinberger is a professor of political science at Michigan State University, director of the LeFrak Forum at Michigan State, and an adjunct fellow at the Hudson Institute. His most recent book is Benjamin Franklin Unmasked: On the Unity of His Moral, Religious, and Political Thought.

Iraq Journal, Part Two

[This is the second in a series of posts about goings-on in Iraq. In the first, my father who is teaching at the American University in Iraq - Sulaimani wrote about getting to the Kurdish north. In this post, my mother, who is visiting my father in Iraq for a few weeks, writes about a trip to Halabja.]

Another fascinating and very stimulating weekend. (And did I mention that the weekends are Friday (the holy day) and Saturday.) Both Friday and Saturday we were taken in to the mountains surrounding Suli, first in the east and then in the west. The Kurds are fond of saying that "the mountains are our only friends" and that "Saddam had tanks but we had the mountains." The mountains surrounding Suli are different than any I've seen but Jerry compares them to the Grand Tetons. They rise sharply up from the valley without the surrounding foothills that are more typical in the US. And they vary dramatically in type from bare and rocky, to sandy with desert type plants, to covered with lush green

On Friday, a staff member at AUIS and her husband took us to Halabja, the town in the eastern mountains very close to the Iranian border where they were born and raised. Mention Halabja to any Kurd and they immediately know what it means and what you are going to see. Halabja is to the Kurds what the Holocaust is to Jews. It's the town that Saddam destroyed by chemical bombs, killing 5,000 men, women, and children. Visiting Halabja with Kurds, who are now in their 20s but were children of around 7 at the time of the attack, was a moving experience. Both had lost many friends and family members as well as having their homes destroyed; both had parents blinded for several weeks by the chemicals. Sham had never before visited the memorial because she feared the photos of those burned or killed would be too upsetting. Her husband recounted fleeing in fear, clinging to his mother's skirt. He took us to the path in the mountains on which, if they had chosen it, they would have died along with countless others who are now buried in mass graves that dot the hillside. He showed us the path they took instead to a village which though also hit by a chemical bomb, luckily, did not explode. Standing in the mountains, surrounded by wildflowers, and seeing families picnic at the cemeteries and mass graves it's difficult to imagine the horror which happened only 20 years ago.

Saturday, Dildar, a woman I was introduced to, took me to visit the Women's Commission, an organization which collects statistics, educates, and advocates on behalf of women. Although the women of Suli are relatively modern, women in the small villages still live lives of second class citizens. Honor killings still occur. Female circumcision is common. And few women are allowed to own property, receive their husband's pensions if they are widowed, or to withdraw money from bank accounts. Even in Suli, girls do not have the same freedoms as boys. The girls at the high school where I have been volunteering complain they are not allowed to go out with friends, they certainly can not have boys visit their homes, and many families prize boy children more than girls.

After an elaborate Kurdish lunch at the home of a Kurdish Member of Parliament with enough food to feed 30 people, Dildar also took Jerry and me for a drive in to the mountains (with a driver and uniformed guard carrying an M16 rifle!) She showed us the village and huts where she and her husband had been in hiding with other members of the pesh murga during the fighting with Saddam. She related stories of horror: bombing of the villages, climbing the mountains under sniper fire, having 3 miscarriages from effects of chemical weapons.

Again this weekend, Jerry and I were in awe of the stories of loss, heroism, and personal bravery that we heard. When we become frustrated with the construction debris, the dirtiness, and the inefficiencies of basic services, we try to remember how far Kurdistan has come in the brief time they have been at peace. We also once again were impressed by the warmth and hospitality of the Kurdish people. Sham's family in Halabja prepared a huge feast for us, family members from all over the city came to meet us and show us their children, and then they sent us home with a big bag of home-made bread. Shopkeepers, cab drivers, and others tell us over and over how much they love America. They are anxious that their stories are heard in the West.

Legalizing Torture? Part II: The 30 May 2005 Bradbury Memo

[This is the secondin a series of posts analyzing the recently released Office of Legal Counsel memos discussing the legality of proposed coercive interrogation methods to be used against suspected members of al Qaeda. The second memo to be considered is the May 30, 2005 memo from Steven Bradbury to John Rizzo, the Senior Deputy General Counsel of the CIA, entitled Re: Application of United States Obligations Under Article 16 of the Convention Against Torture to Certain Techniques that May Be Used in the Interrogiation of High Value al Qaeda Detainees. Part One of the memo is here; Part Two is here.]

I wrote in Part One of this series that it seems unlikely that there are grounds for criminal prosecutions in the August 1, 2002 memo. However, I'm not so sure that can be said for the May 30, 2005 memo. In this one, Steven Bradbury was advising the CIA on the obligations of the US under the Convention Against Torture and specifically how those obligations impacted the use of certain coercive interrogation techniques. Thus this memo is very detailed about the use of these techniques, as it seeks to determine whether they fall afoul of international law.

There's a lot of stuff in this memo...but I want to focus on the question of waterboarding, as that seems to be the most controversial. Page 15 of the memo clearly spells out the US policies governing the use of the waterboard:

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.

However, on page 37, we read this shocking revelation:

The CIA used the waterboard "at least 83 times during August 2002" in the interrogation of Zubaydah, IG Report at 90, and 183 times during March 2003 in the interrogation of KSM (Khalid Sheikh Mohammed).

If you go back and 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.

The general standard that Bradbury applies throughout this memo is whether the action in question "shocks the conscience" and he eventually concludes, on p. 38, that "the CIA interrogation techniques, either their careful screening procedures and medical monitoring, do not 'shock the conscience.'" Back on p. 37, he argued that "the CIA usses enhanced techniques only to the extent reasonably believed necessary to obtain the information and takes great care to avoid inflicting severe pain or suffering or any lasting or unnecessary harm. In short, the CIA's program is designed to subject detainees to no more duress than is justified by the Government's interest in protecting the United States from further terrorist attacks."

Perhaps. But then what explains why KSM was waterboard 123 times beyond the established limit? That certainly doesn't square with the previously made claim that KSM only held out for 35 seconds during his waterboarding. So, even if the use of waterboarding is acceptable under US law, what happens when those laws themselves are broken? If waterboarding does, as Bybee noted in the 2002 memo, likely cause a fear of imminent death, using such a technique 200% more than is allowable under the law would certainly seem to shock the conscience. It is odd indeed that Bradbury mentions the number of times both detainees were waterboarded but doesn't account for the actions in any way.

This memo does seem to argue for criminal behavior, most likely on the part of the interrogators, and perhaps the higher-ups who knew of the actions and did nothing. This is still not an argument that the techniques were, if used according to the rules, torture or that the US was wrong to use these techniques. It certainly does point out the dangers in walking the fine line between coercive interrogation and torture. Given the fineness of the line and the paramount importance of legal definitions in this instance, if waterboarding was to be used it have been used within whatever legal framework was created to justify and bound its legality. When that line is crossed, the action moves into torture.

[I'll discuss the rest of this memo as well as the others later.]

What the War in Afghanistan Is Really Like

Today's New York Times has one of the most incredible stories I've ever read. It is an account of the ambush of a Taliban column by a patrol from the second platoon of Company B, First Battalion, 26th Infantry of the US Army. It is the most detailed account of war I've seen in a newspaper, and a testament to the bravery, skill, and fortitude of the men and women who volunteer to serve our nation in the armed forces, risking their lives and being asked to kill on behalf of our security as well as the security of the poor people of Afghanistan. An excerpt:

The soldiers waited. The rules of the ambush were long ago drilled into them: no one can move, and no one can fire until the patrol leader gives the order. Then everyone must fire at once.

The third Taliban fighter in the column switched on a flashlight, the soldiers said, and quickly switched it off. About 50 yards separated the two sides, but Lieutenant Smith did not want to start shooting too soon, he said, “because if too many lived then we’d be up there fighting them all night.”

He let the Taliban column continue on. The soldiers trained their weapons’ infrared lasers, which are visible only with night-vision equipment, on the fighters as they drew closer. The lasers mark the path a bullet will fly.

The lead fighter had almost reached the platoon when Pvt. First Class Troy Pacini-Harvey, 19, his laser trained on the lead man’s forehead, moved his rifle’s selector lever from safe to semi-automatic. It made a barely audible click. The Taliban fighter froze. He was six feet away.

Lieutenant Smith was new to the platoon. This was his fourth patrol. He was in a situation that every infantry lieutenant trains for, but almost no infantry lieutenant ever sees. “Fire,” he said, softly into the radio. “Fire. Fire. Fire.”

The platoon’s frontage exploded with noise and flashes of light as soldiers fired. Bullets struck all of the lead Taliban fighters, the soldiers said. The first Afghans fell where they were hit, not managing to fire a single shot.

Bravo to our men and women in uniform.

Legalizing Torture? Part I: The 2002 Bybee Memo

[This is the first in a series of posts analyzing the recently released Office of Legal Counsel memos discussing the legality of proposed coercive interrogation methods to be used against suspected members of al Qaeda. The first memo to be considered is the August 1, 2002 memo from Jay Bybee to John Rizzo, the acting General Counsel of the CIA, entitled Interrogation of al Qaeda Operative.]

When the CIA found itself holding Abu Zubaydah, it believed that it was holding "one of the highest ranking members of the al Qaeda organization." According to the memo, "the interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United Stares or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas." To find out what Zubaydah knew, the CIA requested to expand the repertoire of interrogation techniques available to it. Specifically, the CIA asked to be able to use the following 10 techniques: "(l) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard." The report goes on to specifically detail how each technique would be used. For example, here's the description of "walling":

For walling, a flexible false wall will be constructed. The individual is placed with his heels touching the wall. The interrogator pulls the individual forward and then quickly and firmly pushes the individual into the wall. It is the individual's shoulder blades that hit the wall. During this motion, the head and neck are supported with a rolled hood or towel that provides a c-collar effect to help prevent whiplash. To further reduce the probability of injury, the individual is allowed to rebound from the flexible wall. You have orally informed us that the false wall is in part constructed to create a loud sound when the individual hits it, which will further shock or surprise the individual. In part, the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action.

After describing all of the requested techniques, the memo then launches into a discussion of the effect of these techniques on individuals subjected to them as part of the military's SERE (Survival, Evasion, Resistance, and Escape) training. "Of the 26,829 students trained from 1992 through 2001 in the Air Force SERE training, 4.3 percent of those students had contact with psychology services. Of those 4.3 percent, only 3.2 percent were pulled from the program for psychological reasons. Thus, out of the students trained overall, only 0.14 percent were pulled from the program for psychological reasons." These numbers reflect people who were subjected to all of the requested techniques except for insects in the confinement box and the waterboard. Regarding the waterboard, the memo continues,

your on-site psychologists, who have extensive experience with the use of the waterboard in Navy training, have not encountered any significant long-term mental health consequences from its use. Your on-site psychologists have also indicated that JPRA has likewise not reported any significant long-term mental health consequences from the use of the waterboard. You have informed us that other services ceased use of the waterboard because it was so successful as an interrogation technique, but not because of any concerns over any harm, physical or mental, caused by it. It was almost 100 percent effective in producing cooperation among the trainees. [REDACTED] also indicated that he had observed the use of the waterboard in Navy training some ten to twelve times. Each time it resulted in cooperation but it did not result in any physical harm to the student.

In short, the memo concludes that based on the experience of those undergoing these techniques in SERE, there is no indication that these measures will cause any long-term mental or physical harm.

Bybee then turns to US law on torture: Section 2340A of the US code, which makes it illegal for any US citizen to engage in torture outside of the US. Section 2340(1) then defines torture thusly:

"torture" means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.

In turn, Section 2340(2) reads:

"severe mental pain or suffering" means the prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality

Thus, Bybee concludes, violating the Section 2340A "requires a showing that: (1) the torture occurred outside the United States; (2) the defendant acted under the color of law; (3) the victim was within the defendant's custody or control; (4) the defendant specifically intended to inflict severe pain or suffering; and (5) that the acted inflicted severe pain or suffering." The memo then proceeds to argue that none of the techniques in question causes "severe pain or suffering." Briefly, the OLC has concluded elsewhere that "'severe pain' within the meaning of Section 2340 is pain that is difficult for the individual to endure and is of an intensity akin to the pain accompanying serious physical injury." The memo also concludes that none of the techniques is likely to cause severe mental pain or suffering either, with two possible exceptions. Given Zubaydah's professed fear of insects (which is the rationale for putting insects in the confinement box with him), it could cause him severe mental pain or suffering if Zubaydah's believes that the insect could sting him and cause injury or death. Thus, the interrogators must either tell Zubaydah that the insect's sting (the CIA says that while it intends to tell Zubaydah that the insect is a stinging one, it intends to put a non-stinging insect in the box) cannot produce severe pain or death or should not tell him that the insect can sting at all. It also notes that "although the waterboard constitutes a tbreat of imminent death, prolonged mental harm must nonetheless result to violate the statutory prohibition on infliction of severe mental pain or suffering," which is turn defined as "mental harm lasting months or years."

Bybee does note that "under certain circumstances - for example, rapid escalation in the use of these techniques culminating in the waterboard (which we acknowledge constitutes a threat of imminent death) accompanied by verbal, or other suggestions that physical violence will follow - might cause a reasonable person to believe that they are faced with such a threat." Thus, the OLC is uncertain whether such a course would constitute a violation of the laws prohibiting torture. However, even if such circumstances occurred, to be considered torture and thus a violation of Section 2340A, the act must be committed with a specific intent to cause severe physcial or mental harm and must in fact cause severe physical or mental harm. If the interrogators do not have specific intent, there can be no torture.

Now, on to the analysis. First, this is the first chronologically of the memos...many of the most controversial techniques -- such as dousing a subject with cold water and forced nudity -- are not discussed in here, and won't be until 2005. Second, this is a serious attempt to define the boundaries of the law. While it may seem like legalistic parsing or hair splitting, let's not forget that there is, in fact, a serious threat to the US. That does not in and of itself justify torture. It does, however, justify efforts to find the strongest techniques available to interrogate suspected terrorists that are legal under US law.

That said, it seems to me that there are several problems in the legal analysis. First, I'm not so sure how accurately one can draw comparisons between those subjected to these techniques in a SERE program to a detainee's experience. The SERE people know, no matter how brutal the things being done to them, that their tormentors are their compatriots and that there are limits to what will, in fact, be done. The suspected terrorist has no such reassurances. So, while the physical effects may be the same, it seems as if the mental effects would be much worse for the detainee. [Please note that I am not in any way miniziming the SERE experience...it just doesn't seem to be really comparable in a legal sense].

Second, the requirement of specific intent is troubling. If the intent of the interrogator conducting a waterboarding session is to cause an imminent fear of death, which the OLC admits waterboarding does, can the only thing keeping this from being torture that waterboarding doesn't leave any lasting mental pain? Christopher Hitchens notes that, after voluntarily undergoing waterboarding, he suffers from panic attacks and night terrors. That may not count as "severe" mental pain and suffering, but it's getting close. And if Zubaydah does have, as the CIA believes he does, a fear on insects, confining him in a box with an insect that he may believe will sting him also seems to be pushing the line of causing severe mental pain and suffering.

As I mentioned, this memo is perhaps the most reasonable of the four that have been released, and it still seems to push the boundaries, particularly with waterboarding. However, the real problems at this stage seem to lie in the legal defintion, not in the OLC's interpretation of that wording. The law does say that there must be specific intent to cause severe pain and suffering and the law does not define in any clear way what constitutes severe mental and physical pain and suffering. It is not surprising that the administration pushed the law as far as it could in its efforts to defend the nation.

It seems difficult to conclue, I think, at this point over this memo that there is grounds for prosecution of the purveyors of this legal advice. There is a serious attempt to stay within the bounds of the law, while defining the law as liberally as possible. That may be wrong, but it doesn't seem to be criminal. As I have said before, I put more blame at this point on Congress, which never saw fit to more tightly and clearly define the rules with which it sought to limit the power of the president. As Kenneth Anderson points out in a New York Times debate on the memos, many members of Congress clearly knew what was going on:

as the Washington Post reported in December, 2007:

Yet long before “waterboarding” entered the public discourse, the C.I.A. gave key legislative overseers about 30 private briefings, some of which included descriptions of that technique and other harsh interrogation methods, according to interviews with multiple U.S. officials with firsthand knowledge.

With one known exception, no formal objections were raised by the lawmakers briefed about the harsh methods during the two years in which waterboarding was employed, from 2002 to 2003, said Democrats and Republicans with direct knowledge of the matter.

Most prominent among those briefed on waterboarding was Nancy Pelosi. According to the Post’s interviews, members of the Congressional oversight committees understood that they had to weigh the limits of inhumane treatment of people known to have Al Qaeda connections against the threat of new attacks. They believed that these techniques struck the right balance in the circumstances. Yet I haven’t heard of any serious call for prosecuting Speaker Pelosi or any of her colleagues for complicity in torture.

Anderson goes on to note something I have called attention to several times; Congress still has not made waterboarding illegal or passed legislation specifically defining it as torture. If Congress really wants to ensure that waterboarding or other techniques are not used, it must pass a law making such actions illegal. The fact that it doesn't hints at two things: One, that there is in fact a broader consensus on the need for such programs than people will admit publicly, and that; Two, Congress really is the feckless body, unwilling to take responsibility for the defense of the state, that we think it is.

However, to foreshadow some of the subsequent memos, we see that first, the CIA doesn't use waterboarding in the same way it is used in the SERE program, further throwing into doubt the legal reasoning of the first Bybee memo. Second, we see introduced much more controversial techniques, such as forced nudity, dietary/caloric restriction, and dousing with cold water. We also see a recognition that many of these techniques are considered torture by the United States when used by other countries.

The New Torture Memos

Today, the Department of Justice released several memos from the Office of Legal Counsel on the use of and legality of coercive interrogation techniques and how they are to be interpreted given US laws prohibiting torture. The memos can be found here. All of the memos are, essentially, parsing the coercive techniques to determine whether the violate US domestic laws against torture as well as US obligations under the Convention Against Torture, which the US has signed and ratified.

I haven't yet read the memos, so I can't comment in detail on the legal analyses. But, they appear to be serious attempts to define what is and what is not torture. Critics aside, this is an important distinction. Not every coercive interrogation technique is torture, so to draw the line we need to be able to define what constitutes torture. And it's not as obvious at it might seem. For example, in Ireland v UK (1978) the European Court of Human Rights ruled that several coercive interrogation techniques, including wall standing, hooding, subjectin to noise, sleep deprivatin, deprivation of food and drink -- several of which are at issue in the OLC memos -- did not constitute torture, although they were "cruel, inhuman, and degrading." Thus, the need to determine a standard of what is coercive, even if cruel, and what is torture. That is what these memos appear to try to do. That is not to say that they do the task well, or even honestly. I can't say yet. But the task itself is a necessary one.

President Obama also announced today that he would not bring charges against CIA interrogators who relied on the OLC memos for guidance as to what policies could be legally used. According to Attorney General Eric Holder, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." That does seem to leave the door open to prosecuting those responsible for the legal opinions. But that remains to be seen.

Once I've read the memos, I'll comment on them.

Amnesty in Zimbabwe

The New York Times is reporting that top officials of Robert Mugabe's ZANU-PF party in Zimbabwe, fearing what will happen now that the opposition party is in the government, are kidnapping and torturing members of the opposition party in an effort to extract promises of amnesty from them. According to the Times:

Didymus Mutasa, who served as Mr. Mugabe’s minister for national security until the power-sharing deal went into effect, acknowledged that some senior officials in his party might be worried about prosecution.

Had the party floated the idea of an amnesty? he was asked. “Perhaps,” he said.

Were abductions used to gain leverage for amnesty? “There could have been something like that,” he said, “but how am I to know?”

The crimes that have been committed under Mugabe's government are unquestionably horrible, and the victims most certainly deserve justice. The Times provides a short accounting:

The crimes committed to entrench Mr. Mugabe’s rule date back to the 1980s, when thousands of civilians from Zimbabwe’s Ndebele minority in Matabeleland were killed by the notorious North Korean-trained Fifth Army brigade, according to historians.

Among the Ndebele, the tears of the living must be shed to release the souls of the dead. But the Fifth Brigade insisted that there be no mourning for those they killed, and in some cases shot family members because they wept, according to “Breaking the Silence,” a 1997 investigation based on the testimonies of more than 1,000 witnesses.

Other political crimes include widespread attacks on the opposition in 2000, 2002 and 2005, and most gruesomely last year. Beyond that, a vast 2005 slum clearance effort known as Operation Murambatsvina, or Get Rid of the Filth, drove 700,000 people in opposition bastions from their homes.

Last year, close to 200 people were killed, mostly before the June presidential runoff between Mr. Mugabe and the opposition leader, Morgan Tsvangirai, and thousands were tortured in state-sponsored attacks, but so far no one has been prosecuted, according to a State Department human rights report released in February.

Mr. Mugabe’s party fears that even more damning evidence will be unearthed.

This doesn't even include the horrors that Mugabe has unleashed on his people through his misrule: driving the country into bankruptcy, destroying Zimbabwe's agricultural capacity, collapsing the state's educational and health care systems, and so on.

So, justice is clearly due. But what kind of justice? Setting aside the coercion, should Mugabe and his cronies be given amnesty for their actions? Is getting the ZANU-PF out of power more important than punishing its leaders and members for their actions?

That decision rests, as it shoud, with the peopel of Zimbabwe. Different countries have transitioned through their difficult pasts in different ways. South Africa effectively granted amnesty through its Truth and Reconciliation Committee; Peru just recently tried and convicted its former president for crimes committed during its struggle against Marxist rebels. There are powerful arguments supporting each path.

Still, I would hope to see Zimbabwe's Movement for Democratic Change do what is best for the country, which would be to get Mugabe and the ZANU-PF out of power. Hopefully, the MDC can resist the campaign of coercion being unleashed against it. In its place, the MDC should offer a broad amnesty, up to and including Robert Mugabe himself, in exchange for a full transfer of power to the MDC, which in all likelihood is the rightful ruling party. The amnesty should ensure that no one guilty of the crimes in question can hold political office in Zimbabwe again and that, as in South Africa, a full accounting of crimes is necessary to be granted amnesty. If such a deal can be reached, it should be taken. Anything less would be a true travesty of justice.

Energy and the Defense Department

Kevin Billings, an alumnus of Puget Sound and currently the Acting Assistant Secretary of the Air Force for Installations, Environment & Logistics was interviewed for a new blog focusing on issues of energy and the Department of Defense. It's an interesting blog for anyone who cares about issues of future energy, and specifically as they interact with issues of national security. Here's the interview:

April 2009 Update from Air Force's Energy Chief

Kevin Billings shared a few minutes today, responding to three status questions I had queued up for him on: 1) the synth fuel initiative, 2) adoption of energy metrics, and 3) the Air Force's take on smart and micro grids. Here, without much embellishment, are his updates:

1) Synthetic Fuels - Certification of USAF's current inventory to run on a 50/50 natural gas-derived fuel/J-P8 blend is on or ahead of schedule. Other details include:

• More focus coming up on bio fuels
• Will down select to 1 or 2 bio fuel blends and begin new engine cert process for them

In short, USAF will be ready for its 2016 goal of using 50% alternative fuels, and is thereby making a market for these fuels. But the big question is: will industry be ready to provide new fuels in sufficient quantities?

2) Energy Metrics - Alas, Billings noted that the Energy Efficiency KPP would have been used extensively in Future/Next Gen Long Range Bomber, which Secretary Gates just recommended for deletion. But he said that USAF's acquisition arm is taking the FBCF and Energy Efficiency KPP very seriously. (I should be able to report more on that in the future.)

3) Air Force Smart / Micro Grids - According to Billings, while still in embryonic stages, new grid technologies and processes are at the forefront of USAF thinking. The primary driver is mitigation of the risk posed by the brittle national grid. The task re the smart grid is to work with utility providers to coordinate and collaborate on bringing smart sensors and other energy management capabilities on base to capture savings. The micro grid concept applies when thinking about bases as power islands, being able to run their own critical mission systems during local or regional blackouts. One of the lead agencies he referenced is the civil engineering team, AFCESA, at Tyndall AFB in Florida.

A detail I especially liked was Billings referring to the towns that host USAF bases as "community partners." He's interested in seeing if, should local blackouts occur, USAF bases could provide surplus power for critical community services. Wouldn't that be something ... something great.

What is China (and Russia) Doing?

I wrote a few days ago about how the UN's response to the North Korean launch of a missile/satellite would be vital in determining how the US deals with the UN and multilateralism more generally in the future. Specifically, I wrote that:

If China, Russia, and the other members of the UN truly wish to see the US restrain itself, follow international law, and respect the UN, the Security Council, and other international institutions, those institutions must demonstrate the ability to deal with security issues such as North Korea, a relatively easy case given the coincidence of interests between the major players (no one, especially not China, wants to see a nuclear DPRK).

Well, China and Russia don't seem to be listening to me. The UN Security Council met yesterday, but came to no agreement about what to do regarding North Korea's nuclear and missile programs. China and Russia both expressed skepticism about the need for increasing sanctions on North Korea and opposed a US-Japanese resolution to punish the DPRK. UN insiders are reporting that Russian and Chinese opposition is so strong that "the United States and Japan might have to accept a non-binding warning statement from the council instead of a legally binding resolution." Meanwhile, China has advanced weak resolution that prompted one US official to comment that "The Chinese have come up with a completely watered down text which is unacceptable to us. It's not even worth discussing."

While I am not in any way surprised at the UN's complete inability to deal with issues of international security, I must admit I do not understand the strategic thinking of Russia and China here. President Obama has expressed his interest in more multilateral solutions as compared to President Bush, and sought to use the UN to deal with North Korea. Furthermore, neither Russia nor China has an interest in seeing North Korea proliferate. China in particular needs to worry about this, especially as North Korean proliferation may in turn drive Japan to develop a nuclear capability, or at the very least increase its ability for power projection.

Given that neither Russia nor China cares all that much about North Korea, given that they could have taken this opportunity as a chance to demonstrate that their preferred multilateral forum -- the UN Security Council -- is the proper place to deal with such issues and does have the capability to do so, given that the potential responses to North Korean proliferation are not in their interest, why would China and Russia be so unwilling to impose increased sanctions on North Korea for its flagrant violation of international law? I must admit I do not understand the strategic thinking here. The outcome of this intransigence is likely to demonstrate to Obama what President Bush knew: the multilateralism is not an end unto itself and that the UN cannot be relied upon to deal with issues that threaten American national security. Combine that with the regional destabilizing that will accompany North Korean proliferation and the potential for Japanese proliferation in turn, and it seems that China and Russia have made a colossal blunder here.