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.

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.

John Kerry on Afghanistan

This morning, I participated in a tele-conference sponsored by the Council on Foreign Relations with Senator John Kerry (D-MA). Senator Kerry, who is the chair of the Senate Foreign Relations Committee, was speaking on prospects for US policy and strategy in Afghanistan, from where Kerry recently returned from a fact-finding trip. Kerry's visit was designed, among other things, to obtain Afghan President Hamid Karzai's acceptance of a run-off vote in the disputed presidential elections in Afghanistan, which Kerry succeeded in getting.

[The transcript of Sen. Kerry's remarks are available here.]

Kerry began by stating that the debate over the proposal by General Stanley McChrystal that a minimum of 40,000 more US troops are necessary to stave off defeat is not the proper topic for policy discussion. Rather, the focus needs to be on developing a comprehensive strategy that melds military strategy with the necessary improvements in the Afghan government and society.

Kerry also stated that the US does have vital national security interests at stake in Afghanistan. Even though most of al Qaeda has been routed from Afghanistan and has moved into Pakistan, the porous border between the two means that if the US withdraws or significantly draws down its operations in Afghanistan, al Qaeda would likely move back into Afghanistan. It is thus imperative, he argued, to prevent the Taliban from re-establishing the kind of sanctuary it was able to provide prior to 9/11. Instability in Afghanistan leads to and contributes to instability in Pakistan.

Furthermore, Kerry warned that a radical departure from the current strategy would threaten US credibility around the world. First, Islamist insurgents would learn that the US can be defeated and lacks the political will to see a conflict through to its end. Second, a US withdrawal would send bad messages to US allies around the world, who look to the US as the leader of, as he called it, the global counter-insurgency movement.

So, the question that needs to be at the forefront of any policy discussion, as Kerry sees it, is what realistic goals can the US establish that can be met and will contribute to success? That in turn raises the question: How should success be defined? For Kerry, success will occur when the US has sufficiently empowered the Afghani government to the point where it can assume responsibility for domestic security and when the Afghan state can be sufficiently stable and secure so as to not be controlled by the Taliban or al Qaeda. This definition is important because it does not require that Afghanistan become a "flawless democracy," nor does it require that the US or the Afghan regime defeat the Taliban. Rather, Kerry was emphatic that the end is "good-enough" governance" which in turn requires capable Afghan security forces and a legitimate, effective civilian government.

After defining "success" Kerry turned to actual policy. He began by rejecting the strategy championed by Vice President Biden of drawing down US troops to shift to a highly limited strategy of targeting al Qaeda as an insufficient footprint to stabilize Afghanistan and protect Pakistan. Furthermore, such a policy could lead to a civil war, which would in turn directly threaten Pakistan. However, he also rejected (noting that this is not the strategy recommended by McChrystal) a broader country-wide counter-insurgency (COIN) strategy. The US does not have the capability for such a strategy (Kerry cited a number of 400,000 troops that would be needed); additionally, a broad strategy isn't needed, as the resurgent Taliban isn't active in the entire country, as it largely confined to the Pashtun-dominant regions. Fortunately, Kerry argued, such a broad COIN strategy is not needed. Rather, the US should focus its military COIN strategy on the population centers.

So. Kerry said more troops are needed. But, before the troops can be delivered, several questions need to be asked. 1) Are there enough reliable Afghani forces to partner with US troops and that can eventually assume the primary responsibility for domestic security ? 2) Are there local leaders with whom the US can partner? 3) Is the civilian government ready to support the military mission and to provide the domestic services needed by the civilian populations?

Kerry argued that while the answer to #2 is yes, the answer to #s 1 and 3 is "not yet". Kerry put out a number of 92,000 being the number of Afghan police and security forces currently capable of engaging in operations, although he noted that the real number is probably closer to 50,000, and that 3-4 times that many are required. But the real problem that worries Kerry is #3. The real problem in Afghanistan, as Kerry sees it, is inattention to the basic needs of the Afghani citizens who need basic services -- access to water, jobs, law, etc. -- to live their lives. If the government can't or won't provide these services, the average Afghani will turn to support anyone who can, and that's where the Taliban steps in. Kerry cited the recent revelation that the Taliban have created ombudsmen to hear complaints about their rule, while the government is widely mistrusted.

The key to Afghanistan is, Kerry argued, whether the Afghan government can succeed in providing these basic services and be seen as legitimate and effective. When and where the government succeeds, the Taliban weakens. Kerry claimed that there are only approximately 3,000 "hard-core" (i.e. ideologically committed) Taliban members, while the rest are either common criminals looking to profit, those opposed to the US presence, or those who simply believe that the Taliban offer a better future than does the current government. The right combination of effective governance, money, diplomacy, and promise of reintegration into society can, Kerry believes, siphon off many of these pragmatic Taliban members leaving the core isolated and weakened.

The key to Afghanistan, Kerry concluded, is whether the US and any future troop increase helps the Afghan government provide basic services and security.

Senator Kerry then took several questions from the press (the tele-conference was a press conference) one of which which I'll re-create here to the best of my ability.

A reporter from the Washington Times asked whether Kerry's preferred strategy -- implementing COIN in the population centers -- is any different from the policy implemented in the Bush administration. Kerry answered that the emphasis on effective and legitimate governance would, if done properly, make all the difference. Focusing on good-enough governance at the national and regional levels is the key to success, not increasing troops or even clearing the country-side of Taliban. The emphasis under Bush, Kerry claimed, was clear and hold, but without enough of a troop presence to hold. The proper strategy, Kerry said, is clear, hold, build (as in build civil society and services) and transfer (as in transfer responsibility for security to the Afghan government).

I am right on board with Senator Kerry's assessment. Increasing troop levels to be able to implement a proper COIN strategy is key, but it is matched in importance by the need to develop a credible and effective partner with the civilian Afghani government. These two elements must come hand in hand in order for anything even close to success to be a possibility. For Kerry, the solution is to steadily increase troop levels (Kerry stated that the US can effectively deploy 1 brigade to Afghanistan every 3 months) while concurrently judging the improvements in civilian benchmarks (provisions of services, stamping out corruption, training effective Afghan soldiers and police). The Biden-supported alternative is far too risky, not only to Afghanistan but to Pakistan. Given that a complete withdrawal is clearly out of the question, the only other alternative is to increase troops to implement a COIN strategy. McChrystal has laid out the military requirements of such a mission; but the military can only be successful when there is a sound political strategy in place. Kerry has laid out the broad contours of such a political strategy. Let us hope that President Obama listens.

Decision Time in Afghanistan

[I apologize for all the recent posts on Obama and US foreign policy. I plan to get back to broader discussions of international security, but there've just been too many issues of interest in USFP to pass up.)

President Obama is rapidly approaching what may prove to be the most important and defining decision of his presidency: What to do in Afghanistan. The military has presented Obama with a number of possible plans, but most sources agree that General Stanley McChrystal has told Obama that an increase of 40,000 US troops in Afghanistan is the minimum number necessary to prevent the collapse of the US-led effort there. If this option is selected, the thinking seems to be that US troops would begin implementing COIN (counter-insurgency strategy) along the lines of what was done in Iraq after the surge: Extend protection for Afghan citizens in an effort to separate them away from the Taliban and allow for the creation of government institutions and the provision of services (this report from Reuters does a nice job of illustrating what will be required for the COIN strategy to work). If the US's goal is to stabilize Afghanistan and continue moving Afghanistan down the road to democracy, most analysts see adopting a COIN strategy as the only way.

McChrystal also offered the president two other options: A troop increase of more than 40,000 (the more the better to implement COIN) and an option of no troop increase. Implicit in the third options (it very well have been made explicit, but we don't have the details of the meeting yet) is that sending anything less than 40,000 more soliders isn't worth the effort or the lives as it won't create a large enough force to protect and stabilize the country. These proposals come at a time when the US is hotly debating which strategy should be adopted in Afghanistan. One side, led by Vice President Biden is urging the president not to push for a large increase in troop presence and to focus on hunting down al Qaeda in Pakistan instead of continuing to attempt to stabilize Afghanistan. The other side, mainly the military (Secretary of Defense Gates and Secretary of State Clinton have yet to reveal their preferences) continues to argue for a classic COIN strategy and the tens of thousands of troops that will require.

Increasingly, however, the Obama administration seems to be moving towards focusing on al Qaeda instead of Afghanistan. And while there has been no formal (or at least public) decision on McChrystal's proposal, Obama has begun backing away from his previous position of Afghanistan as a "necessary war." Last week, a senior administration official told the Associated Press that "Obama is prepared to accept some Taliban involvement in Afghanistan's political future and appears inclined to send only as many more U.S. troops as needed to keep al-Qaida at bay."

The problems in Afghanistan certainly make it easier to move away from the COIN option to a focus on al Qaeda. Between the magnitude of the electoral fraud rampant in the August elections becoming increasingly apparent on one hand and reports of the failure of US efforts to create a functioning, legitimate government on on the other, it becomes harder and harder for Obama to justify sending thousands of American men and women to fight and die for the corrupt and inefficient Karzai regime.

The dilemma facing Obama demonstrates the difficulties the US has pursing its foreign policy, particularly in the long term. As Alexis de Tocqueville noted in Democracy in America, "a democracy finds it difficult to coordinate the details of a great undertaking and to fix on some plan and carry it through with determination in spite of obstacles. ...[T]he tendency of [the United States is] to obey its feelings rather than its calculations and to abandon a long-matured plan to satisfy a momentary passion...." Just last month, Obama was referring to Afghanistan as a "war of necessity" and warning that "those who attacked America on 9/11 are plotting to do so again" referring to the nexus between al Qaeda and the Taliban.

By itself al Qaeda does not pose a truly serious threat to the US and its interests. Since the loss of its base in Afghanistan, al Qaeda has had difficulty carrying out any significant operations of any real complexity (the Spanish train bombing and the London bus bombings, while horrifying, do not represent the kind of sophisticated operation that al Qaeda would like to be implementing; the London attack in particular had very little strategic payoff). But the Taliban, in fact, both by itself and in conjunction with al Qaeda do, in fact, represent a significant threat.

First, the Taliban in Afghanistan is rapidly increasing in numbers, growing from 7,000 to an estimated 25,000 in just three years, and is becoming more and more independent from its Pakistan branch. If the US fails to deal with this insurgency and backs away from the Karzai government (or whichever government is running Afghanistan), it is more than possible that the Taliban would reclaim control of the country. Setting aside the human rights disaster that would inevitably ensue, al Qaeda would likely quickly return from the mountainous regions of Pakistan and reestablish its more centralized organizational structure that enabled it to carry out the 9/11 attacks.

Secondly, the Pakistan branch of the Taliban is posing a serious problem to Pakistan. It wasn't all that long ago that the Taliban was threatening the stability of the Pakistani government, prompting fears over the security of the Pakistani nuclear arsenal. Increasingly, the Taliban is attacking Pakistani nuclear facilities, and the recent attack against an army headquarters in Rawalpindi makes clear the growing capability and sophistication of the Taliban's military power.

One could make the case about Afghanistan that the US has no real interest in the government there and that containing the Taliban and focusing on al Qaeda would be a better strategy. But when Pakistan is added into the equation, the porous border makes it vital that the US do more to root out the Taliban in Afghanistan itself. If the US backs away, both the Taliban and al Qaeda currently in Pakistan will return to Afghanistan and continue their attacks against both Pakistan and the world from relative safety.

Merely focusing on al Qaeda in Pakistan or on the governance of Afghanistan is too short-sighted. The nexus of the Taliban in both countries, the relationship with al Qaeda and the potential fragility of Pakistan make this a very serious problem and one of considerable importance to US national interest and global security. Obama needs to remember why he argued for some time that Afghanistan, and not Iraq, was the proper focus of the war on terror.

But even if he chooses to focus on al Qaeda, he needs to make a decision soon and in a decisive manner. The current dithering is rapidly undermining domestic public and political opinion which will, in turn, make it more difficult to sustain whichever option Obama picks. When the commander-in-chief determines that American soldiers need to be sent into harm's way, he needs to clearly justify his rationale to the American people and Congress.

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.

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?

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.

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.]

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.

Waterboarding and the Obama Administration

Attorney General Eric Holder has once again denounced the use of waterboarding, stating in a speech before the Jewish Council of Public Affairs that "waterboarding is torture ... My Justice Department will not justify it, will not rationalize it and will not condone it." In support of this stance, President Obama in January ordered that all government officials abide by the US Army Field Manual during interrogations.

Once again, I will say: It doesn't matter what Obama says or does. If waterboarding is to be illegal, if it is to be forbidden for use in interrogations, Congress must pass a law making waterboarding illegal and defining it as torture. If it is Obama who defines waterboarding as torture, he can just as easily change that definition in a subsequent order.

Is The Bloom Off Of Obama's Rose?

I've been saying repeatedly that those expecting President Obama to massively overhaul the controversial policies of President Bush are going to be sorely disappointed. So far, there have been grumblings about Obama's not-quite-complete disavowal of torture and extraordinary rendition.

But in the last few days, Obama's actions have shocked and dismayed civil liberties advocates who assumed the Incarnation Of Hope That Is Obama would be their standard bearer. Last week, Obama invoked, as did the Bush administration, the claim of "state secrets" to argue for the dismissal of a lawsuit against Boeing Corp. for participating in a CIA-backed rendition to Morocco that resulted in torture (the Binyamin Mohammed case). The ACLU denounced this decision, arguing that it amounted to a "ratification" of Bush's policies that indemnified US agents guilty of torture.

Today saw two more moves by Obama that horrified civil libertarians. First, was the claim by Secretary of State Clinton that pressure on China over human rights issues would not be allowed to undermine economic cooperation between the two states. Amnesty International announced that it was "shocked and extremely disappointed" by the decision. Second, just today Obama announced that his administration agreed with President Bush that detainees being held in Afghanistan should have no legal recourse under US laws, announcing that people being held at the prison at Bagram Airfield cannot use US courts to challenge the legality of their detention. An attorney with the ACLU noted that "They've now embraced the Bush policy that you can create prisons outside the law," while a human rights advocate working on behalf of the detainees said that "The hope we all had in President Obama to lead us on a different path has not turned out as we'd hoped."

What these people, and others, fail to realize is that there are seriously dangerous people out there who want to cause immeasurable harm to US interests and citizens. President Bush did not implement the policies because he is mean, or likes torturing people, but because he believed the policies were truly necessary to protect this country. And now that Obama is president he seems to be coming to the same realizations. This is not to argue that the policies chosen by our presidents are necessarily the right ones. I have written a book about how and why many of Bush's policies under the war on terror were indeed illegal. But those advocating for "improving human rights" must not assume that the policies should be removed because they are nasty and unpleasant.

Update on Obama and Rendition

A few days ago I wrote about an apparent loophole in Obama's executive order dealing with the treatment of suspected terrorists, as it appeared that Obama had left open the possibility of continuing the policy of "extraordinary rendition" used by the Bush Administration. I did note that it was likely that "even if Obama does render prisoners to other countries that he will procure assurances that the prisoners will not be subject to torture."

Today, Obama's CIA director-to-be Leon Panetta confirms this view, stating that while rendition will continue, prisoners will not be delivered to countries for the purpose of conducting secret interrogations possibly involving torture. According to Panetta:

I think renditions where we return individuals to another country where they prosecute them under their laws, I think that is an appropriate use of rendition. Having said that, if we capture a high-value prisoner, I believe we have the right to hold that individual temporarily, to debrief that individual and to make sure that individual is properly incarcerated so we can maintain control over that individual.

Now, if the practice of rendition remain availabe for use, there's nothing necessarily preventing Obama from using it in the way that Bush did. But for now, at least, Panetta's testimony seems to make a clean break from the Bush Administration and close the door on the use of rendition as a back-door to torture.

Those In Power, Do

I've written several times recently that the inauguration of Barack Obama would not be likely to produce any major changes in US foreign policy. Indeed, we've already seen evidence of waffling, or at least strategic ambiguity, on the question of torture. But this weekend saw perhaps the most surprising evidence of this.

President Obama has, apparently, decided to allow the CIA to continue the policy of rendition in which suspected terrorists are transfered to other countries so that they may be detained and interrogated beyond the reach and protection of US law. As the Chicago Tribune reports:

The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.

The European Parliament condemned renditions as an "illegal instrument used by the United States." Prisoners swept up in the program have sued the CIA as well as a subsidiary of Boeing Corp., which is accused of working with the agency on dozens of rendition flights.

But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.

The decision to maintain the use of rendition was contained in a small provision in the executive order that closed the CIA's secret overseas prisons that read that the order "do[es] not refer to facilities used only to hold people on a short-term, transitory basis." The members of al Qaeda, including many of those being held in Guantanamo, are exceedingly dangerous people who seek to kill as many people as they can. It is completely unsurprising that Obama has realized this, and it equally unsurprising that he has apparently decided that some extraordinary mechanisms need to remain in place to address this threat beyond those of the American criminal justice system.

What is, shocking, however is the apparent acquiesence to Obama's decision by Human Rights Watch, an organization that was at the forefront of the criticism leveled at President Bush for his policies. According to the Chicago Tribune:

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured."

As Darren Hutchinson, a law professor at American University, points out, "in an effort to defend the new administration in Washington, Human Rights Watch has apparently modified its position on the issue of rendition, which it previously viewed as inherently abusive and inhumane." Hutchinson goes on to illustrate the degree of this about-face:

Human Rights Watch: Before
Human Rights Watch, a very respected and passionate defender of civil liberty, was one of the most vocal critics of the CIA's rendition program. In fact, Human Rights Watch prepared a comprehensive document that reports incidents of alleged torture of rendered individuals. The report makes the following policy recommendations:

The US government should:

Repudiate the use of rendition to torture as a counterterrorism tactic and permanently discontinue the CIA's rendition program;

Disclose the identities, fate, and current whereabouts of all persons detained by the CIA or rendered to foreign custody by the CIA since 2001, including detainees who were rendered to Jordan;

Repudiate the use of "diplomatic assurances" against torture and ill-treatment as a justification for the transfer of a suspect to a place where he or she is at risk of such abuse;

Make public any audio recordings or videotapes that the CIA possesses of interrogations of detainees rendered by the CIA to foreign custody;

Provide appropriate compensation to all persons arbitrarily detained by the CIA or rendered to foreign custody (emphasis added).

Human Rights Watch rightfully opposed the practice of torture by the Bush administration, but it also demanded the cessation of rendition and that victims of the practice receive compensation.

The organization's recommendations went even farther, however. In order to make sure that the program ended, Human Rights Watch recommended that other countries should:

Refuse to cooperate in secret detention and rendition efforts, and disclose all information about past cooperation in such efforts (emphasis added).

Human Rights Watch: After
Now that the L.A. Times reports that rendition will continue during the Obama administration, Human Rights Watch has apparently altered its position. According to Tom Malinowski, the organization's "Washington advocacy director," the risk of torture and other abuses does not mandate the prophylactic cessation of rendition. Instead (quoting the L.A. Times):

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."

Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said (emphasis added).

Human Rights Watch, which has been unsurprisingly silent on this issue so far, most likely is confident that even if Obama does render prisoners to other countries that he will procure assurances that the prisoners will not be subject to torture. But there are no guarantees of that. That is the whole point of rendition: to get the subjects outside the reach of US law. Furthemore, HRW made it clear that its opposition to rendition was not solely based on the potential for torture. Hutchinson is appalled by this "flip-flop," calling Human Rights Watch's action "deplorable."

But just as Obama's action shouldn't be surprising, neither is that of HRW. Given the overt partisan and fawning nature of both the media and the major human rights organizations, as well as the not-so-slightly-creepy cult of personality that has sprung up around Obama, it shouldn't shock anyone that Human Rights Watch would shy away from criticizing the new president on grounds where it once lambasted President Bush.

Afghanistan and Heroin

As President Obama begins the process of switching focus from Iraq to Afghanistan, the situation in Afghanistan seemingly gets more dire with each passing day. In his column, Joel Brinkley offers some sober advice to Obama, including a suggestion that the US seal the border between Afghanistan and Pakistan by "declar[ing] the border closed, patrol[ing] it with helicopter gunships and shoot[ing] anyone who tries to cross." He also identifies the cultivation of poppies as a major impediment to progress, as "How can [NATO] troops quell an insurgency when the enemy is buying weaponry and enriching himself with drug money – as much as $100 million a year, the United Nations says – from the southern areas of Afghanistan he controls? And how can Western forces enlist cooperation from the government it is trying to protect when government leaders are also sucking up money from the opium farmers at such a voracious rate that Afghanistan is now classified as the fifth-most corrupt nation on earth?"

The solution, for Brinkely, is simple:

The United States, Afghanistan’s patron state, needs to tell Karzai that the price of continued support is the immediate eradication of the opium crops. Sure, the farmers will be angry. But what’s worse: enraging some constituents – or standing by while these same people hand over $100 million a year to your enemy?

Brinkely's advice violates everything the US military has learned about counter-insurgency warfare in Iraq. The most important thing is providing security and confidence to the local populace; if that cannot be done, the insurgents will be able to move among them and will be impossible to find. This is particularly true in Afghanistan, where the corruption of the central government and the seemingly endless litany of civilians deaths from NATO airstrikes have turned many Afghanis away from their government.

Poppy cultivation, and the subsequent production of heroin, is one of the only cash crops available to many Afghani farmers. Destroy their sole source of income, and they will have no choice but to turn to the Taliban for support as the central government has demonstrated no ability to develop a social network in the more rural area of the country.

Furthermore, how well has drug eradication worked in the US war on drugs? The US has spent $6 billion on coca eradication efforts in Colombia, only to see coca production rise by 15%. Why would it be any more likely to work in Afghanistan, which one can only assume would be a more difficult project than in Colombia?

A better answer is one I wrote about nearly 2 years ago: the legalization of poppy cultivation. Tony Blair raised this issue, arguing that the poppies could be purchased by NATO forces and used to produce opiate-based medicines (which just so happen to be in short supply). Even if the crop was purchased and subsequently destroyed, this option has at least two major benefits over Brinkely's suggestion. First, it would provide Afghani farmers with a reliable source of income that would be attributable to both the Afghani government and to NATO, two entities which are desperately in need of some good PR. Secound, it would deprive the resurgent Taliban of a vital source of income.

Shifting the outcome in Iraq took a major change in strategic thinking: the result was the surge that has paid off across the board in Iraq and has created the real possibility of success there. The same is true in Afghanistan. The tired logic and rhetoric of the war on drugs must be abandoned if the Taliban is to defeated and Afghanistan is to be given the chance that Iraq now seems to have. President Obama must not be held hostage by old ideas and domestic politics that sees poppy legalization as the first step towards drug legalization in the US. If legalizing and buying Afghani poppies can help the US and NATO win "the central front in the war on terror" then it is a move that must be made.