Obsidian Wings

Sad, But True

by Andrew

A very good point raised by a Corner reader, and a good reminder of why it's important to contact our representative and Senators about pending legislation to make sure they understand where we stand.

America is a  democracy. Politicians take their positions, by and large, because those positions get them votes. Terrorism was not treated as a huge threat before 9/11 because the American people, in general did not think of it as a threat.
Imagine if someone had tried to run for president in 1992, or 1996, or 2000, on a platform that preventing terrorist attacks against the US should be our number one priority, and promised to devote immense resources to that goal, maybe including serious military engagement in the Middle East. He wouldn't have had a chance.
It's a funny thing about democracies, and one that goes back at least to Athens: the whole point of the system is that decisions are made by the people, and we're all very proud to take part in government; and then when a decision seems to have been wrong, there has to be a huge frantic hunt for the politician who tricked or coerced us into it.

And an open thread, because it sounds like we could use one. (Sorry I don't have more today...just got back from a weekend at home and my brain isn't functioning at 100% yet. Insert your own snide remark here.)

More Swedish Triumphalism!

by hilzoy

One might imagine, if one were into armchair speculation, that a contrast between the economies of Sweden and the United States might go something like this: Sweden has provided an extensive safety net to its citizens. They don't have to worry about how to pay for medical expenses, or whether they'll be able to afford to send their children to college. And that's a good thing. However, all this social spending has taken its toll on economic productivity and competitiveness. The United States has made the opposite choice: on the one hand a much smaller and more scattershot safety net; on the other, greater economic competitiveness. There's a tradeoff between these two good things, and the two countries have just chosen to make that tradeoff differently.

One might think that, but one would be wrong (via Kevin Drum):

"The US has lost its status as the world's most competitive economy, according to the World Economic Forum.

The US now ranks only sixth in the body's league table of global competitiveness, behind Switzerland, Finland, Sweden, Denmark and Singapore.

Risks attached to the large US trade and fiscal deficits prompted its fall."

Mwahahahahahaha! Sweden RULEZ!!!

We Can All Be Enemy Combatants!

by hilzoy

There seems to be a new draft of the "compromise" bill on military tribunals and detention. I haven't read it through in its entirety. However, a few points:

First, it still strips alien enemy combatants of habeas rights. It also still contains this horrible provision:

"(2) Except as provided in paragraphs (2) and (3) of section 1005(c) of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien detained by the United States who --

(A) is currently in United States custody; and
(B) has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." (p. 82)"

That's the one that effectively removes our system of extraterritorial detention from judicial oversight.

Second, the Washington Post notes that the definition of 'unlawful enemy combatant' does not preclude US citizens from being designated as unlawful enemy combatants. This is not new: the previous version of the bill didn't rule that out either. Nor does this strike me as a bad thing: if a US citizen went off to fight with al Qaeda against the US, he or she would seem to me to be properly described as an unlawful enemy combatant (at least, if we leave aside questions about whether we should use that term at all.) Moreover, a lot of the provisions of the law specify that they apply only to alien unlawful enemy combatants.

The problem with the new definition isn't that it allows US citizens to be unlawful combatants; it's that it's both broad and (it seems to me) vague. It reads (copying from Balkinization, since the pdf doesn't allow copying):

"(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

The 'purposefully and materially supported hostilities' part has, I think, two possible readings: (1) someone has purposefully done something in order to materially support hostilities against the US; and (2) someone has purposefully done something, and the government believes that that something materially supports hostilities against the US. To see the difference, consider this example:

"Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.

“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her."

On the first reading, the little old lady would not be an enemy combatant, since she did not know that her money would be sent to al Qaeda, and thus did not purposefully aid it. On the second, however, she would: she purposefully sent her money to the charity, and thus purposefully did something that, unbeknownst to her, materially supported hostilities against the US.

There's a big difference between the two readings.

We also need to know what, exactly, count as "hostilities". Marty Lederman points to a statement from yesterday's Judiciary Committee hearings that makes this clear. It's by Bradford Berenson, who describes himself as "Associate Counsel to President Bush from January, 2001 through January, 2003":

"We thus found ourselves after Rasul with hundreds of our nation’s most vicious enemies suing our military and civilian commanders in federal court seeking writs of habeas corpus. Indeed, now that Khalid Sheikh Mohammed, the al Qaeda mastermind of 9/11, has been transferred to Guantanamo, it may not be long before he, too, can continue his aggression against the United States, this time through our own court system."

So according to someone who was one of the administration's lawyers for two years, filing habeas corpus petitions counts as aggression against the US. By that standard, on either of the two readings, CharleyCarp and I, along with any of you who have taken material steps to secure habeas rights for detainees, are all enemy combatants.

Nice to know. I thought I was sticking up for my Constitution and its values, and doing what I took to be my patriotic duty. Silly me.

The point is not that I believe that this retired administration official's rhetorical excesses might actually be turned into explicit policy. The point is rather that I don't see much in the bill that would prevent that. It's terribly written and very confusing, and a lot of its worst effects are not obvious when you read it quickly. It's also 96 pages long. We should not so much as consider messing with our Constitutional rights by passing a bill written in haste, whose drafts are still being worked on even as we speak, with a little over three days left before the Congress goes into recess. There is no time to have anything like the kind of debate we need to have; there isn't even enough time to feel the slightest confidence that we understand what the bill does.

Even if this bill did not have the appalling habeas-stripping and case-blocking provisions I mentioned above, and even if I had absolutely no objections to its contents, I would still feel that it would be a horrible mistake to pass a bill dealing with such important issues in this slapdash way. Laws are complicated things, and it takes time to figure out what effect changes to them will have. The administration and Congressional leaders have had years to work out a bill that would address their concerns. Pulling one out of their collective hats at this late date is no way to amend basic constitutional rights. When they insist that "time is running out", we ought to reply: and whose fault is that, exactly?

In any case, though, the worst features of the old bill remain in place. In my opinion, it should still be filibustered.

Some Things Defy Excerpting

by hilzoy

Via Atrios, a transcript of the testimony of three retired Generals. Gen. Batiste, who "was offered and declined a promotion to three-star rank to return to Iraq and be the No. 2 U.S. military officer there, because he no longer wished to serve under Rumsfeld":

"Donald Rumsfeld is not a competent wartime leader. He knows everything, except "how to win." He surrounds himself with like-minded and compliant subordinates who do not grasp the importance of the principles of war, the complexities of Iraq, or the human dimension of warfare. Secretary Rumsfeld ignored 12 years of U.S. Central Command deliberate planning and strategy, dismissed honest dissent, and browbeat subordinates to build "his plan," which did not address the hard work to crush the insurgency, secure a post-Saddam Iraq, build the peace, and set Iraq up for self-reliance. He refused to acknowledge and even ignored the potential for the insurgency, which was an absolute certainty. Bottom line, his plan allowed the insurgency to take root and metastasize to where it is today. Our great military lost a critical window of opportunity to secure Iraq because of inadequate troop levels and capability required to impose security, crush a budding insurgency, and set the conditions for the rule of law in Iraq. We were undermanned from the beginning, lost an early opportunity to secure the country, and have yet to regain the initiative. To compensate for the shortage of troops, commanders are routinely forced to manage shortages and shift coalition and Iraqi security forces from one contentious area to another in places like Baghdad, An Najaf, Tal Afar, Samarra, Ramadi, Fallujah, and many others. This shifting of forces is generally successful in the short term, but the minute a mission is complete and troops are redeployed back to the region where they came from, insurgents reoccupy the vacuum and the cycle repeats itself. Troops returning to familiar territory find themselves fighting to reoccupy ground which was once secure. We are all witnessing this in Baghdad and the Al Anbar Province today. I am reminded of the myth of Sisyphus. This is no way to fight a counter-insurgency. Secretary Rumsfeld's plan did not set our military up for success.

Secretary Rumsfeld's dismal strategic decisions resulted in the unnecessary deaths of American servicemen and women, our allies, and the good people of Iraq. He was responsible for America and her allies going to war with the wrong plan and a strategy that did not address the realities of fighting an insurgency. He violated fundamental principles of war, dismissed deliberate military planning, ignored the hard work to build the peace after the fall of Saddam Hussein, set the conditions for Abu Ghraib and other atrocities that further ignited the insurgency, disbanded Iraqi security force institutions when we needed them most, constrained our commanders with an overly restrictive de-Ba'athification policy, and failed to seriously resource the training and equipping of the Iraqi security forces as our main effort. He does not comprehend the human dimension of warfare. The mission in Iraq is all about breaking the cycle of violence and the hard work to change attitudes and give the Iraqi people alternatives to the insurgency. You cannot do this with precision bombs from 30,000 feet. This is tough, dangerous, and very personal work. Numbers of boots on the ground and hard-won relationships matter. What should have been a deliberate victory is now an uncertain and protracted challenge.

Secretary Rumsfeld built his team by systematically removing dissension. America went to war with "his plan" and to say that he listens to his generals is disingenuous. We are fighting with his strategy. He reduced force levels to unacceptable levels, micromanaged the war, and caused delays in the approval of troop requirements and the deployment process, which tied the hands of commanders while our troops were in contact with the enemy. At critical junctures, commanders were forced to focus on managing shortages rather than leading, planning, and anticipating opportunity. Through all of this, our Congressional oversight committees were all but silent and not asking the tough questions, as was done routinely during both World Wars, Korea, and Vietnam. Our Congress shares responsibility for what is and is not happening in Iraq and Afghanistan.

Our nation's treasure in blood and dollars continues to be squandered under Secretary Rumsfeld's leadership. Losing one American life due to incompetent war planning and preparation is absolutely unacceptable. The work to remove Saddam Hussein and his regime was a challenge, but it pales in comparison to the hard work required to build the peace. The detailed deliberate planning to finish the job in Iraq was not considered as Secretary Rumsfeld forbade military planners from developing plans for securing a post-war Iraq. At one point, he threatened to fire the next person who talked about the need for a post-war plan. Our country and incredible military were not set up for success.

Our country has yet to mobilize for a protracted, long war. I believe that Secretary Rumsfeld and others in the Administration did not tell the American people the truth for fear of losing support for the war in Iraq. Secretary Rumsfeld failed to address the full range of requirements for this effort, and the result is one percent of the population shouldering the burdens, continued hemorrhaging of our national treasure in terms of blood and dollars, an Army and Marine Corps that will require tens of billions of dollars to reset after we withdraw from Iraq, the majority of our National Guard brigades no longer combat-ready, a Veterans Administration which is underfunded by over $3 billion, and America arguably less safe now than it was on September 11, 2001. If we had seriously laid out and considered the full range of requirements for the war in Iraq, we would likely have taken a different course of action that would have maintained a clear focus on our main effort in Afghanistan, not fueled Islamic fundamentalism across the globe, and not created more enemies than there were insurgents."

Almost every sentence in that is worth lingering over, it's so damning. There are two more retired generals one more retired General and one retired Marine Colonel after that. It's worth reading the whole thing.

And while I'm at it, read this, from Intel Dump, as well.

Why Donald Rumsfeld still has any job at all, let alone the one he had at the beginning of this administration, is a mystery that passeth human understanding.

Historical Accuracy

by hilzoy

Glenn Greenwald in Salon:

"One of the central prongs in the right-wing effort to blame Bill Clinton for the growth of al-Qaida (and one of the central aspects of the general neoconservative mythology of how to fight terrorism) revolves around Somalia. Specifically, the right-wingers claim that President Clinton's withdrawal of troops from Somalia after a Muslim militia dragged the bodies of U.S. troops through the streets of Mogadishu conveyed weakness to the Muslim world and showed that we could be easily defeated. We suffer a few casualties, and we run away. They claim that that perceived weakness -- "cutting and running" from Somalia -- is what "emboldened" Osama bin Laden in the 1990s to wage war against us.

But that is pure historical revisionism; it is just completely false. (...) After the U.S. troops were dragged through the streets of Mogadishu, numerous conservative senators and representatives -- mostly Republican along with some conservative Southern Democrats -- demanded that Clinton withdraw all American troops immediately, insisting that the U.S. had no interest in Somalia and that not one more American troop should die there. They gave speeches stoked with nationalistic anger and angrily demanded immediate withdrawal, and even threatened to introduce legislation to cut off all funding for any troop maintenance in Somalia.

Clinton -- along with Democratic senators such as John Kerry -- vigorously argued against immediate withdrawal, in part because of the concern that America would look weak by panicking and abandoning its mission at the first sign of trouble (just like President Reagan did in 1983 when he immediately withdrew U.S. forces from Lebanon after the attack on U.S. Marines). Clinton had to virtually beg to be allowed to keep troops for an additional six months (and he even increased American troop levels) to stabilize the situation, demonstrate U.S. resolve and a commitment to the mission and, most of all, avoid a panicky, fear-driven retreat."

I remember this, and have always found it odd that our withdrawal was painted as a Clinton move, when as I remember it he worked against it. But unlike me, Glenn actually went to the trouble of looking up quotes from the debate over Somalia. He has put them here. It's worth reading, in order to remind yourself who, exactly, was in favor of cutting and running as soon as we took casualties, and who, in the face of considerable pressure to cave, said this:

"So, now, we face a choice. Do we leave when the job gets tough or when the job is well done? Do we invite the return of mass suffering or do we leave in a way that gives the Somalis a decent chance to survive? Recently, Gen. Colin Powell said this about our choices in Somalia: "Because things get difficult, you don't cut and run. You work the problem and try to find a correct solution." (....)

So let us finish the work we set out to do. Let us demonstrate to the world, as generations of Americans have done before us, that when Americans take on a challenge, they do the job right."

-- On reflection, and because I too have TimesSelect ;), I'm going to paste longer sections of Clinton's speech on Somalia below the fold, in the interests of historical accuracy.

Specter-Levin Amendment

by Katherine

There is still a chance--maybe not a very good chance, but a real chance--to change one of the worst aspects of the detainee bill. Carl Levin and Arlen Specter* are apparently planning to co-sponsor an amendment to remove the section that strips the courts of jurisdiction to hear habeas corpus claims over Guantanamo.

I don't have time to write a long post about why this is important. There are many, many such posts in our archives if anyone wants to look. Here's one. Here's another, which contains links to still others.

This list gives the contact information for every U.S. Senator.

Please call, and ask them to support the "Specter-Levin amendment restoring habeas corpus". (I don't have the amendment #). Please also consider asking other people to call, and if you have a weblog, writing a post asking them to do so. Obviously, you might also consider asking them to filibuster the detainee bill itself.

I don't know what the odds are on this, but the vote was close last fall; it should at least be close again. Even if it's not--I think it matters that as many people contact their representatives as possible. (It matters to me, at any rate). And it takes five minutes.

Also, if you can get an answer out of your Senator about his or her position, please post it here. Thanks.

Presented Without Comment

by hilzoy

NYT:

"A stark assessment of terrorism trends by American intelligence agencies has found that the American invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism and that the overall terrorist threat has grown since the Sept. 11 attacks.

The classified National Intelligence Estimate attributes a more direct role to the Iraq war in fueling radicalism than that presented either in recent White House documents or in a report released Wednesday by the House Intelligence Committee, according to several officials in Washington involved in preparing the assessment or who have read the final document.

The intelligence estimate, completed in April, is the first formal appraisal of global terrorism by United States intelligence agencies since the Iraq war began, and represents a consensus view of the 16 disparate spy services inside government. Titled “Trends in Global Terrorism: Implications for the United States,’’ it asserts that Islamic radicalism, rather than being in retreat, has metastasized and spread across the globe.

An opening section of the report, “Indicators of the Spread of the Global Jihadist Movement,” cites the Iraq war as a reason for the diffusion of jihad ideology.

The report “says that the Iraq war has made the overall terrorism problem worse,” said one American intelligence official."

Washington Post:

"The war in Iraq has become the primary recruitment vehicle for violent Islamic extremists, motivating a new generation of potential terrorists around the world whose numbers are increasing faster than the United States and its allies are eliminating the threat, U.S. intelligence analysts have concluded.

A 30-page National Intelligence Estimate completed in April cites the "centrality" of the U.S. invasion of Iraq, and the insurgency that has followed, as the leading inspiration for new Islamic extremist networks and cells that are united by little more than an anti-Western agenda. Rather than contributing to eventual victory in the global counterterrorism struggle, it concludes, the situation in Iraq has worsened the U.S. position, according to officials familiar with the classified document."

Never has the category 'Iraq and Terrorism' seemed more appropriate.

A World Beyond The Law

by hilzoy

In my last post, I asked the question: why are Lindsey Graham and the administration so eager to strip detainees of their legal rights? I considered various arguments that they have advanced, and as far as I can tell, they don't really hold up. Detainee cases are not clogging the courts, and while they might interfere with interrogations by, for example, breaking detainees' isolation and giving them a ray of hope, they do not in any way make it impossible for those interrogations to continue.

So why are they doing this? Everyone has probably figured this out long before I did, but: I was thinking of the habeas-stripping provisions from the point of view of a detainee, who might wonder: what legal recourse do I have if this bill goes through? How can I protest my detention if, for instance, I have been found innocent but not released, or if I have been tortured? The answer to that question is, as far as I can tell, 'you have no recourse'; and that horrified me.

But then it occurred to me to think of it from a different angle: from the perspective of the system of extraterritorial prisons that we seem to be setting up. From that point of view, the main question raised by the "compromise" bill (pdf) is a different one, namely: who has the right to question, in a court of law, any aspect of our treatment of alien combatants held outside the US? As far as I can tell, with very limited exceptions, the answer to this question is: no one but the very same government that set the system up in the first place.

This means, basically, that this bill will remove the entire system of detention, with the exception of its military commissions and combatant status review tribunals, from any judicial oversight at all.

Courts do not get to decide for themselves to investigate some activity that they suspect might violate the law. In order for a court to consider the question whether something is lawful, someone has to bring them a case that raises that question. By preventing anyone but the government from bringing any such case, this bill ensures that unless the government decides to bring one itself, no case that would give the courts a reason to consider anything that goes on during a prisoner's detention and interrogation can ever be brought. Which is to say: it removes the entire system of detention, except for its military commissions and CSRTs, from any judicial review. Literally anything could be going on during interrogation and detention, and the courts would have no way to pronounce on its legality, or to require anything to change.

Justified Blogosphere Triumphalism

by Katherine

In case anyone is desperate for actual good news this weekend, I'm turning the microphone over to Jim Henley (via unfogged):

" It looks very likely that Radley Balko has saved Cory Maye’s life."

Consider this an open thread.

Why Are They Doing This? (Special Habeas-Stripping Edition)

by hilzoy

As most of you know, the "compromise bill" (pdf) on military tribunals, like the various drafts that preceded it, would strip habeas rights from any alien enemy combatant detained outside the US. According to the AP, we are now holding about 14,000 detainees abroad. We have scheduled military commissions for ten of them. Of the remaining 13,990, the 450 or so at Guantanamo have already been stripped of their habeas rights, and the Graham Amendment last year said those whose cases had not already been filed could onlycontest their detention on the grounds that their Combatant Status Review Tribunals had not followed proper procedure. That leaves roughly 13,540 detainees who will be deprived of any right to contest their detention if the "compromise bill" becomes law.

I asked myself: why, exactly, are Lindsey Graham and the administration so eager to strip detainees of habeas corpus rights? In what follows, I will consider the reasons they have given, and ask whether they are plausible. (Answer: no.) In a subsequent post, I'll consider an alternative explanation.