Obsidian Wings

Said The Red Queen

by Gary Farber

First, we don't kill all the lawyers.  

Let's continue the examination of the lawfulness of the killings of American citizens Anwar al-Awlaki and Samir Khan I began in my post, Off With Their Heads!

(That various other non-citizens, including Muhammad Salme al-Naaj and Abdul-Rahman bin Arfaj, and another several Yemenis, were killed is another debate, but they should not be forgotten, either.)

Consider the justifications presented for these killings:

#1: Did they commit "treason"?  Possibly so!  

Sticking point: the U.S. Constitution says very clearly:  

Section 3 - Treason 

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

It's almost as if the drafters of the Constitution considered this!  

Our Constitution specifically defines "treason" and the only way someone can be convicted of it.  As You Know, Bob (everyone), the U.S. Constitution is superior to U.S. laws, which can't violate the Constitution.  So al-Awlaki and Khan can't have been put to death because they committed "treason."  

The President has taken an oath to uphold the Constitution.

#2: It was justified to kill them because of their propaganda and speech.  

Unfortunately for this argument, the Constitution also rules it out with the little-known, obscure, First Amendment freedom of speech. 

Let's move on to more serious arguments.

But first let's jump to the White House presenting its official response as press secretary Jay Carney explains, and is questioned by Jake Tapper (!) of ABC News: 

 

Some quotes: 

TAPPER: You said that al-Awlaki was “demonstrably and provably involved” in operations. Do you plan on demonstrating or proving –

Off With Their Heads!

by Gary Farber

I say we just kill all accused murderers from now on.

Think of the money saved, the deficit, and, of course, the children.

Now that we've established that the courts and Constitution don't matter, let's just jail all the accused criminals, too. Why lose sleep? They're murderers and criminals! The state says so. 

All Presidents need the power to assassinate people simply because they say so. What could go wrong? 

This matters not.

Amendment 5 - Trial and Punishment, Compensation for Takings.

Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Executive Decision

GUEST POST by McKinneyTexas, NOT by Gary Farber

First, thanks to Gary Farber for the kind invitation to guest post.  Initially, I'd begun a sort of semi-reflective, Kumbaya piece but then it occurred to me that my role was to introduce of bit of diversity here at ObWi, to provoke thought from the other side of the spectrum.  So, here it is: your dose of provocation:

One glaring fault of the Left-in-Power is its lack of respect for the constitutional process on that most fundamental question of committing the country to war. 

First, under Clinton and then under Obama, US troops were committed to combat operations overseas when no US vital interest was at stake and certainly no attack on US citizens or interests anywhere was imminent.  Neither commitment was subject to public debate, or more importantly, authorized by congress.

Compare this to the much reviled Bush II administration and its wars in Iraq and Afghanistan. 

Self-Evident

Guest post by Amezuki, not by Gary Farber

You all know me by a different pseudonym, and I'll reintroduce myself properly later.

But in the meantime, a word from our Founders:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

The Declaration of Independence stands, in my mind, as one of the greatest political documents in history.

Like our Constitution, it stands on the shoulders of many other exalted works, and my opinion is not in any way intended to denigrate those works--but what makes it stand out in my mind is not just the role it had in the birth of our nation, but in the simple, unequivocal and straightforward statements of first principles it contains.

Foremost among these is the well-known passage I quoted above. Its evocative power was such that Martin Luther King, one of the most eloquent speakers and users of language our nation has known, had no need to embellish it further when quoting it, save to correctly note that it was a promise our country had yet to fully honor. "All men are created equal."

Think about that for a moment. All men. You will notice a distinct lack of footnotes, equivocation, qualifications or exceptions to the word "all".

Don't Fear The Reaper

by Gary Farber

We must talk about the the War Logs of Wikileaks.

The amount of data is staggering.  Key stories abound. 

Let us start with death.

The Guardian's breakdowns include a breakdown of lethal casualties of the Iraq war.  (The New York Times approach is here; we'll get to that.)

America caused this.  It's a map of every Iraqi war-related death documented by the Coalition.

Hooray for freedom.

Waste Not, Want Not

by guest poster Gary Farber.

How much is $50 billion? 

That's how much the president proposes we spend:

[...] It calls for a quick infusion of $50 billion in government spending that White House officials said could spur job growth as early as next year — if Congress approves. [...]  Central to the plan is the president’s call for an “infrastructure bank,” which would be run by the government but would pool tax dollars with private investment, the White House says. [...] Specifically, the president wants to rebuild 150,000 miles of road, lay and maintain 4,000 miles of rail track, restore 150 miles of runways and advance a next-generation air-traffic control system.

[...]

The White House did not offer a price tag for the full measure or say how many jobs it would create. If Congress simply reauthorized the expired transportation bill and accounted for inflation, the new measure would cost about $350 billion over the next six years. But Mr. Obama wants to “frontload” the new bill with an additional $50 billion in initial investment to generate jobs, and vowed it would be “fully paid for.” The White House is proposing to offset the $50 billion by eliminating tax breaks and subsidies for the oil and gas industry.

After months of campaigning on the theme that the president’s $787 billion stimulus package was wasteful, Republicans sought Monday to tag the new plan with the stimulus label. The Republican National Committee called it “stimulus déjà vu,” and Representative Eric Cantor of Virginia, the House Republican whip, characterized it as “yet another government stimulus effort.”

Which sounds good to me, if not to you, but we can all agree that we don't want to "waste" money.

Even before the announcement Monday, Republicans were expressing caution.

“It’s important to keep in mind that increased spending — no matter the method of delivery — is not free,” said Representative Pat Tiberi, an Ohio Republican who is on a Ways and Means subcommittee that held hearings on the bank this year. He warned that “federally guaranteed borrowing and lending could place taxpayers on the hook should the proposed bank fail.”

Such concern might have come earlier: 

• The Department of Defense is unable to account for the use of $8.7 billion of the $9.1 billion it spent on reconstruction in Iraq.
• Source: Special Inspector General for Iraq Reconstruction (PDF).

The Most Powerful Lobby in Washington

by von

I have a policy:  avoid debating Israeli policy via blog.  I have some experience with deeply-contested histories (obliquely referenced in my St. Patrick's Day post, below).  Contested histories are nuancy.  But the blog format isn't long enough, or interactive enough, to allow for any nuance.  Reduced to spurts of 200 or 500 words, everyone becomes a caricature.  And I'm not interested in debating, or being, a caricature.*

Obviously, with that lead up, I am now going to violate my policy in spectacular form.  Moreover, for maximum effect, I'm going to violate my policy with a headline that is 100% certain to be misunderstood. (This is called assuming the risk, and then raising it one.)

We start with Abe Foxman of the ADL, who claims:

Israel should immediately battle a charge emerging in the US that its actions are endangering the lives of US soldiers, because it is a particularly “pernicious” argument that “smacks of blaming the Jews for everything,” Anti-Defamation League National Chairman Abe Foxman said on Monday.

Andrew Sullivan responds:

The man with the fax machine has declared that Petraeus' recent comments on Israel "[smack] of blaming the Jews for everything.”  Yglesias yawns. ...

....

Reality is meeting a lobby. In Washington, that usually means the lobby wins. But this time, we are at war and America's vital interests are at stake. This will be a struggle - but that there is a struggle at all is progress in a way. I'd be more worried if no sparks were flying.

Two points need to be made here.  First, it is not clear that Foxman is responding to Gen. Patraeus' recent testimony.  That linkage is assumed by Sullivan, Yglesias, and Ackerman -- and then deployed for maximum effect -- but it's not in Foxman's reported comments.  Rather, it seems more likely from the context that Foxman is responding to Biden's comment last week.  Biden's off-the-cuff statement was a good deal stronger than Patraeus' prepared testimony (and Biden may have been misquoted). 

The second point, however, is possibly more important.  Sullivan frames this debate as "Reality is meeting a lobby [e.g., AIPAC]." Let's be perfectly clear on one point:  The most powerful lobby in Washington is not AIPAC, Abe Foxman, the Weekly Standard, "neocons," their allies, or any combination of the foregoing.  The most powerful lobby in Washington is the United States Military.  And it's not even a close call.

That is the true import of Patreaus' measured statement.  If the Department of Defense concludes that a particular Israeli strategy is likely to injure or kill US troops, no one on Capitol Hill is going to stand up for that Israeli strategy.  No one will argue that a settler should build a new home in East Jerusalem at the expense of an American life.  That game is over.  No number of faxes will change it.  And everyone knows it, which is why any gentle pressure from Patreaus will alter US policy more than the harshest words from the usual combatants.

Whether you find this terrifying or exciting depends on your views on the Netanyahu's current governing coalitiation.  And, perhaps, your views of Gen. Patreaus.

Finally, for what it's worth, I think that Jeffrey Goldberg's reporting has been spot-on throughout these recent contretemps.   I also think that Goldberg is absolutely correct that Obama's long-game is to force Netanyahu to ditch the far right parties that make up his coalition.  A goal that I support, by the way.  (Indeed, my second policy is:  The first thing to do is, ditch the crazies.) 

*The exception to my first policy is Ta-Nehisi Coates, who has somehow found and/or created a way to talk about complicated things on a blog.

How not to spy, by your friends in Al Qaeda

by Robert Mackey

Mark Mazetti's newest article on the suicide bombing that killed CIA agents in Afghanistan, "U.S. Saw a Path to Qaeda Chiefs Before Bombing, " has this interesting tidbit worth considering:

"Mr. Balawi proved to be one of the oddest double agents in the history of espionage, choosing to kill his American contacts at their first meeting, rather than establish regular communication to glean what the C.I.A. did — and did not — know about Al Qaeda and then report back to the network’s leaders."

That did make me think about what sort of threat AQ really is. 

These guys...are idiots.  Bear with me a moment.

The greatest double agent in history was, in my opinion, Mr. Juan Pujol.  Mr. Pujol was a nobody in 1939 Spain.  He held a grudge against both the Nazis and the Soviets, due to the butchery that was the Spanish Civil War.  Consequently, he decided to become a spy for Great Britain when World War II began.  Being a completely untrained spy, he calmly went to the British embassy in Madrid and offered his services.  What Mr. Pujol did not know was that, in intelligence terms, he was the least likely person to be recruited for spying--a "walk-in."  The British rejected him.

Juan was far from dismayed. Instead, he offered his services to the Germans in hopes of building up information that then he could then present to the British, who would surely hire him at that point.  The Germans, who operated one of the most efficient spy networks in Europe under the protection of Franco, quickly recruited him.  However, Juan was presented with a real dilemma. He told the Germans that he traveled to the UK on a constant basis and could provide shipping and other information to them.  He did not, and did not know how to get himself to the UK to gather such information.

So he lied. A lot. And the Germans believed it completely.  You see, Juan Pujol was a natural storyteller, one of those people who could not only lie convincingly but could create a believable story from his own imagination. Pujol's 'spy network' soon reached dizzying proportions--from disgruntled sailors in Glascow to an American sergeant in England.  All were invented.  When he again approached the British in 1942, they were both stunned and elated. The Germans believed everything he told them, paying him a hefty sum in "traveling expenses" and for bribes.  Pujol was an Allied patriot--he reported the money and turned it over to his British handlers.

For Pujol, his big day was that of many others in Western Europe in the 1940s--June 6,1944.  D-Day was Pujol's greatest victory. Because of him, and the British and American intelligence officers in the UK who were fooling the Germans, the Nazis believed that nearly 75 Allied divisions were in Great Britain.  These 'extra' divisions resulted in Hitler demanding the defense of the Pas de Calais until July, 1944. Even as Allied troops liberated Paris, Hitler and his generals refused to pull troops off of the defense of potential invasion sites, from Norway to Spain. 

For his reward, Juan Pujol was given the Iron Cross, First Class, by the Nazis.  And was awarded the MBE by the British Government.  He kept his secret until the 1980's, when the story of a spy called GARBO was finally told.

What does this have to do with the death of CIA agents by a suicide mole?

Everything. Juan Pujol was the perfect double agent.  He kept his side informed, planted disinformation in the minds of his enemies, and literally shortened World War II by nothing more than creating an imaginary spy network.  Al Qaeda, in stark contrast, decided to go through all the effort to get an agent into the American intelligence network, place that agent in a trusted position, and then...have him blow himself up.

That fact alone demonstrates the complete incompetence of not only the American ability to vett potential agents, but of Al Qaeda to plan and run a complex intelligence operation.  Instead of having an 'inside man' to pass information to the terrorist group, they had their one guy on the inside blow up a bunch of co-workers.  Imagine that you work for a software corporation that wants to get someone on the inside of Microsoft.  They recruit and train you, get Microsoft to hire you.  Instead of having you steal the code to the next version of Windows...they have you steal a couple of boxes of printer paper from the mailroom. You are caught and fired.  But hey, Microsoft is really scared now, aren't they?

While it is obvious that the CIA needs to work on how it recruits its assets, it also needs to consider the amateurish approach that AQ took in this situation. 

Imagine what the impact would have been had the bomber waited to do his deed for a high profile visit by General Petaeus, CIA Director Panetta, or even President Obama on a visit to the troops. Or if they had just quietly watched all the actions the Americans were taking for years before they were finally discovered.

Then again, maybe the CIA would have given him a medal by that point.

Just Wars and Detainees

by Robert Mackey

A post I did a few days ago on the argument for manned nuclear bombers, much like any freewheeling discussion on most blogs, soon turned to an interesting cul-de-sac of discussion on the nature of warfare, those whose job it is to both fight and conduct warfare (two quite different things), and what defined a combatant and non-combatant.  I'd like to address the latter and will discuss the former over the next few days.  Comments are always welcome!

The idea of just war, as most of you are well aware, began in the early Christian Era in the West, by old St. Augustine.  No need to ride that old pony for much, other than to note that the idea of war for something other than greed is a relatively new concept in human history.  Of course, like any other good idea, all it takes are a few greedy men to find the loop holes and discover new and interesting ways of making a pacifistic religion into a tool for conflict (see the Crusades and the Thirty Years War for details).

My doctoral work, along with my first book, The UnCivil War, focused several chapters on the outgrowth of the just war concept--the treatment of captured prisoners of war.  In my case studies, I found that officers in the Union Army ran into a very large, and very difficult problem at the beginning of the conflict:  What do you do with captured 'unlawful combatants?'  Federal troops were capturing guerrillas who ostensibly were part of the defense forces of the Confederacy, but did not possess uniforms, flags, and other accouterments of conventional armies, and tended to fight using the method of the irregular warrior--ambush, hit-and-run raids, and waylaying small groups of stragglers--all of which were anathema to the Union Army leadership.  If this sounds familiar to anyone who has happened to keep track of world events since 2001, good for you--it is literally the same problem and issue.  How do you define a combatant and a non-combatant?

The solution was found in Lieber's Code, published in the Union Army as General Orders Number 100, in 1863.  Francis Lieber was the most famous jurist of his time, and in a letter to General Henry W. Halleck, outlined the concepts of the legality of war, the status of combatants, and the responsibility of a capturing nation to provide for prisoners.  Lieber was a Unionist and saw that the Civil War was an illegal war, in the fact that that the Confederate States had no right to secede.  Yet, he did not allow that factor to determine the combatant status of the 'detainees.'  In fact, he pressured Halleck (and President Lincoln) to treat captured Confederate soldiers as prisoners of war, when under international law and practice of the time they could have been legally executed as rebels.  For those of you who dismiss such activities, I'd like to point out the punishments given out to Irish rebels in the uprisings of the same era, by the much more 'civilized' British government, not to mention the British reaction to the Indian Mutiny. 

General Orders 100 basically formed the basis of the law of land warfare, and later the Hague and Geneva Conventions.  It defined different categories of armed combatants--from legal combatants (uniformed soldiers), legal non-combatants, and a new category of irregular soldiers, the partisan.  For those of you who remember old newsreels (or watch the History Channel), you can see partisans operating under the Free French in during the liberation of Paris in 1944.  The wearing of an armband depicting the Cross of Loraine and the Tricolor, and the carrying of arms openly, meant that this person was a legal combatant, and eligible for treatment as a POW.  Strangely, even some German units recognized this (while others, such as the Waffen SS, would shoot anyone if given the chance, even uniformed Allied POWs, such as the hundreds of captured Americans executed at Malmedy in 1944) and treated them as POWs.  The result of Lieber's Code, the idea that a person captured on the battlefield has the right to be protected, brought to an end the ancient practice of enslaving or murdering your captives.  This, as much as the concept of Just War, brought  some semblance of sanity to the conduct of that most insane human activity, warfare.

Of course, the Bush Administration happily ignored nearly 200 years of jurisprudence on the subject and invented an new category, the "illegal combatant," to allow them to hold "detainees" at GTMO indefinitely.  As an aside, I was on the Joint Chiefs of Staff during that time, and gave a copy of my book to one of the Office of Secretary of Defense lawyers working the issue.  I don't think it did any good, but we all do what we can at times.

What does any of this do the concept of Just War? 

The idea of Just War was based on Christian theology, aimed at ending conflict between Christian states in Europe.  Fighting the unbeliever, the infidel, or the sectarian was quite all right under that concept.  The rise of liberalism, secularism and popular democracy brought into question the very idea of legal conflict.  Men, not gods or their priests, suddenly had the ability and the responsibility to make rational judgments on the idea of what is right or wrong in regards to warfare.  While nationalism and imperialism did (and still does) much to encourage conflict between states, rational human beings took a great step forward to maturity by saying "we will not execute those who surrender."

As Guantanamo Bay closes down, let us not forget that these 'detainees' are one of two things--they are either prisoners of war, combatants taken in arms against the United States and its allies, or they are criminals under international law, guilty of crimes against not only the Coalition Forces, but against the nation where they were captured or even against the international community as a whole.  If they are the former (POWs) then they must be protected under the Geneva Convention.  This means they cannot be tried for 'war crimes' conducted while under arms.  They cannot be paraded for public view and humiliation. They cannot be denied their religious practices. They cannot be interrogated after processing and internment. Lastly, they must have a process for repatriation back to their nation of origin.

If they are determined to be criminals--what has been the basic argument of both the Bush and Obama administrations--they must have their day in court.  If the crime was against US forces, they must be given the entire body of US laws to protect their individual rights. A right of trial by jury. The right to face their accusers. The responsibility of the government to present clear evidence.  The right to appeal and to have adequate counsel.  If the crime was committed against or in another country, then that country has the right to try them, just like we would do with any normal crime (e.g., extradition).  If the crime was against the international community, then use the Hague Court for the trial.

Regardless, the concept of Lieber's Code still holds true--the capturing nation must guarantee the safety and protection of the captured combatant at all costs.  It is the very basis of international law and treaty, and the release of a suspected 'terrorist' is nothing in comparison to the long term loss of one of the few successful safeguards against the horrors of war.

Secrets, Iran and a Healthy Skepticism

by Robert Mackey

First, a quick introduction and greeting. My name is Robert R. Mackey (not to be confused with the Lede author) and I'm an historian and retired US Army officer.  My specialty, oddly enough, is a strange mix of American Civil War history, history of intelligence, and counter-terrorism.  In the past, I've worked at the National Counterterrorism Center as a strategist, blogged for Huffington Post, and was one of the war planners for the opening phases of Iraqi Freedom in 2002-2003.  I'm currently an independent historian and archivist working in Washington, DC.

Thanks to Eric Martin for the opportunity to join OW as a contributor, and for guilting me into writing for him. It was either that or back down into the galley with the rest of the slaves.

-----

Today, The Times (UK) posted a story about a "Secret Document [that] Exposes Iran's Nuclear Trigger" that detailed what is supposedly "a final key component" of a nuclear weapon. The article is located at "Secret Document Exposes Iran's Nuclear Trigger."

Ok, I'm not a nuclear physicist.  I've never taken a class in physics.  I'm not a Farsi linguist or have lived in Tehran for 30 years.  What I do know is how the global intelligence community works, at least from an insiders view.  It basically has one rule.

Secrets Stay Secret IF YOU WANT THEM TO.

In 1916-1917, Britain was on the verge of losing the Great War.  The French were rocked by mutinies, the bloodbath of the Somme and Ypres had drained Great Britain of men, materials and morale.  Literally the only real hope the Allies had was American entry into the war.  Yet even the sinking of the SS Lusitania in 1915 and the deaths of American citizens, along with the glowing propaganda of American volunteers with the Allies, did little to move the American people toward war.  No, that came when the British released a decoded intercept between the German Ambassador to Mexico and his government outlining a proposed Mexican-German alliance if the US joined the war.  However, the telegram was not released to the American government--it was released to the American press on March 1, 1917.  On April 6, Congress voted for war.

The British had a secret. And they released it to cause the most impact on their main target--the American people.

I am not saying that the same situation exists with this release of information.  In fact, the Iranians may be happily building nuclear weapons as I type, in order to wipe out "Zionism" and bring on the 12th Imam.  I don't know.  But what I do know is that a secret was released, and released at a time when negotiations are being conducted to find a peaceful solution.

Who would release such a secret, which could only be gathered from an agent in Iran? Why risk the life of the agent? Why?

Nations have agreements, as do their intelligence agencies.  The US shares information with the UK, the UK with France, France with Italy and so on.  And many of these countries share information with Israel, Turkey and other nations in the region.

Was this a Mossad plant? Perhaps. Perhaps it was a plant by Syria or Turkey or Egypt, for their own purposes. Or perhaps it was released disinformation by the Iranians to deter an attack on themselves (shades of Saddam's failed miscalculation in telling the world he had CBNR weapons...). No one knows. In the dark world of intelligence, information is a commodity, to be bought, sold and traded.

A healthy skepticism is what is needed.  Raw intelligence is rarely 100% accurate, and when a nation has a lot to gain by leaking secrets, even more care should be taken. 

The Zimmerman Telegram was a piece of factual information. Just because something is factual does not mean that it is the whole story, or that the truth, like lies, can be used to shape opinions and lead nations to war.