The Obama Administration has embraced the Bush doctrine, or at least the preemption part of the Bush doctrine. According to news reports about the Justice Department's memo on drone strikes, the Obama Administration bases its policy on an expansive interpretation of the laws of war, which allow countries to act to head off imminent attack. In particular, according to the reporter who broke the story, the Obama Administration bases its legal reasoning by interpreting "imminence" in a flexible way:
"The condition that an operational leader present an ‘imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future," the memo states.
Instead, it says, an "informed, high-level" official of the U.S. government may determine that the targeted American has been "recently" involved in "activities" posing a threat of a violent attack and that "there is no evidence suggesting that he has renounced or abandoned such activities." The memo does not define "recently" or "activities."
This should sound familiar to anyone who has debated American foreign policy for the past decade, for precisely that sort of logic undergirded the Bush Administration's preemption doctrine. Here is the relevant section from Bush's 2006 National Security Strategy (itself quoting from the earlier and controversial articulation in the 2002 National Security Strategy):
If necessary, however, under long-standing principles of self defense, we do not rule out the use of force before attacks occur, even if uncertainty remains as to the time and place of the enemy's attack. When the consequences of an attack with WMD are potentially so devastating, we cannot afford to stand idly by as grave dangers materialize. This is the principle and logic of preemption. The place of preemption in our national security strategy remains the same. We will always proceed deliberately, weighing the consequences of our actions.
Of course, the Bush Administration was excoriated for framing the issue that way, and there arose a lively cottage industry devoted to attacking this aspect of the Bush doctrine. While Obama has tended to get away with things his predecessors could not, I suspect that even he will face some tough questioning now that the overlap with the controversial Bush doctrine is so unmistakable.
The issue is a difficult one, for the applicability of the self-defense principle depends crucially on context. Everyone agrees that if someone is attacking you with a knife, you do not have to wait for the blade to puncture your skin before you can strike at the assailant. And everyone agrees that it is not self-defense to attack someone just because you think there is a dim and distant possibility that one day that person might decide that he wants to attack you even though there is no evidence of such intent today. In the real world of national security policymaking, however, there are abundant hard cases in between those easy calls and those hard cases are what policymakers -- as distinct from pundits -- can't avoid.
The memo reveals the Obama Administration wrestling with these problems and coming to conclusions strikingly similar to those of the Bush Administration. I wonder if Team Obama will be more successful than the Bush Administration was in arguing the merits and logic of the preemption doctrine.
The Organization of American States (OAS) just held its 42nd general assembly in Cochabamba, Bolivia. During the general assembly, Ecuador's President Rafael Correa, in a renewed attack against freedom of the press, sought to block the release the Inter-American Commission on Human Rights' (IACHR) report of press freedom in the Americas.
Freedom of speech is not the only right under fire from Ecuador's leader. For years, Rafael Correa has used all available government resources to concentrate governmental power in his hands. The result has been to hide crimes committed by him or his inner circle. Every time he attacks a journalist, nationalizes a TV station, or leaves unpunished people engaged in drug trafficking, Correa does so knowing that he manipulates the judicial system and intimidates his country's media.
Astoundingly, not long ago Correa said this on television: "The president of therRepublic is not only the head of the executive, but the head of all the Ecuadorian state, and the Ecuadorian state is the executive branch, the legislative branch, the judicial branch, the electoral system, the state comptroller... [and every other major function of the government]." Correa's strategy has been described by Ecuadorian constitutional lawyers as a "de facto coup d'état."
As an example, in May 2011, President Correa called for a referendum to restructure the Supreme Court. Correa's purpose was to dominate the court and the result of the referendum was the replacement of the system through which judges were appointed with a new system controlled by the president through the following mechanism: a new "judicial council" was established, composed of three members, one from the executive, one from congress (where Correa has a majority), and a third from the comptroller's branch -- which also reports to the president.
Correa wasted no time: The new Council has already appointed all twenty-one new judges to the Supreme Court. To no one's surprise, fourteen of the new judges have been former Correa officials, relatives of current cabinet ministers, or peopble involved in controversial, pro-Correa judicial decisions. One of the latter, for example, is Wilson Merino, who as a lower court judge sided with President Correa in a sham defamation lawsuit launched by Correa against the newspaper El Universo. Merino not only ruled for Correa but awarded the president $40 million dollars in "damages." This sentence was later "forgiven" by Correa due to international criticism by international press organizations and the very Inter-American Human Rights Commission that Correa now wants to silence.
As a result of his sycophantic ruling, Merino was appointed to the Supreme Court. This was only possible because Correa shamelessly manipulates the judicial appointments process. This process establishes a series of requirements, qualifications, and tests that the candidates are required to pass in order to be selected. Wilson Merino did not meet the minimum qualifications, but since the three members of the judicial appointments council respond to Correa, Merino's final score was artificially increased, giving him the necessary points for appointment to the Supreme Court, as the president wished.
Freedom-loving Ecuadoreans, however, have not remained silent. Opposition congressmen such as Andres Paez have denounced the executive's manipulation of the judicial appointments system. Congressman Paez has identified at least seven additional judges that have been appointed by similar deceit. President Correa is now openly harassing Congressman Paez due to his public accusations.
An international committee led by former Spanish Judge Baltasar Garzon oversaw the appointment process. Judge Garzon is expected to release a final report shortly concerning the process' transparency and legitimacy. Several members of Ecuador's national assembly have officially advised Mr. Garzon of additional cases of fraud and manipulation.
Correa is attempting to destroy the Ecuadorian judiciary system in three steps. First, he restructured the judicial appointment system in order to control it. Second, by using his control to designate his subordinates, such as Wilson Merino, to the Supreme Court. The third step is under way, and consists of legitimizing the process internationally. The success or failure of Correa's plan depends on Mr. Garzon's forthcoming oversight report and on the international reaction to this scheme. For the sake of Ecuador's liberties, it is necessary that defenders of democracy around the world raise their voices for freedom in Ecuador and that Mr. Garzon teach Correa the difference between representative democracy and autocracy.
Otto J. Reich is president of the consulting firm Otto Reich & Associates LLC. He is a former U.S. assistant secretary of state for the Western Hemisphere, and U.S. ambassador to Venezuela. Follow him on Twitter: @ottoreich
Ezequiel Vázquez Ger is an associate at Otto Reich Associates LLC and collaborates with the non-profit organization The Americas Forum. Follow him on Twitter: @ezequielvazquez
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Sadly, the tragic death of another Cuban dissident hunger striker will not change conditions in that island-prison nor provoke governments to reassess their historical indulgence of the Castro regime's crimes. Business as usual will continue.
In fact, this week, Brazilian President Dilma Rousseff is in Cuba promoting business opportunities for Brazilian companies. She plans no meetings with Cuban dissidents.
But the Jan19 death of 31-year-old dissident Wilman Villar Mendoza will not be in vain. Indeed, when decent people arrive in Cuba to pick through the rubble left by the most oppressive regime this hemisphere has ever seen, his sacrifice -- and that of thousands of Cuban martyrs before him -- will be rightly honored on Cuban soil.
But if there is one immediate purpose that the tragic death of Wilman Villar can serve, it is to put the definitive lie to the currently fashionable meme that Cuba, under Raúl Castro, "is changing."
For example, according to the Associated Press, Cuba just wrapped up a "dramatic year of economic change." The BBC informs us, "Cuba expands free-market reforms," while Reuters adds, "Cuba to free 2,900 in sweeping amnesty."
Frankly, the only thing sweeping Cuba these days -- besides the ongoing state repression -- is the hyperbole in foreign correspondents' dispatches.
I have dealt with Cuba's smoke-and-mirrors reforms in this space before, but to briefly summarize, all interested observers need to know about Cuban "reforms" are two things:
They signify no new recognition of the inalienable rights of the Cuban people by the regime. "Allowing" a few new bits of heavily circumscribed individual economic freedoms is hardly indicative of fundamental change. The relationship between state and citizen remains the same -- although instead of controlling 100 percent of the economy, the regime will now control 99.5 percent.
Secondly, recent changes are not meant to reform the system but to save the system. Allowing Cubans to repair children's dolls outside the purview of the state does not mean Cuba is on the road to a free market; it means the regime is looking for new ways to generate revenue through confiscatory taxes of limited private economic activity.
Raul Castro himself serves as the best spokesman that the regime is not contemplating any kind of fundamental reform. Speaking recently at a party conference, he said, "There has been no shortage of criticism and exhortations by those who have confused their intimate desires with reality, deluding themselves that this conference would consecrate the beginning of the dismantling of the political and social system the revolution has fought for more than half a century."
To be sure, the hyperbole surrounding recent changes in Cuba has an ulterior motive. It is meant to apply pressure on U.S. policymakers to make unilateral changes in U.S. policy, because Cuba is ostensibly "reforming." Thankfully, the Obama administration so far hasn't taken the bait. In fact, last September, the President took the matter head-on, saying, "They [the Castro regime] certainly have not been aggressive enough when it comes to liberating political prisoners and giving people the opportunity to speak their minds."
Indeed, at a time when no quarter is being given to undemocratic regimes in the Middle East and North Africa, the suggestion that the U.S. should lessen pressure on an undemocratic regime ninety miles from our shores strikes a wholly discordant note and is unlikely to be entertained by any serious policymaker. The Cuban people deserve no less than what the peoples of those regions deserve: the freedom to live their lives as they see fit. Clearly, that concept was as alien to Muammar al-Qaddafi as it is to the Castro brothers -- which is why they deserve the same fate.
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Australian citizen and WikiLeaks founder Julian Assange is clearly an "enemy of the United States," as the Wall Street Journal argues, and the Obama administration is rightly considering prosecuting him for espionage. I agree with my colleague Peter Feaver that the disclosure of State Department cables hurts our diplomats' abilities to do their jobs. But a more pressing and complex question is whether the New York Times should be prosecuted as well.
It is a crime to disclose classified information under the Espionage Act of 1917 (see 18 U.S. Code § 793, paragraph e). The Supreme Court upheld its constitutionality in Schenck vs. United States (1919). The Court ruled that "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent." The First Amendment does not protect espionage.
The most famous prosecution under the Espionage Act was the Pentagon Papers case, New York Times vs. United States (1971), in which the Nixon administration attempted to stop the publication of a Department of Defense internal history of the Vietnam War. The Nixon administration lost the case and the New York Times (and others) published the history in full. Since the Pentagon Papers case, administrations have been generally reluctant to prosecute under the Espionage Act both because of the perceived difficulty of winning a conviction and because of general discomfort with the idea of suing the media for the content of what they publish.
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Nouri al-Maliki appears close to a deal that will
put Iraq's Shi'ia parties in power. After seven months of political
wrangling, it would be tempting to believe that any government formed by Iraq's
squabbling political leaders is progress. It is not.
The political slate that garnered the most seats in the parliamentary elections, Ayad Allawi's non-sectarian bloc, ought to have had the first shot at forming a government. Prime Minister Maliki's manipulations of electoral commission findings and superseding of judicial decisions accrued that advantage instead to his second-place finish.
Even with the advantages of incumbency in a system newly empowered and without strong legal constraints, Maliki has been unable to cobble together a coalition. Other parties fear a "soft coup" of Maliki consolidating power and have been unwilling to join a government with him as prime minister.
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Today, 12 August, is the 61st anniversary of the signing of the Geneva Conventions of 1949, the international treaties designed to protect soldiers and civilians during armed conflicts. The treaties became the focus of international attention in 2002 when the Bush administration controversially concluded that al Qaeda and the Taliban were not entitled to their protections. President Obama has reaffirmed America's "commitment" to the Geneva Conventions but has not been specific about how the Conventions apply to al Qaeda and Taliban detainees. To re-assert U.S. leadership with respect to the laws of war, the Obama administration should announce that the United States accepts specific provisions of the Conventions and engage other countries to develop new rules where the Geneva Conventions do not apply.
The 1949 Geneva Conventions consist of four separate treaties originally signed by 59 countries in Geneva, Switzerland. In light of the horrific experiences of World War II, the first three agreements revised previous treaties dating from 1864, 1906, and 1929 that provided humanitarian protections for sick or wounded soldiers on land, sailors at sea, and prisoners of war. The fourth agreement, added in 1949, establishes protections for civilians in conflict zones. The best known of the agreements is the Third Geneva Convention, which provides detailed articles of protection for those who qualify as Prisoners of War (POWs).
The Geneva Conventions apply to conflicts between the 194 countries that are now party to them. Since 1949, three Additional Protocols have been added to the Conventions to provide further protections in light of changes in modern warfare. The United States has long objected to certain provisions in the First Protocol, although it has stated its support for others. President Reagan submitted the Second Protocol to the Senate in 1987, but the Senate has not acted on it. The Bush administration was a driving force behind (and signed and ratified) the Third Protocol, which created an alternative protective symbol (a Red Diamond) for countries (primarily Israel) that do not use the Red Cross or Red Crescent.
Together, the four 1949 Conventions and the three protocols form the bedrock of the international laws of war.
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Secretary of State Hillary Clinton isn't known for gaffes, but when she announced from foreign shores that the U.S. government will sue a state for helping to enforce federal laws, it was kind of a biggie.
The state is Arizona, of course. And at issue is the law it passed in April allowing police to query the immigration status of individuals following a lawful stop, detention, or arrest. As amended, it prohibits consideration of race, color, or national origin and specifies that those suspected of unlawful entry be turned over to federal authorities to determine their status. The bill was a response to Washington's paralysis in enacting meaningful migration reform.
In its response, the administration opted for a political brawl over the more difficult course of pursuing national reforms. On May 19, President Barack Obama stood next to visiting President Felipe Calderón of Mexico when he called for the law to be struck down. Soon after, U.S. Immigration and Customs Enforcement chief John Morton said his agency would not necessarily process individuals referred by Arizona authorities.
Hillary's pronouncement came during the course of a TV interview in Quito, Ecuador following her appearance at the Organization of American States General Assembly in Lima, Peru. On June 8, she told interviewer Andrea Bernal that President Obama feels the federal government should be determining immigration policy, and that the Justice Department will bring a lawsuit against the act. Sounds reasonable enough, you say.
Yet as gaffes go, this is a three-fer. First, while most American citizens know it is the federal government's responsibility to determine and enforce immigration policy, no public servant should fan the flames of internal controversy from a foreign pulpit. If Arizonans are going to get sued by the feds, best they learn about it from officials closer to home.
Second, the Clinton got out ahead of the issue owner-the attorney general. In response, the Justice Department said it was still reviewing the law. Then administration sources scrambled to tell reporters that a decision had in fact been made, but the department needed time to build its case. The facts remain cloudy.
Third, there could have been a teachable moment here. Bad living conditions and porous borders are problems in various parts of the Americas. Just as desperate Ecuadorans seeking employment have found their way illegally to the United States through Central America and Mexico, Ecuador has felt the impact of Colombians fleeing drug violence and guerrilla bands from their native land.
Clinton could have discussed how the United States and its neighbors might benefit from multilateral cooperation to reduce illegal migrant flows, crack down on attendant trafficking, and attack the root problems that make people want to leave home, such as weak rule of law and rigged economies that make life difficult for job-supplying small businesses.
For now, it's hard to tell where Obama's migration policy will end up. It may be that he is developing a reasoned course. But you would never know by remarks that seemed to be mostly about U.S. politics, another agency's authorities, and little about the broader issues in which our neighbors play a major part.
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I have been struck by how the various sides in the war on terror debate have all found justification for their prior positions in the unfolding drama of the Times Square terrorist. Advocates of treating terrorism primarily as a law enforcement problem praise the rapid forensics that caught the suspect (albeit, just barely). Critics point to the near-misses and other troubling details and renew their complaints about the Obama-Holder approach to terrorism.
So far, everyone seems pretty sure that their prior convictions were sound. Alas, I am no exception. It seems to me that the following four points, all of which I already believed, are supported by this case:
It is possible that these and other similar points are merely evidence that I am a victim of confirmation bias, seeing in a new case only those things that confirm what I already believed. If so, I am probably in very good company. At least I am willing to ask: what in this case disproves these four points?
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Abdul Ghani Baradar, the Taliban's putative No. 2 and organizer
of military operations was captured several days ago at a madrassa near the
Pakistani city of Karachi. U.S. and Pakistani intelligence operatives are
interrogating him, according to the New York Times.
This is very good news. First and foremost, a deadly and effective enemy of the United States is no longer able to plan, coordinate, or carry out attacks against us.
It will further isolate other senior leaders, such as Mullah Omar, and cause them to rely on less-trusted replacements. In the last three years, six of the nineteen members of the Taliban senior council have been killed. This is significant progress, and suggests that the United States is beginning to have the kind of intelligence, and the ability to use it to good effect, that will eventually grind down the Taliban.
The surge of NATO troops to Afghanistan, and particularly operations in the Taliban stronghold of Marjah will produce yet more intelligence, as Taliban light up communications networks, are forced to move and therefore can be tracked, their operations in the region are disrupted, their funding streams from drug trafficking reduced, and as Afghan, U.S., and British forces engaged in the fight reassure the population they will be subsequently secure.
Cooperation between Pakistan's Directorate of Inter-Services Intelligence and our CIA looks to have been extensive and beneficial. The BBC cites a senior Pakistani military officer describing the capture as "a joint operation between Pakistan and the United States based on shared intelligence." CIA agents evidently were along on the raid. Such intensive cooperation would be impossible without trust between the two spy agencies, and is difficult to build even among allies of long-standing. Given Pakistan's understandable concern about American fickleness, the cooperation is extraordinary. Those who castigate the Pakistani government as not serious about the fight against the Taliban, or who believe the ISI are insubordinate to their government's direction, will have a difficult time explaining this outcome.
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This New Republic profile by Michael Crowley of U.S. Ambassador Dan Fried, the man charged with finding foreign homes for many of the Guantanamo detainees, is worth reading:
Perhaps half the 240 detainees now in custody will have to be relocated to countries other than their native lands because they risk being tortured there (or worse) upon their return. For Fried, that means shuttling endlessly between foreign capitals to plead for help, and often to be met by extortionist demands and haughty lectures from foreign diplomats. It is grueling work, making the respected career diplomat something like a door-to-door salesman peddling the human equivalent of radioactive waste.
But perhaps the hardest part is handling the obstacles that keep cropping up in Washington itself. First, there's the ticking clock of Barack Obama's pledge to shut Guantanamo by January 2010 -- a bold statement that defied the warnings of advisers who said that, if closing Guantanamo were easy, George W. Bush would have made good on his own stated wishes to do so himself. Then, there's the craven opportunism of members of Congress who want to look tough on terrorism by vowing to block any effort to resettle the wrongly detained here in America. "It is a tough job, to put it mildly," says Fried. Or, as one friend simply commented after the latest round of congressional grandstanding against accepting the detainees, "Poor Dan."
Full disclosure: I worked with Dan for four years at the State Department, and at the risk of making his life even more difficult by singing his praises on this blog, I'll say that he is one of the most impressive and talented Foreign Service Officers I encountered. But more than that, he spent the past four years helping to rebuild America's bridges to our European allies, and rather than doing what any normal person his age would have done -- which was retire to make money, or live out his days in peace, or both -- Dan chose instead to take the single most thankless job in government because he's a great American.
As for the ultimate goal of Dan's job, consider this quote from John Bellinger, who worked as much as anyone to solve this problem in recent years:
Ultimately, says Bellinger, the former Bush official, it may be impossible to find homes in humane countries for the vast majority of the men at Guantanamo. As a fallback, the United States might have to repatriate some of the men to their repressive home countries after all -- which would leave Fried the task of winning promises of good treatment from those governments. "Those are some of the toughest negotiations," says Bellinger, "where we say we have to have high-level, ironclad, specific assurances that [detainees] will not be mistreated, but with some kind of monitoring mechanism."
What is dawning on the Obama administration is that, in the moral interest of closing Guantanamo, they'll have to cut some moral corners elsewhere. This is not a new idea, and it's what makes the prison dilemma so hard. Maybe those "assurances" and "monitoring mechanisms" will hold up. But it's very possible they won't, and to some degree the administration will just have to look the other way, or else Guantanamo will be open forever. Other moral corner-cutting might (and likely will) include holding more detainees in Bagram Air Base, or just killing more of them preemptively on the battlefield so as to avoid the whole problem of detention altogether, as Jack Goldsmith suggested this weekend in the Washington Post. There is no easy or morally straightforward answer.
Poor Dan. Poor us.
President Obama's nomination of Judge Sonia Sotomayor for the Supreme Court got me thinking about this very sharp observation by Reihan Salam last week, after Cheney and Obama made their dueling speeches:
National security has become part of the culture wars, only with Dick Cheney as the new Jerry Falwell. It doesn't matter that Obama is escalating the war in Afghanistan or that he's embraced rendition. To Cheney, Obama's anti-torture stance represents the moral vanity of a naïve one-worlder.
We'll be hearing much more about this new culture clash. During the hearings on Obama's first Supreme Court appointment, Republicans will spend more time hammering the Democratic nominee on Hamdan v. Rumsfeld and Boumediene v. Bush than about Roe v. Wade. At the moment, Obama looks untouchable. But the politics of national security could prove his undoing.
I think this is a shrewd point, and it's the first time I'd read this. Presidential power in detaining, interrogating, and fighting non-state actors is one of the hardest and most contentious constitutional debates, right now and for the remaining future. It's a legal growth industry. It is also becoming a sharp line of division between culture-warring elements in each party, much like Roe.
I suspect Republicans will try to drill down and press on these issues in Sotomayor's confirmation, especially since her opinions on them are less well-defined. But it's a fraught strategy, because it opens Republicans up to the attack that they are accusing a rather sympathetic Hispanic woman of not wanting to protect America. This is a political minefield, especially at a time when Republicans are at risk of losing the Hispanic vote for the foreseeable future.
Say what you will about Vice President Cheney's decision to come out swinging so soon after leaving office, or President Obama's decision to launch a preemptive strike against him today, the speech that each man gave this morning was smart, serious, sober, and civil. Here we had one of the hardest national security issues of our time debated head to head in front of the entire country by the two best advocates for their respective sides. It was a fascinating occasion. And yet I am left thinking, now even more than before, that this is an argument that will never end, for two reasons: facts and fear.
One thing that rubbed me the wrong way about Obama's speech was how dismissive he was of fear and the people who rightly felt it (and still do). The decisions made after 9/11, he said, were "based upon fear rather than foresight," as if that alone discredits them. Cheney and others are "fear-mongering" by reminding the voting public that there are people out there who want to kill us, and that Americans differ over how to prevent that from happening. The truth is, fear is a human emotion, and thus an inherently political issue. Obama and company are perfectly willing to play on people's fears when it comes to jobs, or health care, or the environment. People are legitimately afraid for those things, just as they are for their security. And one purpose of policymaking is to assuage those fears.
Everyone was afraid after 9/11, for one good reason: a lack of facts -- about whether more attacks were coming, and if so, how, and when, and from where, and by whom. Uncertainty is the greatest fear of all, and like it or not, in the weeks after 9/11, that was the climate in which new policies had to be made on a host of hard problems for which there were few precedents, legal or historical. Cheney and others contend that those policies worked. They generated facts, and those facts saved lives. And if only Obama would release the CIA memos that supposedly lay out what was learned, the American people could see those facts for themselves and draw their own conclusions about "enhanced" interrogation.
Would that settle things once and for all? Somehow I doubt it. For when it comes to intelligence, facts are strange things.
Cheney himself acknowledged today that some people who have reviewed the CIA memos think they are "inconclusive." Others agree. In time, it's easy to imagine there will be other memos, if there aren't already, that look at the same record of "enhanced" interrogations and the same resulting intelligence and yet draw the opposite conclusion from the CIA, which is after all justifying a CIA program. I'm not sure we will ever be able to say with absolute certainty that one specific "enhanced" interrogation led to the disruption of a specific terrorist plot that definitely would have killed Americans. With any luck, the Senate Intelligence Committee's comprehensive investigation of this issue will reach firm conclusions. But I'm just not sure intelligence works this way, that it's this conclusive. It's like pulling one strand of a tightly knit sweater and saying it is the decisive thread holding the whole thing together. And of course, even if you were able to corroborate that judgment, you still wouldn't be able to prove the negative -- that this piece of intelligence could not have been gained through other, less harsh means.
This is what I mean by an argument without end. For all of the facts we now have, and those that may still emerge, I doubt they will convince the American public decisively to side either with Obama or Cheney. And where there is uncertainty there will continue to be fear. This helps to explain the recent paradoxical findings from a major Gallup poll that a slight majority of Americans believe both that "enhanced" interrogations were justified and that past instances of their use should be investigated for misconduct.
Fear isn't going anywhere. The question is, how best to manage and assuage it while not exploiting it.
I don't fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney's current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush's stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney's argument is with Bush as much as it is with Obama.
What does make me fearful, though, is the way the White house has handled this entire thing -- deciding to release the Justice Department memos, but saying there would be no prosecutions, but then reversing and saying, actually, there may be some prosecutions after all. Obama said he released those memos because the information they contained was already widely known. Well, that works just as well as an argument for not releasing them, because nothing would be gained by doing so. We already knew that senior Al-Qaeda terrorists had been waterboarded; how many times it was done is just a detail, gory though it is. What the release of those memos did accomplish, though, was to greatly exacerbate the fear on the part of our national security professionals. And here, I think, Cheney gets it right:
[A]t the CIA, operatives are left to wonder if they can depend on the White House or Congress to back them up when the going gets tough. Why should any agency employee take on a difficult assignment when, even though they act lawfully and in good faith, years down the road the press and Congress will treat everything they do with suspicion, outright hostility, and second-guessing?
I would add that this applies to the military as well.
The debate over "enhanced" interrogation, the rule of law, and national security will never end. But I fear the tragedy is just beginning. Before 9/11, America's counter-terrorism policies suffered from excessive caution and risk-aversion. After 9/11, that pendulum swung too far in the other direction, toward what Cheney once called "the dark side." Now that pendulum is swinging right back toward the other extreme again -- not because Obama wants it to, or believes it should, or mandated that it must in his policies, but because of unnecessary actions he took without adequate "foresight," and the manner in which he took them. The professionals entrusted to keep America safe now work in fear of taking the risks that their jobs entail. And the people they're charged with protecting still don't have the facts to reach a political consensus on this issue (and likely never will, even if Cheney were to get his way).
This debate may reduce to a low boil, but it won't go away. And when the next attack comes, as everyone believes it inevitably will, we will be right back in the teeth of this thing. It is a fight without end, and I fear it will only get nastier.
The two speeches on counterterrorism today by President Obama and former Vice President Cheney were each, in their way, exceptionally well-crafted addresses showcasing each man's rhetorical gifts. The two addresses repay careful study and comparison. But everything I could say to contrast the style and substance of the two speeches can be gleaned from this pair of quotations from them:
Behind the overwrought reaction to enhanced interrogations is a broader misconception about the threats that still face our country. You can sense the problem in the emergence of euphemisms that strive to put an imaginary distance between the American people and the terrorist enemy. Apparently using the term 'war' where terrorists are concerned is starting to feel a bit dated. So henceforth we're advised by the administration to think of the fight against terrorists as, quote, 'Overseas contingency operations.'
After 9/11, we knew that we had entered a new era -- that enemies who did not abide by any law of war would present new challenges to the application of the law; that our government would need new tools to protect the American people, and that these tools would have to allow us to prevent attacks instead of simply prosecuting those who try to carry them out....
Now let me be clear: we are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.
Before tomorrow's battle royale of speechmaking between President Obama and former Vice President Cheney regarding the conflict formerly known as the War on Terror, make sure you first check out Jack Goldsmith's spot-on piece in the New Republic. It's a must-read:
Former Vice President Cheney says that President Obama's reversal of Bush-era terrorism policies endangers American security. The Obama administration, he charges, has "moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11." Many people think Cheney is scare-mongering and owes President Obama his support or at least his silence. But there is a different problem with Cheney's criticisms: his premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric. This does not mean that the Obama changes are unimportant. Packaging, argumentation, symbol, and rhetoric, it turns out, are vitally important to the legitimacy of terrorism policies.
Also, over at AEI's great new blog, Danielle Pletka makes a good case for why Obama, despite running the "savviest information ops of any White House in modern history," still has his work cut out for him tomorrow.
This will be very interesting...
One other consequence of the declassification of the Justice Department opinions and the revelation of the CIA interrogation program is a debate on the effectiveness of these methods. Some of my friends are troubled, because they have been told so often that these methods work.
I will have more to say on the topic of effectiveness later. But for now, I urge those following this controversy to read the op-ed piece published in the New York Times today by former FBI special agent Ali Soufan. I met and interviewed Soufan in the course of my work at the 9/11 Commission, while he was still doing important work at the FBI. From my commission work, my fellow staffers and I had direct knowledge about several of the specific assertions Soufan makes in this piece: about Abu Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed. My fellow staffers and I considered Soufan to be credible. Indeed, Soufan is fluent in Arabic, and he seemed to us to be one of the more impressive intelligence agents -- from any agency -- that we encountered in our work.
Soufan states, accurately, that some of the CIA claims reprinted in the Justice opinions (and recently repeated in the media) are demonstrably false or overstated. Some of the very claims that Soufan describes were also used, while I was in government, in CIA memos defending the program that were submitted to the White House. Therefore, the declassification of those memos, as Vice President Cheney and others have called for, would only raise questions that would have to be answered with still more disclosures. The Senate Select Committee on Intelligence appears to be trying to sort this out.
To be fair to the program's proponents, many successful intelligence cases are accompanied by rival claims about credit, arguments about which agent or which source provided the key information. That is natural and healthy. And sometimes both sides can be right: a successful stream can have many tributaries. But Soufan's piece is a reminder to be wary of such claims, and especially wary about claims on the key point: whether the extreme techniques were necessary to get satisfactory results.
Among the many hidden costs to intelligence collection are ones like this point, which Soufan makes: "An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him." At the 9/11 Commission, we noticed this too. At the time (late 2003), my commission colleagues and I could not understand why this agent was not helping to question KSM. This was part of broader concerns we had about the substantive quality of the interrogations. I raised the issue in writing with the CIA's General Counsel in our efforts to dig deeper into the way the interrogations were being conducted -- a point that I mentioned in this previously disclosed memo.
FBI Director Robert Mueller has said publicly that he does not believe that coercive techniques made the difference in averting any planned terrorist attacks against the United States. Mueller has sweated the details of innumerable leads and cases over the last eight years. So, though he may or may not be right, his opinion is entitled to some attention, and it is not self-serving.
I first gained access to the OLC memos and learned details about CIA's program for high-value detainees shortly after the set of opinions were issued in May 2005. I did so as Secretary of State Condoleezza Rice's policy representative to the NSC Deputies Committee on these and other intelligence/terrorism issues. In the State Department, Secretary Rice and her Legal Adviser, John Bellinger, were then the only other individuals briefed on these details. In compliance with the security agreements I have signed, I have never discussed or disclosed any substantive details about the program until the classified information has been released.
Having been the executive director of the 9/11 Commission, I'm aware of what some of these captives did. The Commission wondered how captives were questioned (for details on that, see this previously disclosed report), and the matter is now the subject of a federal criminal investigation by special prosecutor John Durham. Nonetheless, the evidence against most -- if not all -- of the high-value detainees remains damning. But the issue is not about who or what they are. It is about who or what we are.
Based on what had earlier been released, I have offered some general views on "Legal Policy for a Twilight War." With the release of these OLC memos, I can add three more sets of comments, each of which could be developed at much greater length.
1. The focus on water-boarding misses the main point of the program.
Which is that it was a program. Unlike the image of using intense physical coercion as a quick, desperate expedient, the program developed "interrogation plans" to disorient, abuse, dehumanize, and torment individuals over time.
The plan employed the combined, cumulative use of many techniques of medically-monitored physical coercion. Before getting to water-boarding, the captive had already been stripped naked, shackled to ceiling chains keeping him standing so he cannot fall asleep for extended periods, hosed periodically with cold water, slapped around, jammed into boxes, etc. etc. Sleep deprivation is most important.
2. Measuring the value of such methods should be done professionally and morally before turning to lawyers.
A professional analysis would not simply ask: Did they tell us important information? Congress is apparently now preparing to parse the various claims on this score -- and that would be quite valuable.
But the argument that they gave us vital information, which readers can see deployed in the memos just as they were deployed to reassure an uneasy president, is based on a fallacy. The real question is: What is the unique value of these methods?
For this analysis, the administration had the benefit of past U.S. government treatment of high-value detainees in its own history (especially World War II and Vietnam) and substantial, painful lessons from sympathetic foreign governments. By 2005, the Bush administration also had the benefit of what amounted to a double-blind study it had inadvertently conducted, comparing methods that had evolved in Iraq (different Geneva-based rules, different kinds of teams) and the methods the CIA had developed, with both sets being used to against hardened killers.
Opponents should not overstate their side either. Had a serious analysis been conducted beforehand (it apparently was not), my rough guess is that it might have found that physical coercion can break people faster, with some tradeoff in degraded and less reliable results.
Which underscores the importance of moral analysis. There is an elementary distinction, too often lost, between the moral (and policy) question -- "What should we do?" -- and the legal question: "What can we do?" We live in a policy world too inclined to turn lawyers into surrogate priests granting a form of absolution. "The lawyers say it's OK." Well, not really. They say it might be legal. They don't know about OK.
3. The legal opinions have grave weaknesses.
Weakest of all is the May 30 opinion, just because it had to get over the lowest standard -- "cruel, inhuman, or degrading" in Article 16 of the Convention Against Torture. That standard was also being codified in the bill Senator John McCain was fighting to pass. It is also found in Common Article 3 of the Geneva Conventions, a standard that the Supreme Court ruled in 2006 does apply to these prisoners. Violation of Common Article 3 is a war crime under federal law (18 U.S.C. section 2441), a felony punishable by up to life imprisonment. (The OLC opinions do not discuss this law because in 2005 the administration also denied the applicability of Common Article 3.)
The OLC holds, rightly, that the United States complies with the international standard if it complies with the comparable body of constitutional prohibitions in U.S. law (the 5th, 8th, and 14th Amendments). Many years earlier, I had worked in that area of the law. I believed that the OLC opinions (especially the May 30 one) presented the U.S. government with a distorted rendering of relevant U.S. law.
At the time, in 2005, I circulated an opposing view of the legal reasoning. My bureaucratic position, as counselor to the secretary of state, didn't entitle me to offer a legal opinion. But I felt obliged to put an alternative view in front of my colleagues at other agencies, warning them that other lawyers (and judges) might find the OLC views unsustainable. My colleagues were entitled to ignore my views. They did more than that: The White House attempted to collect and destroy all copies of my memo. I expect that one or two are still at least in the State Department's archives.
Stated in a shorthand way, mainly for the benefit of other specialists who work these issues, my main concerns were:
The underlying absurdity of the administration's position can be summarized this way. Once you get to a substantive compliance analysis for "cruel, inhuman, and degrading" you get the position that the substantive standard is the same as it is in analogous U.S. constitutional law. So the OLC must argue, in effect, that the methods and the conditions of confinement in the CIA program could constitutionally be inflicted on American citizens in a county jail.
In other words, Americans in any town of this country could constitutionally be hung from the ceiling naked, sleep deprived, water-boarded, and all the rest -- if the alleged national security justification was compelling. I did not believe our federal courts could reasonably be expected to agree with such a reading of the Constitution.
By Phil Zelikow
I will have more to say soon about interrogation policies in the Bush administration and the recently renewed debate over them, but for now I'll just say this: I am not eager to see any government officials prosecuted for crimes because of their zeal to protect their country. But crimes committed for worthy motives are still crimes, and we have institutions to sort this out.
So has anyone beside me found it troubling that President Obama is making announcements on who should be prosecuted for possible crimes? Whatever one's view of the matter, didn't the administration ardently announce its dedication to depoliticizing the Department of Justice? So why is it proper for the president to tell Attorney General Eric Holder what he should conclude?
There seem to be four possibilities here:
1. No unlawful conduct occurred. That judgment should, at least initially, be made by the Attorney General, free from political influence.
2. Unlawful conduct occurred, but the suspects have a credible defense -- that before undertaking their unlawful conduct, they relied in good faith on authoritative (though in retrospect, mistaken) legal opinions that the planned conduct would be lawful, and these opinions were also issued in good faith. Again, that judgment should be made, at least initially, by the attorney general, free from political influence.
3. Unlawful conduct occurred, and the legal opinions are not an adequate defense. Federal prosecutors, regular or specially appointed, then go to work. Again, the prosecutorial judgments should be free from inappropriate political influence.
4. Unlawful conduct occurred, and the legal opinions might not be an adequate defense. But President Obama decides to issue a blanket pardon for any possible criminal activity.
Or you have option #5, in which the president does not exercise his pardon power but instead, in effect, tells his attorney general what conclusions he should reach about whether federal officials broke the law.
Can you imagine what folks would say if a Republican president exercised option #5? I wish President Obama would just play this straight. He also does no favor to suspects if he politicizes the question of their innocence.
Shadow Government is a blog about U.S. foreign policy under the Obama administration, written by experienced policy makers from the loyal opposition and curated by Peter D. Feaver and William Inboden.