The American Bear

If you want a simple way to understand why America’s military tribunals have been such an unmitigated disaster since President George W. Bush first authorized them in the autumn of 2001, you need only consider what happened Monday in military court down at “Camp Justice” at the Guantanamo Bay Navy Base in Cuba.

In the middle of a hearing for Khalid Sheikh Mohammed and four other terror suspects, men who have lingered in detention now for nearly 10 years without trial, as a defense attorney was arguing about getting brief access to the CIA’s “dark sites” where some of these men may have been tortured, the audio and video feed of the proceedings suddenly were blocked to the public. Journalists and others faced about three minutes of white noise before the feed was restored. Censorship! They cried.

Well, not exactly. A form of this secrecy happens all the time in regular civilian court—it’s called a sidebar—and it’s necessary in some cases to shield material information from the jury or the public. Federal trials involving sensitive or classified information also see accommodations made to keep certain information from public view inside the courtroom. And at these tribunals in particular the government has long established a broadcast monitoring procedure—including a 40-second tape delay—so that classified material (like, say, about how and where we tortured detainees) won’t inadvertently be released to the public.

But what was different about this episode—and what makes it such an important moment in the sorry history of the Guantanamo tribunals— was that even the presiding judge, Army Col. James Pohl, didn’t know who had blocked the feed on Monday— or why. He had lost control over his own courtroom. Later that day, in open court, he said: “If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation, then we are going to have a little meeting about who turns that light on or off.” That was on Monday. On Tuesday, after conducting an investigation into the episode, Judge Pohl declared that the feed should not have been turned off—the defense attorney had merely mentioned “the caption in a particular appellate exhibit that is unclassified”— but the judge did not disclose to the public who turned off the feed or why. Later, we learned that the feed was disrupted by the “original classification authority,” most likely the CIA.

The idea that a trial judge has control over his courtroom is about as sacrosanct a notion in American law as you can find. And even though military judges traditionally have had to serve conflicting masters (the law, their superior officers, etc.) the idea that a litigant would have the power to control the courtroom without the judge’s knowledge or consent goes to the heart of the problem with our current tribunals. A trial judge who does not have the authority to control his own courtroom, who is subject to the whims of the very officials whose charges against the detainees must be fairly weighed, cannot be the sort of independent judge which the Constitution requires and which justice demands. It’s not Judge Pohl’s fault. By Congress, by the Pentagon, by the Obama Administration, by the CIA, he’s been dealt a hand no truly independent judge could play. That’s just another big reason why these tribunals are doomed to fail, in the court of world opinion if not before the United States Supreme Court, no matter how many convictions they ultimately gin up.

“[No] senator will ask Chuck Hagel about his presence during the machine-gunning of an orphanage in Vietnam’s Mekong Delta or the lessons he might have drawn from that incident. Nor is any senator apt to ask what Hagel might do if allegations about similar acts by American troops emerge in Afghanistan or elsewhere. Nor will some senator question him on the possible parallels between the CIA-run Phoenix Program, a joint U.S.-Vietnamese venture focused on identifying and killing civilians associated with South Vietnam’s revolutionary shadow government, and the CIA’s current targeted-killing-by-drone campaign in Pakistan’s tribal borderlands. Nor, for that matter, is he likely to be asked about the lessons he learned fighting a war in a foreign land among a civilian population where innocents and enemies were often hard to tell apart.”

… Chuck Hagel and his younger brother, Tom, fought together in Vietnam in 1968. The two are believed to be the only brothers to have served in the same infantry squad in that war and even more remarkably, each ended up saving the other’s life. “With Chuck, our troops will always know, just as Sergeant Hagel was there for his own brother, Secretary Hagel will be there for you,” the president said.

Largely unnoted was the falling out the brothers had over the conflict. After returning home, Tom began protesting the war, while Chuck defended it. Eventually, the Hagel brothers reconciled and even returned to Vietnam together in 1999. Years before, however, the two sat down with journalist and historian Myra MacPherson and talked about the war. Although their interpretations of what they had been through differed, it’s hard not to come away with the sense that both witnessed U.S. atrocities, and that Chuck Hagel’s vision of the war is far more brutal than most Americans imagine. That his experience of Vietnam would include such incidents should hardly be surprising, especially given the fact that Hagel served in the 9th Infantry Division under one of the most notorious U.S. commanders, Julian Ewell, known more colorfully as “the Butcher of the Delta.”

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“Guns don’t kill people. People kill people.”

How true. And nuclear bombs don’t kill people. Government leaders who decide to use nuclear bombs kill people. So why have any bans on nuclear bombs? Get one for each member of the family; well, for those over 16 at least.

The crazed and the disturbed will always walk amongst us. What we must do is strive to deny them the facile ability to engage in mass murder. Everything else being equal, if the Connecticut killer’s mother didn’t have an arsenal of guns at home, including an assault weapon, the story would probably have been a very different one. Ah, but I hear you asking – on the left and on the right – so you wanna let the government have all the guns and the people nothing to defend themselves with? To which I reply: Do you really think the people could hold their own in an armed battle with the police and the military? Mass suicide.

In the past decade various important rights and freedoms of Americans have been seriously curtailed by the Bush and Obama administrations. Did the 300 million guns in private hands prevent any of this from happening? No. And the rights and the freedoms were taken away much more by pieces of paper than guns.

I’d be in favor of eliminating all guns except for some law enforcement purposes. But if that is not feasible, the goal should be to have as few guns in circulation as possible. Or just ban ammunition, which would be a lot easier and probably even more effective. It would be a good start toward our cherished national goal of becoming a civilized society. [++]

I know it’s probably easy for Obama supporters, if not members of the Administration, to dismiss the warnings of lawyers who fought within the Bush Administration to cloak our counterterrorism policy as trolling.

But you’d think that as Jack Goldsmith and now John Bellinger raise the same kind of warnings they did with Bush, they’d be treated with the same kind of alarm among the pundit class.

I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo?” This article was not intended as partisan criticism but rather as a cautionary note, based on my own eight years of experience explaining US counter-terrorism policies.

At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration. But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation. This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies. I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law. The Administration is increasingly on the back foot internationally in explaining and defending the legal aspects of the drone program. It needs to step up its efforts.

These are not starry-eyed hippies. They’re solidly conservative lawyers. And yet it seems their warnings are being treated with the seriousness they would if I had made them. [++]

Lanny [Breuer has] adopted a new excuse to deny responsibility for letting the most destructive criminals in the country walk free (note, Lanny appears to be ignorant of SarBox regulations that wouldn’t even require this kind of intent):

“I understand why people are upset,” Breuer said. “But we have 94 U.S. attorneys and they don’t report to me. Not one of them determined that there was a criminal case to be had. These are very complicated cases and they were just simply, on the merits, not cases that could be brought criminally.”

Breuer said Wall Street executives would have been prosecuted if the investigators could have proved criminal intent. “I have the same DNA in all of these cases,” Breuer said. “It’s just not plausible that in one area we would be overly scared and in all the other areas we would be aggressive.”

Well okay then. In this article, Lanny takes or is given credit for the BP pleas, two Medicare cases, 40 corporate cases (by Robert Khuzami, almost all of which resulted in settlements), the La Cosa Nostra take down, and LIBOR “prosecutions” (reportedly DOJ will charge UBS shortly). Of those, I’m only aware of the BP investigation being led by a task force rather than a traditional US Attorney structure. Yet Lanny wants to claim credit for all these prosecutions and settlements, but blame his US Attorneys–all 94 US Attorneys (!) when we’re really talking maybe 4 or 5 who would face a complex bankster case, and really just New York’s Preet Bharara, whom Lanny himself gave jurisdiction over some of the highest profile cases–for not prosecuting the banksters.

It’s not Lanny’s fault the banksters have gone free, you see, it’s the fault of people like John Leonardo, Arizona’s US Attorney, Alicia Limtiaco, Guam’s US Attorney, or Felicia Adams, Northern Mississippi’s US Attorney, all of whom had no hint of jurisdiction in these cases.

This, in spite of the fact that Lanny has repeatedly admitted being personally involved in the bankster cases.

This, in spite of the fact that Lanny did play a leadership role in one of the few cases that had a similar task force structure as BP–the mortgage fraud settlement. In that case, Lanny under-resourced the investigative team, ensuring it would be unable to do adequate investigation to reach adequate settlement. And he didn’t even show up for the big announcement that–basically–the settlement was immunizing the banksters for stealing millions of people’s homes. Somehow, now that it’s time to claim credit, Lanny has forgotten about that willful attempt to help banks bury their crimes.

Lanny has, in the past, clearly admitted to actions that led directly to amnesty for banksters. But in his effort to shore up his reputation as he heads out the door (though not until March 1, unfortunately), he’s gonna blame everyone else for the fact that, on his watch, the most destructive criminals in the country got a pass.

The military judge overseeing the prosecution of Khalid Shaikh Mohammed and four other detainees at Guantánamo Bay, Cuba, accused of aiding the terrorist attacks of Sept. 11, 2001, on Thursday ordered the government to disconnect the technology that allows offstage censors — apparently in conjunction with the Central Intelligence Agency — to block a public feed of the courtroom.

The order by the judge, Col. James L. Pohl of the Army, followed the interruption on Monday of a feed from the military tribunal courtroom in Guantánamo Bay of a pretrial motion in the Sept. 11 case that the public and the media view on a 40-second delay to guard against any inadvertent disclosure of classified information. The interruption brought to light that officials outside the courtroom were monitoring the proceedings and could block the public feed.

“This is the last time,” Colonel Pohl said, that any party other than a security officer inside the courtroom who works for the commission “will be permitted to unilaterally decide that the broadcast will be suspended.”

He added that while some legal rules and precedents governing the military commissions were unclear, there was no doubt that only he, as the judge, had the authority to close the courtroom. While officials may disagree about whether classified information had been improperly disclosed, he made clear he would not tolerate any outside party having control over a censorship button in his case.

“The commission will not permit any entity except the court security officer to suspend the broadcast of the proceeding,” Colonel Pohl said. “Accordingly I order the government to disconnect any ability of a third party to suspend broadcast of the proceeding, and I order any third party not to suspend proceedings.”

The 40-second delay in the closed-circuit broadcast from the high-security courtroom at Guantánamo Bay was instituted to allow a censor to block transmission of the proceedings to the public and reporters if classified information was inadvertently disclosed. But until Monday, there was no public sign that anyone other than the courtroom officer near Colonel Pohl could turn off the transmission. The feed is shown at Fort Meade as well as at a press room at Guantánamo. [continue]

Iran’s crude oil exports in December leapt to their highest level since European Union sanctions took effect last July, analysts and shipping sources said, as strong Chinese demand and tanker fleet expansion helped the OPEC member dodge sanctions.

Exports rose to around 1.4 million barrels per day (bpd) in December, according to two industry sources and shipping and customs data compiled by Reuters on a country-by-country basis and corroborated by other sources and consultants.

The sources said they expected exports to dip in January from the December peak ahead of new U.S. sanctions.

Western sanctions aimed at curbing Iran’s disputed nuclear program [forcing Iran into the petrodollar status quo and ensuring Western hegemony in the hydrocarbon heartlands] halved Iran’s oil exports in 2012 from 2.2 million bpd in late 2011, leading to billions of dollars in lost revenue and a plunge in the Iranian currency. [++]

These days the so-called scramble for Africa runs through Mali, and in two directions. As the British, the Italians, the Germans, the Spanish, the Dutch, the Belgians and the Danish follow the French into northwest Africa, the Africans rush up to meet them, as if these white people were old friends coming to visit, again. Cargo planes ferry French fighters and equipment into the Mali desert, where they search for jihadists – Muslim fighters that are politically indistinguishable from the ones the Europeans and the Americans backed in Libya, and are now arming, in Syria.

If the Mali operation takes much longer – which it certainly will – the United States will assume much of the airlift duties, since no other nation in the world has the capacity to resupply a long war on the African continent. Cracking northern Africa wide open is a job for a superpower – which is fine with the Americans. Don Yamamoto, the deputy assistant secretary of state for African affairs, was hanging around the African Union meeting in Ethiopia, where African officials were handing out orders and directives to other Africans, as if they were actually in charge of something. Yamamoto predicted that “it could take several years” for the Mali mission to completed. “This is only the first phase,” he said. So, what is that mission? Will it take the combined forces of the United States, France, much of the rest of NATO, and of soldiers from all over Africa to defeat, at most, a few thousand jihadists in a treeless desert? Do the Europeans and the Americans really have to stay so long?

Oh yes, said deputy secretary Yamamoto. He claims, “A lot of the rebel groups that are now fighting in the region were under Gaddafi’s troops.” Ah, so that’s how the U.S. will tell the story.

It’s true that many Tuareg nationalists seeking independence for their homeland in northern Mali worked with Gaddafi’s security forces, and emerged from Libya heavily armed. But, no sooner had the secular Tuareg rebellion begun than it was overwhelmed by Muslim fundamentalists – jihadists who were Gaddafi’s sworn enemies. The jihadists, many of them foreigners, could be run out of the cities of Mali and militarily contained with little effort. But, the Tuaregs live there, and always have. It is, therefore, necessary for the United States to claim that the entire Tuareg people – several million of them – are infested with jihadism, and that this will require a long-term Euro-American presence in Mali and the region. [++]

The death of Malik Daud Khan, a Pakistani tribal elder, in a C.I.A. drone strike might have remained widely unremarked upon, lost amid thousands of others analysts have tallied in the American drone campaign, had not the British courts been brought into it.

The drone strike, which killed Mr. Khan and dozens of others at a tribal council meeting in North Waziristan in 2011, spawned a lawsuit that accuses British officials of becoming “secondary parties to murder” by passing intelligence to American officials that was later used in drone strikes.

The case has put a spotlight on international intelligence-sharing agreements that have long been praised by officials as vital links in the global fight against terrorist groups, but that rights advocates criticize as a way for Britain and other European countries to reap the benefits of the contentious drone program without its political costs.

Judges in Britain have yet to decide whether to hear the case, brought forward by Mr. Khan’s son, Noor Khan, a British citizen. (They initially declined, but are considering an appeal that was lodged in January.) It has caused a particular sensation, though, because it raises the prospect of legal liability for European officials by linking them to an American drone campaign that is widely seen as publicly unpalatable, or simply illegal, in their home countries.

In interviews, current and former British government and intelligence officials, some of whom worked closely with the United States after the drone campaign’s inception in 2004, said Britain does provide intelligence to the United States that is almost certainly used to target strikes. Many in Britain’s intelligence community, said one person with detailed knowledge of internal discussions, are now distinctly worried they may face prosecution. [++]

Unless hijacked by those who obsess about Iran and Israel, Chuck Hagel’s confirmation hearings could offer an opportunity for a serious examination of basic U.S. national security policy. Among the issues that ought to (but probably won’t) be discussed are the following.

The principal lessons of the (forgotten) Iraq War and its (soon-to-be-forgotten) Afghan cousin. What are they? How should those lessons apply to U.S. policy going forward?

The posture, capabilities and configuration of the post-Iraq/post-Afghanistan military. What should we expect our military to do? What will that military look like?

The quality of American generalship. Over the course of the past decade or more, it’s been mixed at best. Doing a better job of selecting and developing officers for positions of senior leadership ought to be a priority. What’s the best way to accomplish that?

Using drones as an instrument of targeted assassination. This has emerged as the real signature of Obama’s way of war. Yet apart from killing individuals — to include U.S. citizens — said to be plotting against the United States, what larger purpose does assassination serve? How many people will we have to kill before declaring “mission accomplished”?

… [M]ore disturbing even than the indirect whitewashing of torture is the nationalization of worldview that pervades the film (as well as the media and the political culture). There is no sense whatsoever that those who are killed or tortured might be innocent or have had unheeded grievances or that the American response to 9/11 was killing and wounding many more thousands than had been killed by Al Qaeda, a set of responses in which whole societies are being torn asunder for little or no gain in American security, in effect, massive forms of collective punishment. There is a monumental insensitivity to the sovereign rights of other states, most obviously Iraq, Pakistan, and Afghanistan. The American military is understandably focused on operational effectiveness, while it is less understandable that its political leaders remain oblivious to the rights and wellbeing of others. Implicitly, in the film and in American statecraft the lives of others are simply stage props on the geopolitical stage of political violence. In this sense, objectively considered, the killing of Bin Laden seems little more than a costly and risky venture in vengeance that glorifies a militarist conception of security that can only bring massive doses of grief to societies around the world, and does great harm to the many young Americans being asked to put their mental and physical health in mortal jeopardy for very questionable purposes that are only marginally related to the defense and security of the country.

The Syrian government said that Israeli warplanes had carried out an airstrike inside its territory on Wednesday, raising the risks that the two-year-old civil conflict in Syria could spread beyond the country’s borders.

A statement by the Syrian military said a scientific research facility in the Damascus suburbs had been hit, but the precise target was unclear. Earlier news reports, confirmed by an American official in Washington, said the Israelis were targeting a truck convoy inside Syria that was bound for Lebanon.

It was the first time in more than five years that Israel’s air force had attacked a target in Syria, which has remained in a technical state of war with Israel although both sides have maintained an uneasy peace along their disputed border.

The Syrian statement, carried by state television, said an unidentified number of Israeli jets flying below radar had hit the research facility, killing two people and causing “huge material damage.”

Israeli officials declined to comment on any military action that Israel might have conducted in Syria. [++]

… In this Folies de Pigalle in the desert, Washington will be “leading from behind.” Wise move; shadow wars bypass quagmires. It’s the French – with typical Gallic grandeur – who will remain infatuated with the illusion of soon ruling the Mali desert. In fact they won’t even rule algae in the Niger river, because this will be a protracted nomad war. The prospect of a succession of sandy Dien Bien Phus looms.

And the minute most of Mali’s impoverished population – for the moment in favor of getting rid of AQIM, MUJAO, Belmokhtar’s gang and Ansar ed-Dine – feels the slightest whiff of neocolonial occupation, the French are on their way to meet the American fate in both Iraq and Afghanistan.

It’s enlightening to regard all this under the perspective of President Obama 2.0 administration’s foreign policy, as (vaguely) outlined in his inauguration. Obama promised to end US wars (shadow wars are much more cost-efficient). He promised multi-lateral cooperation with allies (while Washington effectively calls the shots), negotiation (as in our way or the highway) and no new war in the Middle East.

To take the president at his word, this translates into no US war against Syria (just the shadow variety); no Bomb, Bomb Iran (just murderous sanctions); and France gets the Mali prize. Or will it? Zero Dark pulp fiction starts now. [++]

This is mission creep on speed.

Two weeks ago we were told Britain would have no combat role in Mali and we would send just two transport planes. Now we are told the government is sending 350 British military personnel to Mali and West Africa to support French forces.

Prime Minister David Cameron is “keen” for Britain to get more involved in war on a new continent. He sent national security advisor Sir Kim Darroch to Paris to discuss what help Britain could provide. He has personally phoned French Prime Minister Hollande to offer more help and he is “keen to continue to provide further assistance”.

The British government says it is prepared to send a “sizeable amount” of troops to provide military assistance to France. This is how major wars begin. In the early 1960s, the United States started with a few “special advisors”  in Vietnam. More than a decade later it left defeated, with over 50,000 American troops and at least two million Vietnamese killed.

Forgetting historical example is one thing. Ignoring the last few years is extraordinary. The disastrous wars in Afghanistan and Iraq — and the attack on Libya — were presented as humanitarian operations, complete with images of cheering local populations greeting western intervention — soon replaced by the devastation of the countries and huge death toll for the people they were meant to “liberate”.

The spread of the “war on terror” to the Sahel region in Africa is a result of the chaos created by the Libyan intervention. It is also driven by the same motivations as previous wars, the desire to control vital energy reserves and other mineral resources. The region contains some of Europe’s most important energy sources.

The Mali intervention will end with the same results: destruction, loss of life and deep anger against the west.

How long before the presence of thousands of western troops in their old colonial stomping grounds inflames new violence and resistance?

New York City Mayor Michael Bloomberg made headlines over the weekend with his announcement that he has donated $345 million to Johns Hopkins University. Added to his previous donations, the media baron has given his alma mater over $1 billion – the largest charitable contribution to an educational institution in US history.

Bloomberg received plaudits for his generosity by the usual media sycophants. Along with death and taxes, another thing you can count on is being told to be grateful when masters of the universe give away some of their loot (even if none of it goes to you.) As pundits fawned, thousands of New Yorkers – residents of Queens whose homes got damaged by superstorm Sandy – were shivering under blankets in heatless homes in 15° weather because restoring electricity and housing storm victims isn’t one of the mayor’s top priorities.

Disgusting.

This was a man, New Yorkers remember, who wanted the mayoralty so badly that he subverted the people’s will, bribing and bullying the City Council into overturning term limits passed by an overwhelming majority so that he could keep the job a third term.

No one should claim that he didn’t want responsibility for those poor cold slobs out in the Rockaways.

If there’s anything more nauseating than watching this rich pig bask in the glow of his philanthropy while the citizens he is tasked with caring for turn into popsicles, it’s the failure of anyone in the system – columnists, local TV anchor people, even Bloomberg’s political rivals – to call him out. For $345 million the mayor could have put his city’s storm victims up at the Four Seasons for years. [++]

The city will adapt to flooding—but at the expense of the poor?

Your Department of State, right on the cusp of budget time, has released a self-pleasuring “fact sheet” of what it thinks it does with your tax money, helpfully titled “Ten Things You Should Know About the State Department.”

Some of it is over-the-top performance art hilarious, like the unsupported statement that “We directly support 20 million U.S. jobs (No. 1)” and “In South Sudan, Libya and many other countries we worked through various means to foster democracy and peace (No. 3)” But in light of recent personnel moves at State, let’s look at Number 8 in full:

8. We promote the rule of law and protect human dignity. We help people in other countries find freedom and shape their own destinies. Reflecting U.S. values, we advocate for the release of prisoners of conscience, prevent political activists from suffering abuse, train police officers to combat sex trafficking and equip journalists to hold their governments accountable.

Meanwhile, over in reality, the same State Department reassigned its special envoy for closing the U.S. prison at Guantanamo Bay, in another step away from one of Obama’s first campaign promises. Ambassador Daniel Fried (hah hah, his name is really “Fried”) is starting this week as the Department’s sanctions coordinator, according to an internal notice, focusing on governments like Iran and Syria. No one is replacing Fried to persuade countries to resettle Guantanamo inmates approved for release. Instead, those responsibilities will now transfer to the Department’s legal office where the tired Washington-bound lawyers will no doubt welcome the additional workload.

The reduced diplomatic effort comes as a military tribunal holds more hearings into the case of alleged 9/11 mastermind Khalid Sheikh Mohammed and five other defendants who face almost 3,000 counts of murder. They could get the death penalty if convicted.

And as for the last line in Number 8, “equip journalists to hold their governments accountable,” it is fun to note that the military judge presiding over the trial of the five men accused of organizing the Sept. 11, 2001, terrorist attacks declined to explain a mysterious episode in which the audio and video feeds to the proceedings were severed, cutting journalists off from covering the trial. All details of CIA secret prisons and torture are considered classified and are censored from what journalists may hear. A Justice Department lawyer on the prosecution team, said the “original classification authority” reviews the feeds. The authority referred to almost certainly is the CIA in the case of material related to secret overseas prisons. Agency personnel apparently monitor and have a previously undisclosed ability to cut the feed, for freedom.

Jan. 30th, 2013

Yemeni officials say a U.S. drone strike on a car outside the capital of Sanaa has killed at least seven “suspected al-Qaida militants.”

The officials say the drone attack took place Wednesday near the town of Khawlan, some 35 kilometers (20 miles) southeast of the capital. Military officials and tribal witnesses say the car was destroyed, and burnt bodies could be seen inside the wreckage.

Later in the blurb, there is a report of a drone strike yesterday, but I didn’t see any other news reports about it:

… the Interior Ministry raised the death toll from a drone strike on Tuesday from three “suspected militants” to five.

Tuesday’s strike could be related to the events in this post from yesterday.