05/01/13: The Atlantic has this piece arguing that one of the principal goals in President Obama’s discussion yesterday of the use of chemical weapons in Syria was to remind the American people of the dangers inherent in a rush to war, symbolized by the colossal intelligence failure leading up to the Iraq War. For all the talk of ‘red lines,’ Obama’s remarks served as a reminder that the former Senator from Illinois was one of the staunchest opponents of military action in Iraq and was elected 2008 partially on the platform that that war, launched based on faulty intelligence, was a mistake. Obama was against a rush to war in Iraq 2002 and 2003, and he’s taking a similarly cautious approach in the complex environment of the Syrian conflict. A poll released Tuesday found that majorities are across party lines decidedly opposed to American intervention in Syria right now, with 62 percent of the public agreeing that “the United States has no responsibility to do something about the fighting in Syria between government forces and antigovernment groups.”
03/26/13: Foreign Policy published an article by Phillip Carter and Deborah Pearlstein arguing we've already figured out how to win the legal war on terrorism. The Justice Department in fact has a far better record than the Defense Department in prosecuting and convicting terrorist suspects. Surveillance abroad by military and intelligence agencies, strong allied cooperation, coupled with US prosecution and incarceration -- has now been used successfully in a range of cases. This blended, postwar approach works precisely because the military plays a supporting, not a leading, role. A number of foreign intelligence and law enforcement agencies are far more likely to cooperate with their American intelligence and law enforcement counterparts than they are with the US military. This was true in the Abu Ghaith case for Turkey and Jordan, two key allies in the counterterrorism effort against al Qaeda, both of which cooperated with US intelligence and law enforcement agencies. The same was true in the Harun case, in which Italian authorities gave the suspect to the United States upon assurances he would be prosecuted in civilian court -- and not transferred to Guantánamo Bay or charged before a military commission. Let's be clear: This is not a call for a law-enforcement-only approach. It is not a rejection of military force (including the power to detain) when a public case can be made that force is necessary to US national security and in keeping with our obligations under domestic and international law. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy
02/14/13: Foreign Policy published an article by David Barno. During any military drawdown, equipment, training, force structure, and end-strength will inevitably be sacrificed. But the "crown jewel" that must be preserved in order to be able to fight and win in the years ahead is human capital. Recruiting and retaining highly talented people remains the best guarantor of success in future conflicts. Senior service leaders must take a harder look at themselves in the mirror when defending a 60-year old personnel system. It is 2013, not the Mad Men era of 1963. And sustaining the military preeminence of the United States starts with a uniquely American ideal -- cultivating the best and brightest, so they can lead the force into a dangerous future. It should be the first priority of today's senior military leaders, not their last.
02/09/13: Foreign Policy published an article by John Yoo and Robert Delahunty. In place of the clarity of the rules of war, the administration has thrust American soldiers into the three- and four-factor balancing tests that govern police officers walking the beat in downtown New York. For the first time in the history of American arms, presidential advisers will sit and weigh the "due process" rights of enemy soldiers, judge whether they pose an "imminent" threat, or decide if capture "becomes feasible." Due process rights for the enemy, according to the DOJ memo, will require a careful balancing of the "nature and quality of the intrusion" on the enemy's constitutional rights against "the governmental interests." And Attorney General Eric Holder limits the target to "an operational leader continually planning attacks" against the United States.
01/27/13: The New York Times today features this piece by Charlie Savage discussing Brigadier General Mark S. Martins, the chief prosecutor of the military commissions system who is leading the case against Khalid Sheikh Mohammed and four other Guantánamo Bay detainees accused of aiding the September 11 attacks. General Martins is currently involved in a dispute with the Justice Department as to whether to defend a past conviction by those tribunals on a charge of conspiracy after that charge was invalidated by the US Court of Appeals for the District of Columbia Circuit in a separate case. The dispute involves the thorny question, which has vexed national security law going back to the decision in Hamdan v. Rumsfeld in 2006, as to whether conspiracy to commit a war crime is a standalone offense under the laws of war. On the other hand, Benjamin Wittes at Lawfare argues the dispute between General Martins and DOJ has less to do with substantive questions about the laws of war and as more about tactical legal positions. Both pieces are worth a read.
January 27, 2013 at 11:42 AM in Judiciary / Cases, Executive Branch, Law Enforcement / Criminal Law, Military, Terrorism / Counterterrorism, International Law / Law of War / Human Rights, Constitutional Law, Detainees / Guantanamo, Terrorist Finance / Material Support, Commentary / Opinion, Analysis | Permalink
01/11/13: The New York Times published an article by Jennifer Daskal arguing that we should keep Guantánamo open. Guantánamo in 2013 is a far cry from Guantánamo in 2002. Thanks to the spotlight placed on the facility by human rights groups, international observers and detainees’ lawyers, there has been a significant, if not uniform, improvement in conditions. The political reality is that closure of Guantánamo is unlikely to happen anytime soon, and if it did, it would do more harm than good. We should instead focus on finding places to transfer those cleared to leave the facility and, more important, on defining the end to the war.
11/26/12: The New York Times features an op-ed by former Israeli diplomat Yossi Beilin arguing that the United States and Israel should support the Palestinian Authority's expected bid for recognition by the United Nations General Assembly, and ultimately their drive for statehood. Beilin points out that Palestinian President Mahmous Abbas' Fatah faction, which governs the West Bank, favors the establishment of a Palestinian state alongside Israel - ostensibly Israel's goal - and that opposing him will only strengthen the extremist group Hamas, which rules Gaza and aims to destroy Israel. "It is paradoxical that Israel’s current government is so vehemently opposed to Mr. Abbas’s bid for recognition," Beilin says. "After all, it was 65 years ago this week that the Palestinians and their friends in the Arab world expressly rejected United Nations General Assembly Resolution 181, which recognized the need to establish a Jewish state alongside an Arab state in the former British Mandate territory of Palestine. Now, the Palestinians are admitting their mistake and asking the same assembly to recognize a state of Palestine alongside Israel." Supporting that bid will serve the interests of both Israel and the United States.
08/07/12: The Council on Foreign Relations features a piece by Ed Husain discussing how invaluable al-Qaeda has been in aiding the rebel Free Syrian Army (FSA) in their effort to overthrow the government of President Bashar al-Assad. The Syrian rebels would be immeasurably weaker today without al-Qaeda in their ranks. By and large, FSA battalions are tired, divided, chaotic, and ineffective. Feeling abandoned by the West, rebel forces are increasingly demoralized as they square off with the Assad regime’s superior weaponry and professional army. Al-Qaeda fighters, however, bring discipline, religious fervor, battle experience from Iraq, funding from Sunni sympathizers in the Gulf, and most importantly, deadly results. The unspoken political calculation among Western policymakers appears to be to get rid of Assad first – weakening Iran’s position in the region – and then deal with al-Qaeda later.
08/04/12: The Washington Post features an op-ed by Rajiv Chandrasekaran that takes Barack Obama and Mitt Romney to task for seemingly having forgotten the Afghanistan War on the campaign trail. There are still almost 80,000 US troops in Afghanistan, and each month brings a few dozen home in coffins — more than 2,000 since 2001. Hundreds more return on medical evacuation flights, many of them without a limb. The war will cost taxpayers more than $100 billion this year. The Taliban, which enjoys sanctuary in nuclear-armed Pakistan, continues to conduct devastating attacks. But you wouldn’t know any of it from listening to President Obama and Governor Romney. Because even if voters wanted to confront the war (and they don’t), each candidate would still have his own motives to run from it.
07/22/12: The New Yorker has this thought-provoking interview by Amy Davidson with former CIA officer Jose Rodriguez, whose book Hard Measures: How agressive CIA actions after 9/11 saved American lives argues that harsh (or torturous, if you prefer), interrogation techniques are necessary to protect the United States. Rodriguez spent more than thirty years with the CIA, eventually serving as the director of its Counterterrorism Center. He was involved in the Agency’s detention-and-interrogation program, which included holding prisoners in black sites and waterboarding them. The interview is especially worth reading side-by-side with an earlier interview Davidson did with Ali Soufan, a former F.B.I. agent who led the investigation into the bombing of the U.S.S. Cole and into events surrounding 9/11. His view on these techniques is diametrically opposed to that of Rodriguez.
H/T Neal R. Sonnett
07/19/12: The Atlantic has this post from Conor Friedersdorf arguing that the methodology used by counterterrorism expert Peter Bergen to count civilian casualties in drone strikes is flawed. Bergen, whose analysis with the New America Foundation has been cited by many media outlets including us, has concluded that civilian casualties have dropped dramatically this year in Pakistan. Friedersdorf argues that Bergen and others are repeatedly overstating the conclusions that can be draw from their research. The dispute boils down to a question of the reliability of Bergen's sources.
The pieces make for interesting reading even though, for me at least, Friedersdorf's analysis does little to shake my view that this appears to be the best method of warmaking we've found in recent years. That's because the argument isn't really over Bergen's methodology (or the number of civilians killed in drone strikes for that matter) as much as the same argument Friedersdorf and others have been making that drone warfare is little more than extrajudicial killing without due process of law. This argument has some merit, but I still find it hard to believe that, at least as a legal matter, targeting enemy combatants with drones is different than targeting enemy soldiers, which doesn't require due process under the law of war. It's true that a terrorist doesn't wear a uniform, but after all that just makes his belligerent acts violations of the laws of war, and that certainly shouldn't entitle him to greater protection than lawful combatants in uniform who, again, can be killed without due process.
--Isaac Levey, CNSL research assistant
07/18/12: SCOTUSBlog reports a retired federal judge – one of about a dozen given the initial assignment to carry out the Supreme Court’s detainee rights decision in Boumediene v. Bush – on Tuesday criticized the Court for doing nothing to protect that decision from being “gutted” by the US Court of Appeals for the DC Circuit. Former District Judge James Robertson, who began full retirement two years ago, spoke at a symposium in Washington on the “legacy” of Boumediene, which had its fourth anniversary last month. That decision, Judge Robertson said, “called for ‘meaningful review’” of the military’s reasons for holding prisoners at Guantanamo Bay in Cuba. But he contended the DC Circuit hasn’t provided that review, and the Supreme Court has refused to review any of the Court of Appeals’ decisions.
07/18/12: The LA Times features an op-ed by Doyle McManus arguing that our political leaders should be paying more heed in public discussions to issues of foreign policy and warmaking. About 87,000 Americans are still fighting in Afghanistan, and some are likely to stay past 2014. We’re at war in neighboring Pakistan too, mostly using unmanned drones but with a handful of people on the ground. US drone and special operations forces are also waging attacks in Yemen and Somalia, operations big enough that President Obama felt compelled to acknowledge them publicly last month in a letter to Congress. McManus argues that, at the very least, President Obama and Governor Romney owe the American people some discussion of these issues, and what their plans would be should they win the election this November.
07/17/12: The Huffington Post features an op-ed by Center alumnus Robert Friedman discussing the use of drones for domestic purposes, from everything from surveillance to national defense to emergency preparedness and first response teams. Friedman acknowledges the great potential drones have to improve our lives, but says the process by which their use is now approved by the Federal Aviation Administration (FAA) lacks crucial safeguards. But it's not too late, he says for the agency to put in place sensible privacy and civil liberties protections to keep pace with an era of vast proliferation, whether through rulemaking or legislation. By so doing, we can uphold the great promise of drone technology in our modern society, while minimizing interference with the liberty.
07/16/12: The New York Times has a piece discussing the case being made by some philosophers and political theorists that drone warfare, despite the controversy around it, may actually be a more humane, moral way to wage war than any we have yet discovered. “I had ethical doubts and concerns when I started looking into this,” said Bradley J. Strawser, a former Air Force officer and an assistant professor of philosophy at the Naval Postgraduate School. But after a concentrated study of remotely piloted vehicles, he said, he concluded that using them to go after terrorists not only was ethically permissible but also might be ethically obligatory, because of their advantages in identifying targets and striking with precision.
07/16/12: The Guardian has this interview with cyberwarfare expert John Arquilla in which he argues that instead of prosecuting hackers, the United States should recruit them to assist our efforts in the war on terror. The brilliance of hacking experts could be put to use on the United States' behalf in the same way as German rocket scientists were enlisted after World War II, said Arquilla, a defense analyst at the US Naval Postgraduate School in Monterey, California. Arquilla, who invented the term cyberwarfare two decades ago, said a few master hackers had already been recruited but more were needed. He acknowledged that many dabbled in illegal or questionable acts, but noted that Wernher von Braun, Hitler’s top scientist, was put to work on American rockets and space programs.
H/T to John-Michael Cummings
07/12/12: Lawfare has this post by Benjamin Wittes on a court filing just made by Guantanamo client Yasein Khasem Mohammad Esmail. Esmail previously lost his habeas case, and according to the filing, the government is now taking the position that he can no longer meet with his lawyers under the protective order that governed his case, because the case has been terminated. Instead, Esmail says, the government is insisting as a condition of continued access that the lawyers sign a highly-restrictive memorandum of understanding. The post has an e-mail from Esmail’s lawyer explaining his position, to which Wittes gives a brief response.
07/02/12: The Wall Street Journal’s Law Blog features a post by Chelsea Phipps discussing the feasibility of an indictment by the International Criminal Court (ICC) against Syrian President Bashar al-Assad. There are many challenges to such a course. It’s not clear, for instance, that the ICC’s jurisdiction stretches that far. Syria signed but didn’t ratify the Rome Statute, the treaty that established the ICC. The ICC has jurisdiction over crimes committed in the states that have ratified the treaty, but states that are signatories are obligated to refrain only from “acts which would defeat the object and purpose” (unless they declare they don’t intend to ratify). To overcome the limits of its jurisdiction, an ICC indictment of President Assad would require a Security Council referral. With Russia and China on the Council, this is highly unlikely.
06/28/12: Lawfare features a post by Steve Vladeck discussing how much difficulty plaintiffs have had in suing the US government over post-September 11 governmental abuses. Vladeck argues the courts have created a “national security canon,” a body of rules unique to national security cases that, at least thus far, all cut against allowing relief in suits that might otherwise be able to proceed to judgment. The essay suggests that as the national security canon becomes more deeply ingrained, the likelihood increases that it will expand into contexts other than those in which it has thus far been recognized.
06/24/12: The New Republic features an essay by Harvard law professor Jack Goldsmith contrasting the recent spate of intelligence leaks (arguably more like floods or geysers) from the intelligence community with the complete secrecy that still prevails at the United States Supreme Court, even as the whole country awaits the Court's ruling next week on the constitutionality of the Patient Protection and Affordable Care Act. Indeed, not since 1986 has a news outlet reported a Supreme Court decision before the Court released it. Goldsmith points out that in the Court there are far fewer people who know things and thus less opportunity for information to leak, but moreover, he concludes, the contrast can best be explained by the vast difference in incentives for leaking in the two institutions.
06/23/12: The Washington Post features an op-ed by David Ignatius discussing the process of leaking and trying to put the recent outrage over intelligent leaks in context. He points out, first, that this is something every administration has done, and that the recent information published about cyberattacks against Iran contained some stories that took place before President Obama was in office and could only have been known (and thus leaked) by operatives in George W. Bush's administration. He also points out that rather than leakers simply going to reporters, a leak often begins with the reporter getting his information some other way and asking his source to corroborate it, or for clarification. At that point, since the reporter is likely to go to press even without the source's cooperation, the source cooperates to put the story in the best light he can.
06/17/12: Slate features an op-ed piece by Fred Kaplan arguing that it is entirely appropriate for President Obama to exercise direct control over the so-called ‘kill list’ of suspected terrorists targeted by drone attacks. Kaplan points out that for such an extraordinary occasion, ripe with moral issues and potential diplomatic consequences, it is properly the President’s call, not the CIA director’s or the nearest four-star general’s. The disclosure of Obama’s ‘kill list,’ Kaplan says, should be reassuring. Not only are people – trained, authorized personnel – very much in control of what the drones do; but in the most sensitive cases, the ultimate decision is made, in a very deliberate fashion, by the President of the United States.