Tag: Bush administration

Pakistan: More Aid, More Waste, More Fraud?

Pakistan long has tottered on the edge of being a failed state:  created amidst a bloody partition from India, suffered under ineffective democratic rule and disastrous military rule, destabilized through military suppression of East Pakistan (now Bangladesh) by dominant West Pakistan, dismembered in a losing war with India, misgoverned by a corrupt and wastrel government, linked to the most extremist Afghan factions during the Soviet occupation, allied with the later Taliban regime, and now destabilized by the war in Afghanistan.  Along the way the regime built nuclear weapons, turned a blind eye to A.Q. Khan’s proliferation market, suppressed democracy, tolerated religious persecution, elected Asif Ali “Mr. Ten Percent” Zardari as president, and wasted billions of dollars in foreign (and especially American) aid.

Still the aid continues to flow.  But even the Obama administration has some concerns about ensuring that history does not repeat itself.  Reports the New York Times:

As the United States prepares to triple its aid package to Pakistan — to a proposed $1.5 billion over the next year — Obama administration officials are debating how much of the assistance should go directly to a government that has been widely accused of corruption, American and Pakistani officials say. A procession of Obama administration economic experts have visited Islamabad, the capital, in recent weeks to try to ensure both that the money will not be wasted by the government and that it will be more effective in winning the good will of a public increasingly hostile to the United States, according to officials involved with the project.

…The overhaul of American assistance, led by the State Department, comes amid increased urgency about an economic crisis that is intensifying social unrest in Pakistan, and about the willingness of the government there to sustain its fight against a raging insurgency in the northwest. It follows an assessment within the Obama administration that the amount of nonmilitary aid to the country in the past few years was inadequate and favored American contractors rather than Pakistani recipients, according to several of the American officials involved.

Rather than pouring more good money after bad, the U.S. should lift tariff barriers on Pakistani goods.  What the Pakistani people need is not more misnamed “foreign aid” funneled through corrupt and inefficient bureaucracies, but jobs.  Trade, not aid, will help create real, productive work, rather than political patronage positions.

Second, Islamabad needs to liberalize its own economy.  As P.T. Bauer presciently first argued decades ago–and as is widely recognized today–the greatest barriers to development in poorer states is internal.  Countries like Pakistan make entrepreneurship, business formation, and job creation well-nigh impossible.  Business success requires political influence.  The result is poverty and, understandably, political and social unrest.  More than a half century experience with foreign “aid” demonstrates that money from abroad at best masks the consequences of underdevelopment.  More often such transfers actually hinder development, by strengthening the very governments and policies which stand in the way of economic growth.

Even military assistance has been misused.  Reported the New York Times two years ago:

After the United States has spent more than $5 billion in a largely failed effort to bolster the Pakistani military effort against Al Qaeda and the Taliban, some American officials now acknowledge that there were too few controls over the money. The strategy to improve the Pakistani military, they said, needs to be completely revamped. In interviews in Islamabad and Washington, Bush administration and military officials said they believed that much of the American money was not making its way to frontline Pakistani units. Money has been diverted to help finance weapons systems designed to counter India, not Al Qaeda or the Taliban, the officials said, adding that the United States has paid tens of millions of dollars in inflated Pakistani reimbursement claims for fuel, ammunition and other costs.

Writing blank checks to regimes like that in Pakistan is counterproductive in the long term.  Extremists pose a threat less because they offer an attractive alternative and more because people are fed up with decades of misrule by the existing authorities.  Alas, U.S. “aid” not only buttresses those authorities, but ties America to them, transferring their unpopularity to Washington.  The administration needs do better than simply toss more money at the same people while hoping that they will do better this time.

A Chance to Fix the PATRIOT Act?

As Tim Lynch noted earlier this week, Barack Obama’s justice department has come out in favor of renewing three controversial PATRIOT Act provisions—on face another in a train of disappointments for anyone who’d hoped some of those broad executive branch surveillance powers might depart with the Bush administration.

But there is a potential silver lining: In the letter to Sen. Patrick Leahy (D-VT) making the case for renewal, the Justice Department also declares its openness to “modifications” of those provisions designed to provide checks and balances, provided they don’t undermine investigations. While the popular press has always framed the fight as being “supporters” and “opponents” of the PATRIOT Act, the problem with many of the law’s provisions is not that the powers they grant are inherently awful, but that they lack necessary constraints and oversight mechanisms.

Consider the much-contested “roving wiretap” provision allowing warrants under the Foreign Intelligence Surveillance Act to cover all the communications devices a target might use without specifying the facilities to be monitored in advance—at least in cases where there are specific facts supporting the belief that a target is likely to take measures to thwart traditional surveillance. The objection to this provision is not that intelligence officers should never be allowed to obtain roving warrants, which also exist in the law governing ordinary law enforcement wiretaps. The issue is that FISA is fairly loosey-goosey about the specification of “targets”—they can be described rather than identified. That flexibility may make some sense in the foreign intel context, but when you combine it with similar flexibility in the specification of the facility to be monitored, you get something that looks a heck of a lot like a general warrant. It’s one thing to say “we have evidence this particular phone line and e-mail account are being used by terrorists, though we don’t know who they are” or “we have evidence this person is a terrorist, but he keeps changing phones.” It’s another—and should not be possible—to mock traditional particularity requirements by obtaining a warrant to tap someone on some line, to be determined. FISA warrants should “rove” over persons or facilities, but never both.

The DOJ letter describes the so-called “Lone Wolf” amendment to FISA as simply allowing surveillance of targets who are agents of foreign powers without having identified which foreign power (i.e. which particular terrorist group) they’re working for. They say they’ve never invoked this ability, but want to keep it in reserve. If that description were accurate, I’d say let them. But as currently written, the “lone wolf” language potentially covers people who are really conventional domestic threats with only the most tenuous international ties—the DOJ letter alludes to people who “self-radicalize” by reading online propaganda, but are not actually agents of a foreign group at all.

Finally, there’s the “business records” provision, which actually covers the seizure of any “tangible thing.”  The problems with this one probably deserve their own post, and ideally you’d just go through the ordinary warrant procedure for this. But at the very, very least there should be some more specific nexus to a particular foreign target than “relevance” to a ongoing investigation before an order issues. The gag orders that automatically accompany these document requests also require more robust judicial scrutiny.

Some of these fixes—and quite a few other salutary reforms besides—appear to be part of the JUSTICE Act which I see that Sen. Russ Feingold (D-WI) introduced earlier this afternoon.  I’ll take a closer look at the provisions of that bill in a post tomorrow.

Bagram, Habeas, and the Rule of Law

Andrew C. McCarthy has an article up  at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.

McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.

More details after the jump.

McCarthy is Factually Misleading

McCarthy begins by criticizing a decision by District Judge John Bates to allow three detainees in Bagram, Afghanistan, to file habeas corpus petitions testing the legitimacy of their continued detention. McCarthy would have you believe that this is wrong because they are held in a combat zone and that they have already received an extraordinary amount of process by wartime detention standards. He is a bit off on both accounts.

First, this is not an instance where legal privileges are “extended to America’s enemies in Afghanistan.” The petition from Bagram originally had four plaintiffs, none of whom were captured in Afghanistan – they were taken into custody elsewhere and moved to Bagram, which is quite a different matter than a Taliban foot soldier taken into custody after an attack on an American base. As Judge Bates says in his decision, “It is one thing to detain t

hose captured on the surrounding battlefield at a place like Bagram, which [government attorneys] correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Judge Bates also took into account the political considerations of hearing a petition from Haji Wazir, an Afghan man detained in Dubai and then

moved to Bagram. Because of the diplomatic implications of ruling on an Afghan who is on Afghan soil, Bates dismissed Wazir’s petition. So much for judicial “despotism” and judicial interference on the battlefield, unless you define the world as your battlefield.

Second, the detainees have not been given very much process. Their detentions have been approved in “Unlawful Enemy Combatant Review Boards.” Detainees in these proceedings have no American representative, are not present at the hearings, and submit a written statement as to why they should be released without any knowledge of what factual basis the government is using to justify their detention. This is far less than the Combatant Status Review Tribunal procedures held insufficient in the Supreme Court’s Boumediene ruling.

Yes, Fix Detention in Afghanistan

McCarthy then chides the Obama administration for trying to get ahead of the courts by affording more process to detainees: “See, we can give the enemy more rights without a judge ordering us to do so!”

Well, yes. We should fix the detention procedures used in Afghanistan to provide the adequate “habeas substitute” required by Boumediene so that courts either: (1) don’t see a need to intervene; or (2) when they do review detention, they ratify the military’s decision more often than not.

Thing is, the only substitute for habeas is habeas. Habeas demands a hearing, with a judge, with counsel for both the detainee and the government, and a weighing of evidence and intelligence that a federal court will take seriously. If the military does this itself, then the success rate in both detaining the right people and sustaining detention decisions upon review are improved.

This is nothing new or unprecedented. Salim Hamdan, Usama Bin Laden’s driver, received such a hearing prior to his military commission. The CSRT procedures that the Bagram detainees are now going to face were insufficient to subject Hamdan to a military commission, so Navy Captain Keith Allred granted Hamdan’s motion for a hearing under Article V of the Geneva Conventions to determine his legal status.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia. Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Hamdan’s Article V hearing should be the template for battlefield detention. Charles “Cully” Stimson at the Heritage Foundation, a judge in the Navy JAG reserves and former Bush administration detainee affairs official, wrote a proposal to do exactly that, Holding Terrorists Accountable: A Lawful Detention Framework for the Long War.

The more we legitimize and regularize these decisions, the better off we are. Military judges should be writing decisions on detention and publishing declassified versions in military law reporters. One of the great tragedies of litigating the detainees from the early days in Afghanistan is that a number were simply handed to us by the Northern Alliance with little to no proof and plenty of financial motive for false positives. My friends in the service tell me that we are still running quite a catch-and-release program in Afghanistan. I attribute this to arguing over dumb cases from the beginning of the war when we had little cultural awareness and a far less sophisticated intelligence apparatus. Detention has become a dirty word. By not establishing a durable legal regime for military detention, we created lawfare fodder for our enemies and made it politically costly to detain captured fighters.

The Long-Term Picture

McCarthy, along with too many on the Right, is fixated on maintaining executive detention without legal recourse as our go-to policy for incapacitating terrorists and insurgents. In the long run we need to downshift our conflicts from warmaking to law enforcement, and at some point detention transitions to trial and conviction.

McCarthy might blast me for using the “rule of law” approach that he associates with the Left and pre-9/11 counterterrorism efforts. Which is fine, since, just as federal judges “have no institutional competence in the conduct of war,” neither do former federal prosecutors.

Counterterrorism and counterinsurgency are not pursued solely by military or law enforcement means. We should use both. The military is a tool of necessity, but in the long run, the law is our most effective weapon.

History dictates an approach that uses military force as a means to re-impose order and the law to enforce it. The United States did this in Iraq, separating hard core foreign fighters from local flunkies and conducting counterinsurgency inside its own detention facilities. The guys who were shooting at Americans for a quick buck were given some job training and signed over to a relative who assumed legal responsibility for the detainee’s oath not to take up arms again. We moved detainees who could be connected to specific crimes into the Iraqi Central Criminal Court for prosecution. We did all of this under the Law and Order Task Force, establishing Iraqi criminal law as the law of the land.

We did the same in Vietnam, establishing joint boards with the Vietnamese to triage detainees into Prisoner of War, unlawful combatant, criminal defendant, and rehabilitation categories.

The Washington Post article on our detention reforms in Afghanistan indicates that we are following a pattern similar to past conflicts. How this is a novel and dangerous course of action escapes me.

Who’s the Despot Here?

McCarthy points to FDR as a model for our actions in this conflict between the Executive and Judiciary branches. He says that the President should ignore the judgments of the courts in the realm of national security and their “despotic” decrees. I do not think this word means what he thinks it means.

FDR was the despot in this chapter of American history, threatening to pack the Supreme Court unless they adopted an expansive view of federal economic regulatory power. The effects of an expansive reading of the Commerce Clause are felt today in an upending of the balance of power that the Founders envisioned between the states and the federal government.

McCarthy does not seem bothered by other historical events involving the President’s powers as Commander-in-Chief in the realm of national security. The Supreme Court has rightly held that the President’s war powers do not extend to breaking strikes at domestic factories when Congress declined to do so during the Korean War, trying American citizens by military commission in places where the federal courts are still open and functioning, and declaring the application of martial law to civilians unconstitutional while World War II was under way.

The Constitution establishes the Judiciary as a check on the majoritarian desires of the Legislature and the actions of the Executive, even during wartime. To think otherwise is willful blindness.

Tom Ridge on the Bush Administration’s War on Terror

Former congressman, governor, and secretary of the Department of Homeland Security Tom Ridge is a long-time GOP loyalist.  But he apparently doesn’t have good things to say about the Bush administration on its vaunted war on terrorism.

A new report on his upcoming book warns:

Tom Ridge, the first head of the 9/11-inspired Department of Homeland Security, wasn’t keen on writing a tell-all. But in The Test of Our Times: America Under Siege…and How We Can Be Safe Again, out September 1, Ridge says he wants to shake “public complacency” over security.

And to do that, well, he needs to tell all. Especially about the infighting he saw that frustrated his attempts to build a smooth-running department. Among the headlines promoted by publisher Thomas Dunne Books: Ridge was never invited to sit in on National Security Council meetings; was “blindsided” by the FBI in morning Oval Office meetings because the agency withheld critical information from him; found his urgings to block Michael Brown from being named head of the emergency agency blamed for the Hurricane Katrina disaster ignored; and was pushed to raise the security alert on the eve of President Bush’s re-election, something he saw as politically motivated and worth resigning over.

This confirms widespread suspicion that the Bush administration’s terrorism initiatives were highly political.  It also undercuts the claim that we should trust government to protect us by sacrificing our liberties and giving trustworthy public servants greater discretion.

Parties in Power Like National ID Systems

In a recent post, I noted how Department of Homeland Security secretary Janet Napolitano was “taking the national ID tar baby in a loving embrace.” Now the administration seems to be similarly embracing the E-Verify government background check system.

Starting September 8th, it will go forward with a Bush administration plan to require federal contractors to check their employees against federal databases. The E-Verify program is riddled with problems, and it will send many American workers and legal immigrants into Kafkaesque ordeals when they find they aren’t approved by the federal government to earn a living. Ultimately, “internal enforcement” of immigration law, which is what E-Verify is about, requires a biometric national identity system.

Wasn’t a Democratic administration going to be the antidote to the aggressive security-statism of the Bush administration? Well, no. Once in power, either political party will see merit in national ID systems. After all, a national ID gives the government direct regulatory control over individuals - and that’s a sweet sound to the powerful, regardless of political affiliation. This is why it was so interesting to see the left begin to embrace a national ID as it anticipated an Obama victory in November.

Parties in power like national ID systems.

Iraq’s Future Is Up to Iraqis

The U.S. is not yet out of Iraq, but American forces have pulled back from Iraqi cities.  Iraq’s future increasingly is in the hands of Iraqis.  And most Iraqis appear to be celebrating.

Reports the Washington Post:

This is no longer America’s war.

Iraqis danced in the streets and set off fireworks Monday in impromptu celebrations of a pivotal moment in their nation’s troubled history: Six years and three months after the March 2003 invasion, the United States on Tuesday is withdrawing its remaining combat troops from Iraq’s cities and turning over security to Iraqi police and soldiers.

While more than 130,000 U.S. troops remain in the country, patrols by heavily armed soldiers in hulking vehicles as of Wednesday will largely disappear from Baghdad, Mosul and Iraq’s other urban centers.

“The Army of the U.S. is out of my country,” said Ibrahim Algurabi, 34, a dual U.S.-Iraqi citizen now living in Arizona who attended a concert of celebration in Baghdad’s Zawra Park. “People are ready for this change. There are a lot of opportunities to rebuild our country, to forget the past and think about the future.”

On Monday, as the withdrawal deadline loomed, four U.S. troops were killed in the Iraqi capital, the military announced Tuesday. No details about the deaths were provided. Another soldier was killed Sunday in a separate attack.

The Bush administration never should have invaded Iraq.  The costs have been high: more than 4,000 dead American military personnel.  Tens of thousands more have been injured, many maimed for life.  Hundreds more military contractors and coalition soldiers have died.  And tens of thousands of Iraqis – certainly more than 100,000, though estimates above that diverge wildly. 

The U.S. has squandered hundreds of billions of dollars and the ultimate cost is likely to run $2 trillion or more, as the government cares for seriously injured veterans for the rest of their lives.  America’s fine fighting men and women have been stretched thin and America’s adversaries, most notably Iran, have been strengthened.  Yet another cause has been added to the recruiting pitch of hateful extremists seeking to do Americans and others harm.

Nevertheless, let us hope that Iraqis take advantage of the opportunity they now enjoy.  It will take enormous statesmanship and restraint to accommodate those of different faiths and ethnicities, forgive past crimes committed by Sunni and Shia forces, eschew violence for retaliation and revenge, resolve even bitter disagreements peacefully, and accept political defeat without resort to arms.

Other peoples who have suffered less have failed to surmount similar difficulties.  But it is no one’s interest, and especially that of the Iraqis, to lapse back into sectarian conflict and political tyranny.  Let us hope – and dare I suggest, pray? – that they prove up to the challenge.

A Nation of Lawlessness

The matter of Chrysler’s bankruptcy seems to have rendered quaint our system of checks and balances. President Obama is breaking the law and the other two branches are letting him get away with it. One can probably understand how a smitten public might casually allow this president a stipend of unconstitutional acts, since he doesn’t scowl like Nixon or stutter like Bush. But, even a popular president (in particular, a popular president) must be held in check by the legislative and judicial branches.

And that’s not happening.

On Tuesday at 4:00 pm, Justice Ruth Bader Ginsburg “stayed pending further order” the bankruptcy-related transactions of Chrysler, giving hope the Supreme Court might hear the appeal filed on behalf of certain Indiana state pension and construction funds, who claim that their property rights as secured creditors were violated by the forced sale and that the use of Troubled Asset Relief Program funds to support Chrysler and facilitate its restructuring was illegal. Only 28 hours later, the Supreme Court decided against taking the appeal, despite the seemingly compelling issues at hand.

Just as the Bush administration was telling Congress last September that there was no time to debate the merits of a financial bailout and that the only course was to give Treasury Secretary Paulson carte blanche immediately to spend $700 billion, the Obama administration was telling the Supreme Court this week that time was of the essence and that Fiat would walk away from the Chrysler deal if it wasn’t allowed to proceed right away. Was that the decisive factor in the Supreme Courts rejection of the appeal? It seems to me the appeal contains some serious constitutional issues worthy of judicial consideration (consideration that goes beyond merely rubber-stamping the Obama administration’s pre-packaged, politically-driven bankruptcy plan for Chrysler, which is what Judge Gonzalez appears to have done).

But it’s now a done deal, possibly facilitated by illegalities.

I’m struck by the relative quiet about this issue (in the mainstream media and the blogosphere). Maybe we’re all just too numb and shell shocked by the blitzkrieg of government interventions over the past 9 months that it’s no longer possible to feel alarmed or outraged by just another government act that would have been unthinkable this time last year.

Well wake up!

There is a compelling legal argument against using TARP funds to support automobile producers. (Obviously, there is a compelling economic argument, as well.) Convincing the courts to hear the argument and subsequently persuading judges (probably up to the Supreme Court) of its merits will likely be the last chance to spare us the nationalization of General Motors.

As you may recall, there wasn’t a whole lot of clarity about how the Treasury’s use of TARP funds would be limited or defined. Lots of discretion was granted the Treasury Secretary. However, Section 101(a)(1) of the law establishing the TARP stipulates:

“The Secretary is authorized to establish the Troubled Asset Relief Program (or ‘TARP’) to purchase, and to make and fund commitments to purchase, troubled assets from any financial institution, on such terms and conditions as are determined by the Secretary, and in accordance with this Act and the policies and procedures developed and published by the Secretary.” (My emphasis).

Neither Chrysler nor GM is a financial institution and therefore neither can receive TARP money.  There’s the argument, plain and simple.  Congress authorized funds for a defined use; the executive breached those boundaries, and thus acted illegally. Is it more complicated than that?

President Bush was the first to break the law by authorizing $17.4 billion in TARP funds for GM and Chrysler, circumventing the wishes of Congress, which had recently voted against an auto bailout.  And President Obama has followed suit, providing funding the Chrysler and GM during bankruptcy.

If there’s any doubt that TARP funds were not to be used for automobile companies, consider the fact that the same House of Representatives that passed the legislation creating the TARP in October also passed a bill specifically authorizing the use of TARP funds for automobile companies in December. (There was never a vote in the Senate so it never became law.)  Such legislation wouldn’t have been necessary if the intent of Congress was to allow TARP funds to be used for automakers originally.  Thus, there are two conclusions to draw here. First, the 110th Congress didn’t think the TARP legislation, which it had passed two months earlier, allowed TARP funds to be used for automakers; and second, Congress was too cowardly to bring the matter to the Supreme Court, thereby exercising its constitutional responsibility and allowing the judiciary an opportunity to exercise its.

Let’s hope the judiciary finds the opportunity to check the legality of the executive’s implementation of the legislature’s instructions, as far as the people’s money is concerned.