Tag: intelligence

PATRIOT Powers: Roving Wiretaps

Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers.  In this edition: Section 206, roving wiretap authority.

The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?

 

To understand the reasons for potential concern, we need to take a little detour into the differences between electronic surveillance warrants under Title III and FISA. The Fourth Amendment imposes two big requirements on criminal warrants: “probable cause” and “particularity”. That is, you need evidence that the surveillance you’re proposing has some connection to criminal activity, and you have to “particularly [describe] the place to be searched and the persons or things to be seized.” For an ordinary non-roving wiretap, that means you show a judge the “nexus” between evidence of a crime and a particular “place” (a phone line, an e-mail address, or a physical location you want to bug). You will often have a named target, but you don’t need one: If you have good evidence gang members are meeting in some location or routinely using a specific payphone to plan their crimes, you can get a warrant to bug it without necessarily knowing the names of the individuals who are going to show up. On the other hand, though, you do always need that criminal nexus: No bugging Tony Soprano’s AA meeting unless you have some reason to think he’s discussing his mob activity there. Since places and communications facilities may be used for both criminal and innocent persons, the officer monitoring the facility is only supposed to record what’s pertinent to the investigation.

When the tap goes roving, things obviously have to work a bit differently. For roving taps, the warrant shows a nexus between the suspected crime and an identified target. Then, as surveillance gets underway, the eavesdroppers can go up on a line once they’ve got a reasonable belief that the target is “proximate” to a location or communications facility. It stretches that “particularity” requirement a bit, to be sure, but the courts have thus far apparently considered it within bounds. It may help that they’re not used with great frequency: Eleven were issued last year, all to state-level investigators, for narcotics and racketeering investigations.

Surveillance law, however, is not plug-and-play. Importing a power from the Title III context into FISA is a little like dropping an unfamiliar organism into a new environment—the consequences are unpredictable, and may well be dramatic. The biggest relevant difference is that with FISA warrants, there’s always a “target”, and the “probable cause” showing is not of criminal activity, but of a connection between that target and a “foreign power,” which includes terror groups like Al Qaeda. However, for a variety of reasons, both regular and roving FISA warrants are allowed to provide only a description of the target, rather than the target’s identity. Perhaps just as important, FISA has a broader definition of the “person” to be specified as a “target” than Title III. For the purposes of criminal wiretaps, a “person” means any “individual, partnership, association, joint stock company, trust, or corporation.” The FISA definition of “person” includes all of those, but may also be any “group, entity, …or foreign power.” Some, then, worry that roving authority could be used to secure “John Doe” warrants that don’t specify a particular location, phone line, or Internet account—yet don’t sufficiently identify a particular target either. Congress took some steps to attempt to address such concerns when they reauthorized Section 206 back in 2005, and other legislators have proposed further changes—which I’ll get to in a minute. But we actually need to understand a few more things about the peculiarities of FISA wiretaps to see why the risk of overbroad collection is especially high here.

In part because courts have suggested that the constraints of the Fourth Amendment bind more loosely in the foreign intelligence context, FISA surveillance is generally far more sweeping in its acquisition of information. In 2004, the FBI gathered some 87 years worth of foreign language audio recordings alone pursuant to FISA warrants. As David Kris (now assistant attorney general for the Justice Department’s National Security Division) explains in his definitive text on the subject, a FISA warrant typically “permits aquisition of nearly all information from a monitored facility or a searched location.” (This may be somewhat more limited for roving taps; I’ll return to the point shortly.) As a rare public opinion from the FISA Court put it in 2002: “Virtually all information seized, whether by electronic surveillance or physical search, is minimized hours, days, or weeks after collection.” The way this is supposed to be squared with the Fourth Amendment rights of innocent Americans who may be swept up in such broad interception is via those “minimization” procedures, employed after the fact to filter out irrelevant information.

That puts a fairly serious burden on these minimization procedures, however, and it’s not clear that they well bear it. First, consider the standard applied. The FISA Court explains that “communications of or concerning United States persons that could not be foreign intelligence information or are not evidence of a crime… may not be logged or summarized” (emphasis added). This makes a certain amount of sense: FISA intercepts will often be in unfamiliar languages, foreign agents will often speak in coded language, and the significance of a particular statement may not be clear initially. But such a deferential standard does mean they’re retaining an awful lot of data. And indeed, it’s important to recognize that “minimization” does not mean “deletion,” as the Court’s reference to “logs” and “summaries” hints. Typically intercepts that are “minimized” simply aren’t logged for easy retrieval in a database. In the 80s, this may have been nearly as good for practical purposes as deletion; with the advent of powerful audio search algorithms capable of scanning many hours of recording quickly for particular words or voices, it may not make much difference. And we know that much more material than is officially “retained” remains available to agents. In the 2003 case U.S. v. Sattar, pursuant to FISA surveillance, “approximately 5,175 pertinent voice calls .. were not minimized.”  But when it came time for the discovery phase of a criminal trial against the FISA targets, the FBI “retrieved and disclosed to the defendants over 85,000 audio files … obtained through FISA surveillance.”

Cognizant of these concerns, Congress tried to add some safeguards in 2005 when they reauthorized the PATRIOT Act. FISA warrants are still permitted to work on descriptions of a target, but the word “specific” was added, presumably to reinforce that the description must be precise enough to uniquely pick out a person or group. They also stipulated that eavesdroppers must inform the FISA Court within ten days of any new facility they eavesdrop on, and explain the “facts justifying a belief that the target is using, or is about to use, that new facility or place.”

Better, to be sure; but without access to the classified opinions of the FISA Court, it’s quite difficult to know just what this means in practice. In criminal investigations, we have a reasonable idea of what the “proximity” standard for roving taps entails. Maybe a target checks into a hotel with a phone in the room, or a dealer is observed to walk up to a pay phone, or to buy a “burner.” It is much harder to guess how the “is using or is about to use” standard will be construed in light of FISA’s vastly broader presumption of sweeping up-front acquisition. Again, we know that the courts have been satisfied to place enormous weight on after-the-fact minimization of communications, and it seems inevitable that they will do so to an even greater extent when they only learn of a new tap ten days (or 60 days with good reason) after eavesdropping has commenced.

We also don’t know how much is built into that requirement that warrants name a “specific” target, and there’s a special problem here when surveillance roves across not only facilities but types of facility. Suppose, for instance, that a FISA warrant is issued for me, but investigators have somehow been unable to learn my identity. Among the data they have obtained for their description, however, are a photograph, a voiceprint from a recording of my phone conversation with a previous target, and the fact that I work at the Cato Institute. Now, this is surely sufficient to pick me out specifically for the purposes of a warrant initially meant for telephone or oral surveillance.  The voiceprint can be used to pluck all and only my conversations from the calls on Cato’s lines. But a description sufficient to specify a unique target in that context may not be sufficient in the context of, say, Internet surveillance, as certain elements of the description become irrelevant, and the remaining threaten to cover a much larger pool of people. Alternatively, if someone has a very unusual regional dialect, that may be sufficiently specific to pinpoint their voice in one location or community using a looser matching algorithm (perhaps because there is no actual recording, or it is brief or of low quality), but insufficient if they travel to another location where many more people have similar accents.

Russ Feingold (D-WI) has proposed amending the roving wiretap language so as to require that a roving tap identify the target. In fact, it’s not clear that this quite does the trick either. First, just conceptually, I don’t know that a sufficiently precise description can be distinguished from an “identity.” There’s an old and convoluted debate in the philosophy of language about whether proper names refer directly to their objects or rather are “disguised definite descriptions,” such that “Julian Sanchez” means “the person who is habitually called that by his friends, works at Cato, annoys others by singing along to Smiths songs incessantly…” and so on.  Whatever the right answer to that philosophical puzzle, clearly for the practical purposes at issue here, a name is just one more kind of description. And for roving taps, there’s the same kind of scope issue: Within Washington, DC, the name “Julian Sanchez” probably either picks me out uniquely or at least narrows the target pool down to a handful of people. In Spain or Latin America—or, more relevant for our purposes, in parts of the country with very large Hispanic communities—it’s a little like being “John Smith.”

This may all sound a bit fanciful. Surely sophisticated intelligence officers are not going to confuse Cato Research Fellow Julian Sanchez with, say, Duke University Multicultural Affairs Director Julian Sanchez? And of course, that is quite unlikely—I’ve picked an absurdly simplistic example for purposes of illustration. But there is quite a lot of evidence in the public record to suggest that intelligence investigations have taken advantage of new technologies to employ “targeting procedures” that do not fit our ordinary conception of how search warrants work. I mentioned voiceprint analysis above; keyword searches of both audio and text present another possibility.

We also know that individuals can often be uniquely identified by their pattern of social or communicative connections. For instance, researchers have found that they can take a completely anonymized “graph” of the social connections on a site like Facebook—basically giving everyone a name instead of a number, but preserving the pattern of who is friends with whom—and then use that graph to relink the numbers to names using the data of a differentbut overlapping social network like Flickr or Twitter. We know the same can be (and is) done with calling records—since in a sense your phone bill is a picture of another kind of social network. Using such methods of pattern analysis, investigators might determine when a new “burner” phone is being used by the same person they’d previously been targeting at another number, even if most or all of his contacts have alsoswitched phone numbers. Since, recall, the “person” who is the “target” of FISA surveillance may be a “group” or other “entity,” and since I don’t think Al Qaeda issues membership cards, the “description” of the target might consist of a pattern of connections thought to reliably distinguish those who are part of the group from those who merely have some casual link to another member.

This brings us to the final concern about roving surveillance under FISA. Criminal wiretaps are always eventually disclosed to their targets after the fact, and typically undertaken with a criminal trial in mind—a trial where defense lawyers will pore over the actions of investigators in search of any impropriety. FISA wiretaps are covert; the targets typically will never learn that they occurred. FISA judges and legislators may be informed, at least in a summary way, about what surveillance was undertaken and what targeting methods were used, but especially if those methods are of the technologically sophisticated type I alluded to above, they are likely to have little choice but to defer to investigators on questions of their accuracy and specificity. Even assuming total honesty by the investigators, judges may not think to question whether a method of pattern analysis that is precise and accurate when applied (say) within a single city or metro area will be as precise at the national level, or whether, given changing social behavior, a method that was precise last year will also be precise next year. Does it matter if an Internet service initially used by a few thousands—including, perhaps, surveillance targets—comes to be embraced by millions? Precisely because the surveillance is so secretive, it is incredibly hard to know which concerns are urgent and which are not really a problem, let alone how to think about addressing the ones that merit some legislative response.

I nevertheless intend to give it a shot in a broader paper on modern surveillance I’m working on, but for the moment I’ll just say: “It’s tricky.”  What is absolutely essential to take away from this, though, is that these loose and lazy analogies to roving wiretaps in criminal investigations are utterly unhelpful in thinking about the specific problems of roving FISA surveillance. That investigators have long been using “these” powers under Title III is no answer at all to the questions that arise here. Legislators who invoke that fact as though it should soothe every civil libertarian brow are simply evading their responsibilities.

Exiting the Afghan Quagmire

Maleeha Lodhi, Pakistan’s former ambassador to Washington, and Anatol Lieven, a professor at King’s College London, discuss in the Financial Times how we can exit the Afghan quagmire:

The west should therefore pursue a political solution, open negotiations with the Taliban and offer a timetable for a phased withdrawal in return for a ceasefire. This should begin with the military pulling out of specific areas in return for Taliban guarantees not to attack western bases and Afghan authorities in those areas. If the Taliban refuses such terms, then military pressure should continue. The point should not be to eliminate the Taliban – which is impossible – but to persuade it to agree to a deal.

Lodhi and Lieven’s argument echoes one that David Axe, Jason Reich, and I made yesterday on ForeignPolicy.com.

… regime change, and democracy, are not necessary for counterterrorism. Propping up President Hamid Karzai’s Western-style government in Kabul does not make operations against al Qaeda any easier or more successful. If anything, it distracts from the conceptually simpler task of finding and killing terrorists. Without U.S. and NATO protection, Karzai’s regime would, sooner or later, probably fall to the Taliban. But U.S. observers should not equate that eventuality with “losing” the war. The war is against terrorists, not Islamist governments. The United States should be prepared to make peace, and amends, with a resurgent Taliban – and to encourage the group to excise its more extreme elements.

I admit talking to the Taliban sounds weird and scary. But my contention is that there is no shortage of Pashtun militants willing to fight against what they perceive to be a foreign occupation of their region. Certainly the Taliban does not enjoy support among the majority of Pashtuns—as Lodhi and Lieven point out—but neither did the IRA in Northern Ireland or the FLN in Algeria. The point is not exclusively about popularity (although that’s a critical component, along with local legitimacy), but the fact that these indigenous groups are willing to fight the United States and NATO indefinitely. Indeed, it is the western military presence that is driving support for the Taliban both in Afghanistan and in Pakistan.

Moreover, the notion that we must protect Pakistan from the Taliban is ludicrous. Pakistan’s intelligence service helped create the Taliban and they continue to protect the Afghan Taliban to keep India at bay. From this point of view, deploying more troops would be irrelevant to the fight against al Qaeda and counterproductive in our attempts to pacify the region. For more on what we should do, check this out.

Contempt of (Secret) Court?

At last week’s House Judiciary Committee hearing on the PATRIOT Act, Rep. Hank Johnson (D-GA) raised an interesting question I haven’t seen discussed much: What happens to someone who willfully violates an order of the highly secretive Foreign Intelligence Surveillance Court? (FISA)

Generally, courts have the right to enforce their own orders by finding those who disobey in contempt, and a line from a rare public version of an opinion issued by the Foreign Intelligence Surveillance Court of Review suggests that the same holds here, noting that a service provider who challenged the (now superseded) Protect America Act “began compliance under threat of civil contempt.” (There is, interestingly, some redacted text immediately following that.) Contempt proceedings normally fall to the court that issued the original order.

A finding of civil contempt will typically result in the incarceration of the offending party until they agree to comply—and on the theory that the person “holds the keys to their own cell,” because they’ll be released as soon as they fall in line, normal due process rules don’t apply here. Of course, there are ways of violating the order that make it impossible to comply after the fact, such as breaching the gag rule that prevents people from disclosing that they’ve been served with orders, or (getting extreme now) destroying the records or “tangible things” sought via a Section 215 order. In those cases, presumably, the only recourse would be criminal contempt, for which you’re supposed to be entitled to a jury trial if the penalty is “serious” and involves more than six months incarceration.

That obviously raises some interesting problems given the extraordinarily secret nature of the FISA Court. In the public version of the opinion I linked above, the name of the petitioner and all identifying details are redacted, even the ruling was released six months after it was handed down, so as to avoid tipping off targets about specific providers that have received orders.

Now, I’m going to take a leap of faith and assume we’re not at the point of “disappearing” folks off our own streets, but it is a puzzle how you’d actually carry out enforcement and penalty, if it ever came to that, consistent with the secrecy demanded in these investigations.

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.

Jervis on Afghanistan

Columbia University IR guru Robert Jervis has a smart post at Foreign Policy’s “Af-Pak” blog.  For those who couldn’t get enough at yesterday’s Cato forum on Afghanistan, Jervis’ post is well worth a look:

JERVISProf. Robert Jervis

Most discussion about Afghanistan has concentrated on whether and how we can defeat the Taliban. Less attention has been paid to the probable consequences of a withdrawal without winning, an option toward which I incline. What is most striking is not that what I take to be the majority view is wrong, but that it has not been adequately defended. This is especially important because the U.S. has embarked on a war that will require great effort with prospects that are uncertain at best. Furthermore, it appears that Obama’s commitment to Afghanistan was less the product of careful analysis than of the political need to find a “tough” pair to his attacks on the war in Iraq during the presidential campaign. It similarly appears that in the months since his election he has devoted much more attention to how to wage the war than to whether we need to wage it.

The claim that this is a “necessary war” invokes two main claims and one subsidiary one. The strongest argument is that we have to fight them there so that we don’t have to fight them here. The fact that Bush said this about Iraq does not make it wrong, and as in Iraq, it matters what we mean by “them.”…

[…]

The second part of the question is exactly what withdrawal means. What would we keep in the region? What could we achieve by airpower? How much intelligence would we lose, and are there ways to minimize this loss? It is often said that we withdrew before 9/11 and it didn’t work. True, but the circumstances have changed so much that I don’t find this history dispositive. While al Qaeda resurgence is a real danger, I am struck by the thinness of the argument that in order to combat it we have to fight the Taliban and try to bring peace if not democracy to Afghanistan.

A second argument, made most recently by Frederick Kagan in the September 5-6 Wall Street Journal, is that, to quote from its headline, “A stable Pakistan needs a stable Afghanistan.” But does it really? Are there reasonable prospects for a stable Afghanistan over the next decade no matter what we do? Isn’t there a good argument that part of the problem in Pakistan stems from our continued presence in Afghanistan?

[…]

A third but subsidiary argument is that withdrawal would undermine American credibility around the world. Again, the fact that this is an echo of Vietnam does not make it wrong, but it does seem to me much less plausible than the other arguments. Who exactly is going to lose faith in us, and what are they going to do differently? Much could depend on the course of events in other countries, especially Iraq, which could yet descend into civil war. But if it does, would American appear more resolute – and wiser – for fighting in Afghanistan? Of course if we withdraw and then we or our allies suffer a major terrorist attack many people will blame Obama, and this is a political argument that must weigh more heavily with the White House than it does with policy analysts…

As I hope my ellipses make clear, Jervis’ post is well worth a read.

George Will Says It’s Time to Leave Afghanistan

Conservative columnist George Will wants out of the war in Afghanistan.  And his recommendation is getting some notice.  Reports Mike Allen in Politico:

George F. Will, the elite conservative commentator, is calling for U.S. ground troops to leave Afghanistan in his latest column.

“[F]orces should be substantially reduced to serve a comprehensively revised policy: America should do only what can be done from offshore, using intelligence, drones, cruise missiles, airstrikes and small, potent special forces units, concentrating on the porous 1,500-mile border with Pakistan, a nation that actually matters,” Will writes.

President Obama ordered a total of 21,000 more U.S. troops into Afghanistan in February and March, and casualties have mounted as the forces began confronting the Taliban more aggressively. August saw the highest monthly death toll for the U.S. since the invasion in 2001, the second record month in a row.

Will’s prescription – in which he recalls Bismarck’s decision to halt German forces short of Paris in 1870 - seems certain to split Republicans. He is a favorite of fiscal conservatives. The more hawkish right can be expected to attack his conclusion as foolhardy, short-sighted and naïve, potentially making the U.S. more vulnerable to terrorist attack.

The columnist’s startling recommendation surfaced on the same day that Army Gen. Stanley McChrystal, the commander of U.S. and NATO forces in Afghanistan, sent an assessment up his chain of command recommending what he called “a revised implementation strategy.” In a statement, McChrystal also called for “commitment and resolve, and increased unity of effort.”

With a liberal Democrat having become president and made Afghanistan his war, and George Will leading the charge, might conservative Republicans rediscover their inner anti-war feelings?