Topic: Foreign Policy and National Security

Technology - er, Paying Attention - Will Save Us All

With masterful dry wit, ars technica skewers a new Defense Department research project.  The idea?  Using technology to find information.

The Air Force’s Office of Scientific Research has commenced a study called “Automated Ontologically-Based Link Analysis of International Web Logs for the Timely Discovery of Relevant and Credible Information.”  In translation, that means, “We’re going to pay attention to blogs.”  Price tag: $450,000. 

Talk about government waste. I would have sold them that idea for $399,000.

Pardon Me, Congressman, Is That a Log in Your Eye?*

China hawk extraordinaire Rep. Steve Chabot had a piece in the DC Examiner last week calling for a “fresh review of America’s interests in Asia.” For one thing, Rep. Chabot loudly protested China’s “enormous and ever-growing militarization program.”

For advocates of Taiwan independence like Rep. Chabot, the PRC’s military modernization program is no doubt worrisome. But the United States is in no position to protest any other country’s allegedly “enormous and ever-growing militarization program.”

US defense spending is more than $400 billion annually, not including the ongoing wars in Afghanistan and Iraq. The US has the largest blue-water navy in the world, with 12 aircraft carriers. We can project naval (or other) power anywhere in the world in a matter of days.

Chinese defense spending is hard to pin down, precisely, but experts generally center around a median estimate in the neighborhood of $50 billion. China has 0 aircraft carriers, and thus is unable even to protect its precarious supply of energy that comes from the Middle East through the Strait of Malacca.

China looks at things pretty simply: The United States could militarily impose its will on issues that China perceives as life-or-death concerns: the future of Taiwan, the balance of power in East Asia, and the security of China’s supplies of energy. It would be like if China were the dominant military power in the Western hemisphere, and then started squawking about America’s attempt to build up its own military.

For Rep. Chabot (or Secretary Rumsfeld) to think that the United States has any position to protest anybody’s “enormous and ever-growing militarization program” is a bit ridiculous. At a time when we’re engaged in two wars halfway ‘round the world, spending nearly as much on defense as the rest of the world combined, it’s a shaky line of reasoning that says that China’s attempt to bring a 1950s-era military into the 21st century is anything that we are in any position to protest.

As Martin Wolf noted in the FT last September (sub. req’d),

the Chinese can justifiably react by asking why the US needs to spend as much on its military as the rest of the world put together. With Canada and Mexico as its neighbours, why does it feel so threatened? To this the US would respond that it has special responsibilities as guarantor of world peace and, in any case, threatens no other nation. China, in its turn, could then ask who elected the US global policeman and why, given the public debate in the US about whether and how to curb its rise, it should trust its security to the US.

Just so.

* For an explanation of the title, go here.

Military Tribunals Plan B, or C, or D, or…

Yesterday, the Supreme Court ruled that the Bush administration’s military tribunals violated the law. On the news today, I heard someone say that the White House must now consider “Plan B.” 

Ahem — we passed Plan B some time ago.

Here’s a recap of what has transpired over the past four years:

PLAN A: Issue “military tribunals” order. (The resistance may be negligible.)

On November 13, 2001, President Bush quietly and matter-of-factly issued a “military order” to establish military tribunals for prisoners in the “war on terror.” The order stated that any prisoner designated by the president to be an “enemy combatant” would be imprisoned by the military. The order boldly declared that such prisoners could be tried before tribunals and that the prisoners “shall not be privileged to seek any remedy in any court of the United States.”

When the prisoners did get legal representation, Mr. Bush’s people told the defense lawyers that the military order precluded them from challenging the legality of the tribunals in court. After all, that’s what the order said. 

However, Plan A failed; legal challenges were filed anyway.

PLAN B: Make the argument to the judges. (They may buy it.)

The Bush administration argued in federal court that legal challenges to the tribunals must be dismissed immediately because the president’s order clearly said that prisoners may not “seek any remedy in any court.” 

But Plan B failed; the court was not persuaded.

PLAN C:  Appeal. (Keep arguing until some court buys it.)

A key aspect of the controversy reached the Supreme Court in Rasul v. Bush in 2004. Mr. Bush’s lawyers argued that U.S. courts lack jurisdiction to consider any legal challenges from prisoners held at Guantanamo Bay. 

Plan C failed; the Supreme Court was not persuaded.

PLAN D: Start the tribunals anyway, and handle any legal challenges later. (Perhaps by bringing strong cases against unsympathetic figures like Hamdan, the judicial system will acquiesce.)

Hamdan’s lawyer immediately challenged the legality of the tribunal. Mr. Bush’s lawyers responded by telling the court that Hamdan’s argument was without merit. The judge was not persuaded.

PLAN E: Appeal. (Keep arguing.)

At first, Plan E appeared to work. The appellate court overturned the district court and ruled that the tribunals were legal. But Hamdan’s lawyers refused to go along, and they appealed the case to the Supreme Court.

PLAN F: Persuade the Supreme Court not to hear Hamdan’s appeal. (This will secure the lower court victory.)

But the Supreme Court was not persuaded, and granted certiorari.

PLAN G: Persuade Congress to pass a law that will prevent the Supreme Court from hearing Hamdan’s appeal. (The legislative branch could check the judiciary.)

With time growing short before the High Court would hear Hamdan’s opening arguments, Congress passed the Detainee Treatment Act, ostensibly blocking the case. But the Supreme Court responded that it would hear arguments on the new law at the same time that it would hear arguments on the merits of the military tribunal controversy.

PLAN H: Argue again that the new law means the Court has no jurisdiction to hear Hamdan’s case, then argue that Hamdan’s objections should be heard on post-conviction appeal, and then argue that the tribunals are lawful and proper. (The plan could also be called “Broken Arrow.”)

But Plan H failed. The Supreme Court was unpersuaded by all three arguments and found the tribunals unlawful.

PLAN I is presently in the works, under the codename “Plan B.” 

When it arrives, scrutinize it.

This Sunday in Bolivia and Mexico

This Sunday, when Mexicans will vote for a new president, Bolivians will also be going to the polls — selecting a new constituent assembly that will rewrite their constitution.

Bolivian president Evo Morales is using Venezuelan leader Hugo Chavez’s example as a model to concentrate power. Chavez introduced a new constitution that centralized political control and he has used popular referendums to eliminate checks and balances on his power. Morales will have a somewhat harder time at gaining and maintaining similar control, since he doesn’t have the vast oil resources or military background to support him that Chavez has.

If Mexican populist Andres Manuel Lopez Obrador is elected this weekend, will he too follow the Chavez path? Many observers, including the market, don’t seem overly concerned. Mexico is not Bolivia; it is a much larger, more diverse, open economy with a free trade agreement with the United States. Democratization and economic reforms — especially openness to international capital markets — will temper Lopez Obrador’s populist sentiments. At least, so the argument goes.

Unfortunately, I don’t believe that Mexico’s reforms have been sufficiently institutionalized. Mercantilism, political opportunism, and the party machine are still quite alive in a Mexico that spent most of the 20th century looking inward and under state domination. Even President Vicente Fox’s great achievement of maintaining a macroeconomic stability not seen in more than 30 years depended heavily on the admirable qualities of the current finance minister and central bank president.

As Mexican economist Manuel Suarez Mier has been emphatically warning, a President Lopez Obrador would find it relatively easy to buy off congressmen from the opposition and discredited PRI party and to thus begin re-establishing the political hegemony that existed in Mexico before Fox came to power. Except this time, the ruling party would be Lopez Obrador’s PRD.

That scenario may seem extreme, especially since it would require plenty of resources to sustain. The path to populism in Mexico would be different than that of Venezuela. But given Lopez Obrador’s political record of behaving irresponsibly and openly disdaining the rule of law (e.g., he has disregarded court rulings with which he disagrees), there is every reason to believe that he will follow through with the vast New Deal-type spending projects that he has promised, the creation of state-owned businesses, and the protection of favored industries even in the face of adverse economic results.

Bolivia is guaranteed a rough ride almost regardless of its election results this weekend. Because the leading presidential contenders are essentially tied in the polls, Mexico can still opt against the candidate that promises to take the country backward.

Hamdan v. Rumsfeld: A (Tentative) Guide for the Perplexed

Hamdan v. Rumsfeld, the recent Supreme Court case concerning the use of special military commissions to try Guantanamo prisoners, is a bear to boil down, accurately, in a single blog post. It touches on a perfect storm of arcane questions: customary international law, treaty interpretation, the common law of war, the Uniform Code of Military Justice, and jurisdiction-stripping.

The Court’s basic argument, as I understand it, is this: Congress can set the rules governing military commissions in most cases, including this one. Those rules, spelled out in the U.S. Code of Military Justice and corresponding treaties, specify as follows:

  • The commissions must conform as much as practical to the procedures that govern standing courts-martial (the standing tribunals in which U.S. serviceman can be tried) and ordinary civil criminal trials.
  • The Geneva Convention sets additional, overlapping requirements that trial of prisoners must occur in “regularly constituted” courts.

Those requirements have been violated. While the commissions depart from the standard procedures of courts-martial, the president hasn’t made a sufficient showing that consistency with the procedures of ordinary courts-martial isn’t a “practical” option, as U.S. law (specifically, Article 36 of the U.S. Code of Military Justice) requires. Because the president hasn’t made that showing, the Gitmo commissions also aren’t “regularly constituted” courts — and therefore trying persons before the commissions violates Common Article 3 of the Geneva Convention.

Got that? Good, because there are some more wrinkles:

The Court also holds that Common Article 3 of the Geneva Convention is part of the “law of war” that governs military commissions under U.S. law. That means that Common Article 3 of the Geneva Convention is a restraint on the procedures that govern the commissions. Furthermore, the Court holds that Common Article 3 of the Geneva Conventions applies to the armed conflict with al Qaeda. That suggests that the Geneva Convention is a restraint on the way we treat prisoners who are in U.S. custody, since Common Article 3 requires that they be treated humanely.

Finally, the Court lays out a safe harbor for the administration. If the administration (1) adopts procedures and oversight mechanisms that apply to courts-martial — particularly, standards and procedures that insulate the “presiding officer” (judge-like officer who presides over trials in commissions) from control by political appointees selected by the SecDef, and (2) conform standards governing admission of evidence to the rules that govern courts-martial, the commissions might be upheld. Also, if the administration offers record evidence that the procedures of courts-martial are impractical, it might also secure judicial approval of the commissions. Even if it doesn’t do this, the military can still hold Guantanamo detainees indefinitely without trial. The administration can also convince Congress to approve the procedures it prefers.

Here’s some of what the Court didn’t decide:

  1. Can Congress withdraw the Supreme Court’s authority to hear future challenges to the military commissions by persons who aren’t yet enmeshed in a prosecution before a commission? We don’t know. The Court holds only that Congress hasn’t withdrawn its jurisdiction over prosecutions already initiated.
  2. Is the Detainee Treatment Act — which removes Supreme Court jurisdiction to hear appeals by Guantanamo detainees based on U.S. statutes or the Constitution, gives lower courts discretion to deny appeal of non-capital cases in which defendants face short prison sentences, and limits appeal to judgments contained in a “final decision” of a military commission — valid as applied to persons who haven’t yet been charged? No answer.
  3. Does the president have inherent power to ignore Congress in cases of “controlling necessity” in, for example, the field of combat? The Court doesn’t clearly answer that question. Says the Court: “Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions ‘without the sanction of Congress’ in cases of ‘controlling necessity’ is a question this Court has not answered definitively, and need not answer today.” The Court specifies, in footnote 23, only that the President “may not disregard limitations that Congress has, in proper exercise of its own powers, placed on his powers.” The meaning of that all important qualification — “proper” — remains undetermined.
  4. Can the president establish commissions that depart from ordinary procedure of courts-martial? Yes — if he shows that the ordinary procedures are impractical. The Court holds only that the president hasn’t made such a showing — not that he can’t ever make such a showing. The Court also doesn’t settle when such a showing is substantial enough to deserve deference.
  5. Can civil courts hear claims raising violations of the Geneva Convention? This, too, remains unanswered. The majority, including Justice Kennedy, holds that only the Convention is enforceable under the Uniform Code of Military Justice as part of the “law or war” that governs military commissions. That ruling has no necessary application to civil courts. However, the opinion is quite suggestive. Both the majority and concurrence cite 18 U.S.C. § 2441, which Justice Kennedy stresses makes violation of Common Article 3 of the Geneva Convention a war crime punishable as a federal offense, enforceable in federal civil court. The majority holds, of course, that trying pesons under the president’s military commission order violates Common Article 3 of the Geneva Convention, suggesting that trial is a war crime within the meaning of 18 U.S.C. § 2441. Furthermore, the majority stresses that the Geneva Conventions “do extend liability for substantive war crimes to those who ‘orde[r]’ their commission” and “this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility’ on military commanders for acts of their subordinates.” The Court’s emphasis on the liability that attaches to “orders” is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, its difficult to imagine circumstances in which charges under Section 2441 might actually be prosecuted.

[Ed. note: In the original post, the author mistakenly cited 18 U.S.C. § 2241.  The correct citation is 18 U.S.C. § 2441, updated in the text above.]

Won’t Get Fooled Again?

Buried in Eli Lake’s NY Sun story on Israeli jets buzzing the home of Syrian president Bashar al-Assad is this quote from former Syrian vice president Farid Ghadry, now part of the exile group Reform Party of Syria:

“This is indicative that not only Israel is running out of patience with the terrorism that is planned in Damascus, but we believe the United States may not at all dislike what happened…. The message to Assad is, ‘Clear your plate of terrorism or we will come after you.’ This is very encouraging to the Syrian opposition.”

Lake goes on to report:

Mr. Ghadry met with Vice President Cheney on June 17 at the American Enterprise Institute’s annual retreat in Beaver Creek, Colo.

It’s remarkable that after the disastrous decision to start a war with Iraq — based in good part on false intelligence provided by exiles — the vice president is still finding new and creative ways to link up with exile groups. Mr. Ghadry once said of Ahmed Chalabi that “Ahmed paved the way in Iraq for what we want to do in Syria.”

God help us. There’s always room for more heroes in error, I guess.

Intelligence on Iran

Graham Allison had a smart piece in Monday’s Lebanon Daily Star warning us that our intelligence in Iran could be bad, and Iran might be closer to a bomb than we think.

That’s certainly true, and it’s made even more worrisome by the fact that NY Times reporter James Risen tells us that the entire US intelligence apparatus in Iran was “rolled up” when a CIA agent sent the roster of US assets there to an Iranian double agent.

At the same time, it’s important to have not just a grain, but a whole shaker of salt handy when dealing with Iran hawks.  Charles Krauthammer warned in January of this year that

Instead of being years away from the point of no return for an Iranian bomb…Iran is probably just months away.

Or for a really remarkable piece of bad intelligence, we can look to Michael Ledeen (who claims to have better intelligence on Iran than the CIA, yet who’s never set foot in Iran), who told the Jewish Institute for National Security Affairs in April 2003 of the “likelihood that Tehran will test nuclear devices by the end of this summer.”

To borrow from Donald Rumsfeld, I think we’re in “known unknown” territory here.  What better time to offer the Iranians a grand bargain and get it over with, no?