Topic: Foreign Policy and National Security

Facts and Logic Pertaining to the Enemy

I was preparing to write a lengthy blog post responding point by point to the many erroneous assertions and flawed arguments contained within the president’s State of the Union address, but then I discovered that I didn’t have to. Veteran Washington Post reporter Glenn Kessler did it for me.

Among the gems contained within Kessler’s article:

– “The Shia and Sunni extremists are different faces of the same totalitarian threat,” the president said. In other words, Kessler writes: “Under Bush’s rubric, a country such as Iran … is lumped together with al-Qaeda, the terrorist group responsible for the Sept. 11, 2001, attacks.”

– With respect to Hezbollah, which President Bush singled out as a terrorist group “second only to al-Qaeda in the American lives it has taken,” Kessler points out that those attacks on the U.S. embassy and a Marine barracks in Lebanon occurred “nearly a quarter-century ago…when the United States intervened in Lebanon’s civil war by shelling Hezbollah strongholds.”  

– In the president’s cataloguing of the actions of “the enemy” since 2005, he “tried to tie together a series of diplomatic and military setbacks that had virtually no connection to one another, from an attack on a Sunni mosque in Iraq to the assassination of Maronite Lebanese political figure [sic].”

– The so-called freedom agenda also takes a few hits. In a familiar refrain, the president argued that “free people are not drawn to violent and malignant ideologies – and most will choose a better way when they are given a chance.”

– However, as Kessler reminds us, “In the two of the most liberal and diverse societies in the Middle East – Lebanon and the Palestinian territories – events have undercut Bush’s argument… Hezbollah has gained power and strength in Lebanon, partly at the ballot box. Meanwhile, Palestinians ousted the Fatah party – which wants to pursue peace with Israel – from the legislature in favor of Hamas, which is committed to Israel’s destruction and is considered a terrorist organization by the State Department.”

– As for the “moderate” governments that the terrorists wish to overthrow, ”Many of the countries that Bush considers ‘moderate’ – such as Egypt and Saudi Arabia – are autocratic dictatorships” whose “Freedom House ratings are virtually indistinguishable from Cuba, Belarus and Burma, which Bush last night listed as nations in desperate need of freedom.”

– Finally, with respect to the president’s assertion that “we have a diplomatic strategy that is rallying the world to join in the fight against extremism,” Kessler notes that “global opinion of U.S. foreign policy has sharply deteriorated in the past two years.” A recent poll found that nearly three-quarters of those surveyed “disapprove of U.S. policies toward Iraq, and nearly half said the United States is playing a mainly negative role in the world.”

Notably, Kessler’s article was not identified as a “News Analysis” – the typical flag that reporters employ when they wish to call attention to the fact that an article in the news portion of the paper (as opposed to the Opinion page) contains opinions. Kessler’s piece did not require such a designation because it was based not on opinion, but rather on a fair and accurate reading of the facts.

Which is more than can be said for the president’s speech.

More on Bush’s Surveillance Flip-Flop

Based on the DOJ briefing regarding the NSA surveillance about-face, it appears that the Foreign Intelligence Surveillance Court (FISC) is not approving surveillance on a program-wide basis.  Instead, it is issuing individualized surveillance orders against particularized targets.  It remains unclear, though, how exactly the FISA orders have changed to permit more “speed and agility” and, because so much is taking place within the dark, all suggestions are pure, unadulterated guess-work.

One compelling theory is Orin Kerr’s:  namely, that the FISA court is issuing anticipatory warrants (warrants based on a finding that there is probable cause to search when a future triggering condition appears.)  As Kerr notes, that’s consistent the one bit of evidence we can glean:  that the FISA court is limiting the approval orders to a 90 day period, rather than the full statutory one year period permitted under FISA.  Shorter review is consistent with ensuring that the triggering condition for the search and the probable cause requirement mesh.  It also helps explain the timing, since the Supreme Court approved anticipatory warrants in United States v. Grubbs last term.  (For more on Grubbs, read Professor David Moran’s article on last term’s Fourth Amendment cases, The End of the Exclusionary Rule, Among Other Things, in the latest Cato Supreme Court Review.)

Kerr’s theory, however, doesn’t explain one part of the puzzle:  multiple sources’ statements to the Washington Post that the orders touch on ”programmatic” issues.  What might this mean, if FISC is approving orders on a case-by-case, rather than program-level, basis?

One possibility is that DOJ has adopted a streamlined internal approval process for emergency FISA applications within the executive branch, and that FISC has approved it.  FISA imposes some internal pre-approval requirements for emergency applications–including review by the AG and a cabinet level official with foreign affairs responsibility.  In February testimony last year, Gonzales complained at length that this statutory approval process had become overly cumbersome:

To be sure, FISA allows the government to begin electronic surveillance without a court order for up to 72 hours in emergency situations or circumstances. 

But before that emergency provision can be used, the attorney general must make a determination that all of the requirements of the FISA statute are met in advance. 

This requirement can be cumbersome and burdensome.  Intelligence officials at NSA first have to assess that they have identified a legitimate target. After that, lawyers at NSA have to review the request to make sure it meets all the requirements of the statute. And then lawyers at the Justice Department must also review the request and reach the same judgment or insist on additional information before processing the emergency application.  Finally I, as attorney general, must review the request and make the determination that all of the requirements of FISA are met.  

But even this is not the end of the story. 

Each emergency authorization must be followed by a detailed formal application to the FISA courts within three days. The government must prepare legal documents laying out all of the relevant facts and law and obtain the approval of a Cabinet-level officer as well as a certification from a senior official with mass security responsibility, such as the director of the FBI. 

Finally, a judge must review, consider and approve the application.  All of these steps take time. Al Qaida, however, does not wait.  … Just as we can’t demand that our soldiers bring lawyers onto the battlefield, let alone get the permission of the attorney general or a court before taking action, we can’t afford to impose layers of lawyers on top of career intelligence officers who are striving valiantly to provide a first line of defense by tracking secretive Al Qaida operatives in real time.  

In the briefing on the new FISA process, however, the administration noted that one change that made compliance with FISA possible was a change in executive branch “infrastructure”:

[O]ne thing that did change was – authorization earlier this year, last year, the National Security Division, which is a new agency in the Department of Justice, which will – be coordinating with the FISA Court on all kinds of matters including this one. So we’re now equipped in a way we weren’t before to handle this work.

One way to read this is that the new FISC order finds that new streamlined executive branch procedures for internal review of emergency applications accords with FISA.  Its hard, unfortunately, to guess exactly what such procedures might be, but it almost certainly includes eliminating duplicative layers of legal oversight within the executive.

Goodbye Warrantless NSA Surveillance?

The DOJ announced today it has reached a double super-secret deal with the FISA court which allows it to bring the administration’s NSA surveillance program within the statutory FISA framework governing surveillance warrants. What deal, you ask? The DOJ’s letter to Senators Leahy and Specter provides few details, except to say that it is based on a FISA court order that establishes “innovative” and “complex” warrant procedures that allow the administration to act with “speed and agility.”

Absent further information, its hard to tell whether this is a good development, although as Marty Lederman notes, it is “difficult to imagine that the FISA court would roll over and approve an ‘innovative’ legal theory if it were dubious – especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly.”

The administration’s about face underscores what I argued in this piece: that the administration’s claims that it was simply too cumbersome to comply with FISA held absolutely no water.

Lederman also notes that the threat of losses in ongoing multi-district litigation involving the state secrets privilege as well as the threat of congressional subpoenas, and possible litigation over executive privilege, may well have prompted the administration to give up its go it alone stance. I’ve previously argued that such threats had the potential to rein in the administration, without involving a winner-takes-all show down with the Supreme Court, here.

Identity Crisis Book Forum Thursday at Cato

On Thursday, the Cato Institute is having a book forum on my book Identity Crisis: How Identification is Overused and Misunderstood.

Commenting on my presentation of the book will be James Lewis from the Center for Strategic and International Studies and Jay Stanley from the ACLU.

The REAL ID Act is under siege from state leaders who are bridling at this unfunded surveillance mandate, and legislation was introduced at the end of the 109th Congress to repeal REAL ID. But the immigration debate this year will surely fuel the push for a national ID with the demand for “internal enforcement” of immigration law. Identity Crisis lays the groundwork for all these discussions.

The event is streamed for those not in the area. To register, go here.

Civil Liberty (Paid for by Philip Morris USA Inc.)

In a recent radio interview, Deputy Secretary of Defense for Detainee Affairs Cully Stimson threatened top American law firms that have done pro bono work for Guantanamo detainees.  And, he suggested, Vito Corleone-style, that the corporations that bankroll these firms should think twice, if they know, eh-hem, what’s good for them: 

“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

A chorus of criticism has followed, which President Reagan’s Solicitor General, Charles Fried, has now joined in today’s Wall Street Journal (available here).  The money quote:

“It may just be that Mr. Stimson is annoyed that his overstretched staff lawyers are opposed by highly trained and motivated elite lawyers working in fancy offices with art work in the corridors and free lunch laid on in sumptuous cafeterias. But it has ever been so; it is the American way. The right to representation does not usually mean representation by the best, brightest and sleekest. That in this case it does is just an irony – one to savor, not deplore.

It is no surprise that firms like Wilmer Hale (which represents both Big Pharma and Tobacco Free Kids), Covington and Burling (which represents both Big Tobacco and Guantanamo detainees), and the other firms on Mr. Stimson’s hit list, are among the most sought-after by law school graduates, and retain the loyalty and enthusiasm of their partners. They offer their lawyers the profession at its best, and help assure that the rule of law is not just a slogan but a satisfying way of life.”

As a big-firm alumnus, I might quibble a bit with Fried’s claim that big firm practice offers a “satisfying way of life”–but he’s absolutely right that the participation of corporate-funded defense firms on detainees’ behalf is something that’s particularly praiseworthy about the American legal system.
 

End the Opium War

Anne Applebaum calls for ending the Opium War in Afghanistan.

Excerpt:

The director of the Senlis Council, a group that studies the drug problem in Afghanistan, told me he reckons that the best way to “ensure more Western soldiers get killed” is to expand poppy eradication.

Besides, things really could get worse. It isn’t so hard to imagine, two or three years down the line, yet another emergency presidential speech, calling for a “surge” of troops to southern Afghanistan – where impoverished villagers, having turned against the West, are joining the Taliban in droves. Before we get there, maybe it’s worth letting some legal poppies bloom.

For more on this, go here.

Next Up: Democrats’ Plan for Tax Augmentation

The Washington Post reports:

[Sen. Chuck] Hagel, a Vietnam veteran, angrily condemned the “escalation” of the [Iraq] war. “To ask our young men and women to sacrifice their lives to be put in the middle of a civil war is … morally wrong. It’s tactically, strategically, militarily wrong.”

“I don’t see it, and the president doesn’t see it, as an escalation,” [Secretary of State Condoleezza] Rice replied.

Hagel looked stunned. “Putting 22,000 new troops, more troops in, is not an escalation?”

“Escalation is not just a matter of how many numbers you put in,” Rice ventured.

“Would you call it a decrease?” Hagel pressed.

“I would call it, Senator, an augmentation.”