Tag: defense

Our ‘Reassured’ Allies

Justin Logan beat me to the punch, but Robert Kagan and Dan Blumenthal’s op-ed in the Washington Post warrants more than just one comment. Kagan and Blumenthal fret that the Obama administration’s policy of “strategic reassurance” is sure to fail. Aimed at encouraging Russia and China, especially, to cooperate with the United States in dealing with a number of common threats, the two predict that the policy will succeed only in making “American allies nervous.”

Maybe that wouldn’t be such a bad thing. Not that we should go around making our allies nervous just for the heck of it, but I worry that our allies have grown, well, too comfortable with the current state of affairs in which American taxpayers and American troops bear a disproportionate share of the costs of securing global peace and prosperity.

And who can blame them? From the perspective of our allies in East Asia (chiefly the Japanese and the South Koreans), and for the Europeans tucked safely within NATO, getting the Americans to pay the costs, and assume the risks, associated with policing the world is a pretty good gig.

The same Robert Kagan made this point explicitly, if somewhat crudely, in his book Of Paradise and Power, when he cast the United States in the heroic role as sheriff, while our wealthy allies were portrayed as cowardly, sniveling townspeople, or, worse, saloon keepers who benefited from the protection of the Americans while selling booze to the bad guys.

foto_high_noon_gary_cooper

For at least two decades, we have adopted a strategy designed to comfort our allies. Our goal has been to discourage them from taking prudent steps to defend themselves. Many Americans are beginning to appreciate just how short-sighted this policy was, and is. Such military capabilities might have proved useful in Afghanistan, for example, and they might ultimately serve a purpose in checking Russian and Chinese ambitions, which would be particularly important if these two countries prove as aggressive as Kagan and Blumenthal claim.

Instead, we have a group of militarily weak and comfortable allies who spend a fraction of what Americans spend on defense, and who can muster political will with respect to foreign policy only when it entails criticizing the United States for not doing enough. In other words, we are reaping what we sowed.

But don’t take my word for it. Vassilis Kaskarelis, the Greek ambassador to the United States, bluntly explained the disconnect between what we want our allies to do, and what they are willing to do. As reported by the Washington Times:

NATO members’ reluctance to assume a larger role in Afghanistan is partly the legacy of U.S. military protection, which allowed Europeans to stress social programs over defense for decades, the Greek ambassador to the United States said.

“For 40 years, you have a system [of] not bothering about military, security and stability expenses,” [Mr.] Kaskarelis told editors and reporters of The Washington Times. “Because these issues were handled by the United States after World War II … everybody was happy.”

[…]

Mr. Kaskarelis said…that most European governments support the war in Afghanistan but lack the military infrastructure to contribute as equal partners.

“They don’t have the capabilities, because in the last 50 years, the U.S. offered an umbrella in terms of military, security and stability,” he said. “You had the phenomenon [in which] most of the successful European economies – countries like France, Germany, the Scandinavians – channeled all the funds they had on social issues, health care, pensions, you name it.”

Mr. Kaskarelis noted that this system grew out of the wreckage of World War II and that without U.S. aid, his own country “wouldn’t exist today” as an independent, democratic state. But to readjust is difficult, he said.

“Can you imagine how a government can sell such … an idea to its general public without having a revolution? They cover the expense of the hospital, but to say, ‘We won’t cover 100 percent of your medical expenses, we will start covering 80 percent, because the other 20 percent [will be used] to upgrade our military capabilities to be used in NATO and Afghanistan. Can you imagine this?”

(H/T Charles Zakaib)

Actually, I can “imagine” a time when other countries are responsible for their own defense. Indeed, I wrote a book on the subject. Maybe I’ll send Amb. Kaskarelis a copy? And while I’m at it, perhaps Messrs. Kagan and Blumenthal should get one too?

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.

On What Larger Theory Is Neoconservatism Based?

There have been some interesting writings coming out of AEI’s new Center for Defense Studies recently.  On Friday, Daniel Blumenthal offered some thoughts on China.  In the course of making the case that Chinese leaders should realize that we are not trying to contain China, he wrote the following:

Blumenthal- Daniel-150If countries acted in accordance with rational actor theories of political science, the Chinese would be pretty well assured that we are not going to contain it. We have made clear across administrations that we welcome China’s rise as a great power and urge it to act as a responsible one.

But countries do not act in accordance with political science theories.

Later in the piece, he wrote the following:

China is not the only country that is rising. So is India. But we do not worry about India’s rise. That is because India is a democracy. Almost everything it does is transparent to us.   We share liberal values with India, including the desire to strengthen the post-World War II liberal international order of open trade and investment and the general desire among democracies to settle internal and external disputes peacefully and democratically. The fact that China is not a democracy matters greatly as it rises. It makes its rise more disruptive as countries have to divine its intentions and observe the gap between its rhetorical policy of a “Peaceful Rise” and some of its actions that are inconsistent with a peaceful rise.

He closed thusly:

Wouldn’t it be nice if China got on board with all the post-modern, feel-good notions about international politics put forth by the Obama Administration? In the 21st century, says the Obama team, all countries have common interests in confronting transnational issues like climate change and proliferation. Sorry guys, those who lead China think 21st century international politics will look more or less like it did in the past. They favor good old fashioned power politics. Unfortunately for Obama, that forces us to do the same.

There’s an awful lot of interesting stuff going on here.  First, Blumenthal’s claim that “countries do not act in accordance with political science theories” is strangely incoherent.  As his second and third quotes above make clear, Blumenthal has a political science theory–two actually.

With respect to India, the theory he is expounding is called “liberalism” in IR jargon.  This theory places the causes of war at the so-called “second image” level: wars occur because some states are bad and their badness causes them to do bad things.  India being a good (democratic) state means we should be friends with it.  (There is another variant of liberalism that centers on international institutions, which is mostly but sometimes not bound up with the democracy-focused version.)

In the latter paragraph about China, Blumenthal looks like he’s dropped liberalism and glommed onto traditional balance-of-power realism: that is, as a state’s power grows it wants more influence at the international level; positions in the balance of power change in a zero-sum fashion; as China grows richer it will seek a larger security role and we will not want to afford it such a role.  “Good old fashioned power politics,” as Blumenthal calls it.

What’s most curious is Blumenthal’s seeming desire to dismiss the very idea of political science theories.  My colleague Ben Friedman has dealt with this concept before, noting

efforts to weigh the costs of war inevitably involve theories of how the world works. As my Professor Steve Van Evera likes to point out, foreign policy makers can use good or bad theories to guide their actions, but if they attempt the slightest foresight, they cannot have none. In other words, there is no such thing as foreign policy without foreign policy theory.

That is, without a theory about how the world works, we would be simply paralyzed by the prospect of issuing advice on foreign policy.

Today, Gary Schmitt at AEI wrote the following in criticizing Andrew Bacevich:

the real, underlying point of not only this particular piece but his views more generally is one connected to his own particular brand of conservative Catholicism.  For Bacevich, the U.S. is too secular, too trade happy, too materialist. (”The exploitation of women” referred in his article is not, as presumably the Post editors thought, about “equal pay for equal work” but more likely about the sexual objectification of women.)  You see, America is really a nation of imperfect men, marked by original sin, who have no right to take the lead globally.  Our real concern should be with our own failings-not American preeminence.

Taking his lead from Reinhold Niebuhr, Bacevich believes we are on an utopian mission to remake the world–or, in this instance, the Muslim world; it is a program that is immoral both because it is impossible (and hence counterproductive) given human nature and because, in pursuing it, we adopt policies that chip away at our own morality.  (The ends begin to justify the means, etc, etc.)  The more limited our ambitions in Bacevich’s view, the less damage we do to ourselves and others.

All of which contains a kernel of truth–but only a kernel.  Whatever problems we face domestically, it is just an historical fact that a broader American vision abroad has typically made us a better people at home.  Nor is there any evidence that a less expansive (and hence less expensive) foreign and defense policy would free up monies that miraculously would solve a problem like poverty or second-rate schools.  To the contrary, more government funds could well confound finding the policies that would actually help alleviate those problems. However, the larger point is that Bacevich and other conservative critics, like George Will, are standing on unsound ground when they argue that the transformative goal of the Long War is utopian.  It might be long and it might be difficult but, if anything, the evidence so far suggests that the establishment of decent democratic regimes is possible in all kinds of regions and in countries with diverse cultural histories.  That hardly means that failure in the Long War isn’t possible; but to hear Bacevich and others tell it, is inevitable. (emphasis mine)

The italicized portion above is just bizarre.  In Schmitt’s reading, spending tax dollars on welfare or education “could well confound finding the policies that would actually help alleviate those problems.”  This is a fairly straightforward conservative argument.  What’s strange is that Schmitt makes the argument that while the U.S. government likely could not figure out how to improve education or the general welfare in the United States, it can parachute into faraway countries and improve the governance over there.  Or it at least ought to try, since “a broader American vision abroad has typically made us a better people at home.” This is, to my mind, utterly, profoundly incoherent.  I think the most important point is that we ought not to send our military overseas to kill and die so that we can be “a better people at home.”  But I wonder how Schmitt’s view fits into the argument made by Brian Schmidt and Michael Williams in this article.  For Schmidt and Williams, neoconservative views on foreign policy are merely an extension of their domestic policy.  To wit:

A social order based purely on narrowly egoistic interests, neoconservatives argue, is unlikely to survive–and the closer one comes to it, the less liveable and sustainable society will become.  Unable to generate a compelling vision of the collective public interest, such a society would be incapable of maintaining itself internally or defending itself externally.  As a consequence, neoconservatism regards the ideas at the core of many forms of modern political and economic rationalism–that such a vision of interest can be the foundation for social order–as both wrong and dangerous.  It is wrong because all functioning polities require some sense of shared values and common vision of the public interest in order to maintain themselves.  It is dangerous because a purely egoistic conception of interest may actually contribute to the erosion of this sense of the public interest, and the individual habits of social virtue and commitment to common values that sustain it.

I am reminded of Irving Kristol’s statement that “A nation whose politics turn on the cost of false teeth is a nation whose politics are squalid.” It’s something of a parlor game in IR to debate whether neoconservatism is its own IR theory; whether it’s a theory at all, of anything; whether it’s really just liberalism; et cetera, but what would be really good to have is a clear statement that could be scrutinized on its own merit.  Until then one is left guessing or, at best, turning up weird conspiracy theories about Leo Strauss and the University of Chicago on the internet.

Prosecutors Should Not Be Allowed to Fabricate Evidence

In 1977, county attorney David Richter and assistant county attorney Joseph Hrvol worked side by side with police to investigate and “solve” the notorious murder of a former police officer in Pottawattamie County, Iowa. The prosecutors fabricated evidence and used it to charge and convict Curtis McGhee and Terry Harrington, sending them to prison for 25 years.

After the convictions were overturned for prosecutorial misconduct, McGhee and Harrington sued the county and prosecutors. The defendants in that civil suit invoked the absolute immunity generally afforded prosecutors to try to escape liability. After the Eighth Circuit ruled against them, the Supreme Court agreed to review the case.

On Friday, Cato joined the National Association of Criminal Defense Lawyers and the ACLU on a brief supporting the men unjustly imprisoned. We argue that prosecutors should be responsible for their role in manufacturing a false “case,” just as police officers would be under the same circumstances. As the Court has held, prosecutors enjoy absolute immunity only during the prosecutorial phase of a case, not its investigatory phase. Were prosecutors to receive absolute immunity here, citizens would have no protection from or recourse against prosecutors who frame the innocent by fabricating evidence and then using that evidence to convict them.

To read Cato’s brief in the case of Pottawattamie County v. McGhee, see here.

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.

Sticking Around Afghanistan Forever?

I’ll confess one of the arguments that I’ve never understood is the claim that the U.S. “abandoned” Afghanistan after aiding the Mujahadeen in the latter’s battle against the Soviet Union.  Yet Secretary of Defense Robert Gates apparently is the latest proponent of this view.

Reports the Washington Post:

Defense Secretary Robert M. Gates said in an interview broadcast this week that the United States would not repeat the mistake of abandoning Afghanistan, vowing that “both Afghanistan and Pakistan can count on us for the long term.”

Just what does he believe we should have done?  Obviously, the Afghans didn’t want us to try to govern them.  Any attempt to impose a regime on them through Kabul would have met the same resistance that defeated the Soviets.  Backing a favored warlord or two would have just involved America in the ensuing conflict. 

Nor would carpet-bombing Afghanistan with dollar bills starting in 1989 after the Soviets withdrew have led to enlightened, liberal Western governance and social transformation.  Humanitarian aid sounds good, but as we’ve (re)discovered recently, building schools doesn’t get you far if there’s little or no security and kids are afraid to attend.  And a half century of foreign experience has demonstrated that recipients almost always take the money and do what they want – principally maintaining power by rewarding friends and punishing enemies.  The likelihood of the U.S doing any better in tribal Afghanistan as its varied peoples shifted from resisting outsiders to fighting each other is a fantasy.

The best thing the U.S. government could do for the long-term is get out of the way.  Washington has eliminated al-Qaeda as an effective transnational terrorist force.  The U.S. should leave nation-building to others, namely the Afghans and Pakistanis.  Only Afghanistan and Pakistan can confront the overwhelming challenges facing both nations.

Senate Votes to End Production of F-22 Raptor

As I have written previously, President Obama and the members of Congress who voted to kill funding for the F-22 did the right thing.

The Washington Post reports:

The Senate voted Tuesday to kill the nation’s premier fighter-jet program, embracing by a 58 to 40 margin the argument of President Obama and his top military advisers that more F-22s are not needed for the nation’s defense and would be a costly drag on the Pentagon’s budget in an era of small wars and counterinsurgency efforts.

While this vote marks a step in the right direction, the fight isn’t over. The F-22’s supporters in the House inserted additional monies in the defense authorization bill, and the differences will need to be reconciled in conference. But the vote for the Levin-McCain amendment signals that Congress will take seriously President Obama and Secretary Gates’ intent to bring some measure of rationality to defense budgeting.

The Raptor’s whopping price tag— nearly $350 million per aircraft counting costs over the life of the program— and its poor air-to-ground capabilities always undermined the case for building more than the 187 already programmed.

In the past week, Congress has learned more about the F-22’s poor maintenance record, which has driven the operating costs well above those of any comparable fighter. And, of course, the plane hasn’t seen action over either Iraq or Afghanistan, and likely never will.

Beyond the F-22 and the Joint Strike Fighter, we need a renewed emphasis in military procurement on cost containment. This can only occur within an environment of shrinking defense budgets. Defense contractors who are best able to meet stringent cost and quality standards will win the privilege of providing our military with the necessary tools, but at far less expense to the taxpayers. And those who cannot will have to find other business.