Tag: military

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.

Another Day, Another Tranche of Afghanistan Reading Material

Item: The Coalition for a Realistic Foreign Policy, a group of concerned scholars and authors who work on international security and U.S. foreign policy, have issued an open letter to President Obama warning him not to expand U.S. involvement in that country.  (Full disclosure: I was a signatory.)  The list of signatories includes many of the scholars who urged President Bush not to invade Iraq.  Politico was the first to run the story: see here.

Item: Via Michael Cohen, former CIA counterterrorism honcho Paul Pillar takes to the pages of the Washington Post to think through the concept of “safe havens” in Afghanistan.  His conclusion?

Among the many parallels being offered between Afghanistan and the Vietnam War, one of the most disturbing concerns inadequate examination of core assumptions. The Johnson administration was just as meticulous as the Obama administration is being in examining counterinsurgent strategies and the forces required to execute them. But most American discourse about Vietnam in the early and mid-1960s took for granted the key – and flawed – assumptions underlying the whole effort: that a loss of Vietnam would mean that other Asian countries would fall like dominoes to communism, and that a retreat from the commitment to Vietnam would gravely harm U.S. credibility.

The Obama administration and other participants in the debate about expanding the counterinsurgency effort in Afghanistan can still avoid comparable error. But this would require not merely invoking Sept. 11 and taking for granted that a haven in Afghanistan would mean the difference between repeating and not repeating that horror. It would instead mean presenting a convincing case about how such a haven would significantly increase the terrorist danger to the United States. That case has not yet been made.

Item: Michael Crowley offers a piece in the New Republic that strongly implies but doesn’t quite come out and say that President Obama should ignore the skeptics and the political risks and wade deeper into Afghanistan.  The piece swallows whole the conventional wisdom narrative on Iraq–that the Surge amounted not to a combination of defining down “victory” and appeasement of Sunni tribes but rather a borderline miracle whereby Gen. Petraeus loosed his wonder-working COIN doctrine on the maelstrom of violence in that country and produced a strategic victory.  Crowley then uses this narrative to frame the decision before President Obama.  Still, he writes

[I]f the definition of success isn’t clear to the Obama team, the definition of defeat may be. Bush argued unabashedly that Iraq had become “the central front in the war on terror” and that withdrawing before the country had stabilized would hand Al Qaeda not only a strategic but a moral victory. Current administration officials don’t publicly articulate the same rationale when discussing Afghanistan. But former CIA official Bruce Riedel, a regional expert who led the White House’s Afghanistan-Pakistan review earlier this year, cited it at the Brookings panel held in August. “The triumph of jihadism or the jihadism of Al Qaeda and the Taliban in driving NATO out of Afghanistan would resonate throughout the Islamic World. This would be a victory on par with the destruction of the Soviet Union in the 1990s,” Riedel said. “[T]he stakes are enormous.”

Obama may have one last thing in common with Bush: personal pride. Bush was determined to prevail in Iraq because he had invaded it. And, while Obama, of course, had nothing to do with the invasion of Afghanistan, he has long supported the campaign there–including during the presidential campaign as a foil for his opposition to the Iraq war. Speaking before a group of veterans last month, Obama called Afghanistan a “war of necessity”–a phrase which politically invests him deeper in the fight. “The president has boxed himself in,” says one person who has advised the administration on military strategy. “The worst possible place to be is that our justification for being in a war is that we’re in a war.”

Lots to chew on.

Pervasive Illiteracy in the Afghan National Army

Afghan_SigmaMatt Yglesias has a lot of smart things to say about the pervasive illiteracy plaguing the Afghan National Army. Upwards of 75 to 90 percent (according to varying estimates) of the ANA is illiterate.

As Ted Galen Carpenter and I argue in our recent Cato white paper Escaping the Graveyard of Empires: A Strategy to Exit Afghanistan, this lack of basic education prevents many officers from filling out arrest reports, equipment and supply requests, and arguing before a judge or prosecutor. And as Marine 1st Lt. Justin Greico argues, “Paperwork, evidence, processing—they don’t know how to do it…You can’t get a policeman to take a statement if he can’t read and write.”

Yglesias notes:

This strikes me as an object lesson in the importance of realistic goal-setting. The Afghan National Army is largely illiterate because Afghanistan is largely illiterate…we just need an ANA that’s not likely to be overrun by its adversaries. But if we have the more ambitious goal of created [sic] an effectively administered centralized state, then the lack of literacy becomes a huge problem. And a problem without an obvious solution on a realistic time frame [emphasis mine].

Such high levels of illiteracy serves to highlight the absurd idea that the United States has the resources (and the legitimacy) to “change entire societies,” in the words of retired U.S. Army lieutenant colonel John Nagl. Eight years ago, Max Boot, fellow for National Security Studies at the Council on Foreign Relations, likened the Afghan mission to British colonial rule:

Afghanistan and other troubled lands today cry out for the sort of enlightened foreign administration once provided by self-confident Englishmen in jodhpurs and pith helmets…This was supposed to be ‘for the good of the natives,’ a phrase that once made progressives snort in derision, but may be taken more seriously after the left’s conversion (or, rather, reversion) in the 1990s to the cause of ‘humanitarian’ interventions. [emphasis mine]

But as I highlighted yesterday at the Cato event “Should the United States Withdraw from Afghanistan?” (which you can view in its entirety here), policymakers must start narrowing their objectives in Afghanistan, a point Yglesias stresses above. Heck, as I argued yesterday, rational people in the United States are having difficulty convincing delusional types here in America that Barack Obama is their legitimate president. I am baffled by people who think that we have the power to increase the legitimacy of the Afghan government. It’s also ironic that many conservatives (possibly brainwashed by neo-con ideology) who oppose government intervention at home believe the U.S. government can bring about liberty and peace worldwide. These self-identified “conservatives” essentially have a faith in government planning.

Yet these conservatives share a view common among the political and military elite, which is that if America pours enough time and resources—possibly hundreds of thousands of troops for another 12 to 14 years—Washington could really turn Afghanistan around.

However, there is a reason why the war in Afghanistan ranks at or near the bottom of polls tracking issues important to the American public, and why most Americans who do have an opinion about the war oppose it (57 percent in the latest CNN poll released on Sept. 1) and oppose sending more combat troops (56 percent in the McClatchy-Ipsos survey, also released on Sept. 1). It’s because Americans understand intuitively that the question about Afghanistan is not about whether it is winnable, but whether it constitutes a vital national security interest. An essential national debate about whether we really want to double down in Afghanistan has yet take place. America still does not have a clearly articulated goal. This is why the conventional wisdom surrounding the war—about whether we can build key institutions and create a legitimate political system—is not so much misguided as it is misplaced.

The issue is not about whether we can rebuild Afghanistan but whether we should. On both accounts the mission looks troubling, but this distinction is often times overlooked.

Afghanistan Now Is Truly Barack Obama’s War

Afghanistan is voting for president. Unfortunately, the outcome, even if a fair result, is unlikely to matter much. The war will continue.

In 2008 President Barack Obama was seen as the anti-war candidate.  In fact, his reputation reflected his prescient opposition to the Iraq war, but he said little to suggest that he was out of sync with Washington’s interventionist consensus.

We see his status quo foreign policies with his support for continued NATO expansion as well as maintaining American garrisons around the globe, including in South Korea and Japan.  But his escalation in Afghanistan most obviously demonstrates that he is a man of the interventionist left.

He is now making it clear that Afghanistan is his war.  Reports Reuters:

President Barack Obama will seek to shore up U.S. public support for the war in Afghanistan on Monday just days before an Afghan presidential election widely seen as a major test of his revamped strategy.

Obama will address a military veterans group in Phoenix at a time when U.S. combat deaths are rising amid a troop buildup against a resurgent Taliban, and polls show a softening of public backing for the eight-year-old war.

Hoping to reassure Americans, Obama is expected to sketch out why he believes the Afghanistan policy he unveiled earlier this year is working and why the United States must remain committed to stabilizing the war-ravaged country.

The political risks for him are enormous.  Anything bad that happens in Iraq can be blamed on George W. Bush.  But any failure in America’s nation-building mission in Afghanistan – and failure is the most likely outcome in any nation-building in Afghanistan – will be seen as his responsibility.

And American and other coalition military personnel, as well as the Afghan people, will pay the price.

Even as America’s Troops Leave Iraq, the Waste Goes On

The U.S. government has been providing so-called foreign aid for decades, but the waste never stops.  So it is in Iraq.

Reports Stars & Stripes:

Provincial reconstruction teams in Iraq are scrambling to submit a large number of multimillion-dollar aid project proposals by July 15, something critics suggest will result in a rash of big construction projects they were never intended to run.

Further, they say, big-budget projects are being put forward too quickly, are too ambitious given the scheduled 2011 withdrawal from Iraq and are crowding out simpler schemes.

“Our goal is not necessarily to help [Iraqis] with building projects,” said Rick Gohde, an engineer with the Diwaniyah provincial reconstruction team, known as PRT. “We are supposed to be beyond that. We are supposed to be training them to sustain themselves as we are getting ready to leave.”

Capt. Doug Weaver, 28, a civil affairs soldier who acts as a liaison between the military and the Diwaniyah PRT, said Monday that close to $600 million of military aid funding was made available to the PRTs last month countrywide through the Commanders Emergency Relief Program, or CERP. The funds, made available by Congress, are only available through September 30 and the deadline for project proposals exceeding $1 million is next Wednesday, officials said.

Weaver, who studied industrial engineering before he deployed, identified numerous big projects in Diwaniyah vying for CERP funds, including new electrical substations ($1 million to $1.5 million), city sewers ($750,000 to $1.25 million), an agricultural school dormitory ($1.2 million), women’s centers to provide job training for divorcees and widows ($2 million), vocational schools ($500,000 each) and upgrades to Iraqi government communications networks.

Iraqi contractors will bid for the construction work, which is expected to employ more than 1,000 local laborers in Diwaniyah alone.

But Gohde said the PRTs are not supposed to be involved in the sort of “bricks and mortar” construction that most of the big budget projects involve.

In southern Afghanistan, construction projects supported by foreign aid, such as schools and medical clinics, stand as empty shells because Taliban militants have frightened students and patients away.

“There’s been some of that in this country,” Gohde said. “I’ve heard of schools being built with no furniture or teachers. There are projects that are constructed with the best of intentions that are not utilized in the original intent or utilized at all,” he said.

Oh, well.  It’s only money, as they say.   And with Uncle Sam running a roughly $2 trillion deficit this year, what’s a few wasted millions (or even hundreds of millions) among friends?  I’m sure next time the government will get it right!

Whiskey Tango Foxtrot Moment in Afghanistan

In yesterday’s Washington Post, veteran newsman Bob Woodward recounts a recent meeting between National Security Advisor James Jones and a few dozen Marine officers in Afghanistan’s Helmand province under the command of Marine Brig. Gen. Lawrence D. Nicholson. 

The subject on everyone’s mind: force levels. Saying that he was “a little light,” Nicholson hinted that he could use more forces, probably thousands more. “We don’t have enough force to go everywhere,” Nicholson said.

Of course he doesn’t. One senior military commander confided, in Woodward’s telling, ”that there would need to be more than 100,000 troops to execute the counterinsurgency strategy of holding areas and towns after clearing out the Taliban insurgents. That is at least 32,000 more than the 68,000 currently authorized.”

So, Nicholson and other commanders were asking: Can we expect to receive additional troops in Afghanistan any time soon?

Jones’s answer: don’t bet on it.

The retired Marine Corps general reminded his audience in Helmand that Obama has approved two increases already. Going beyond merely an endorsement of the outgoing Bush admiministration’s decision to more than double the force in Afghanistan, Obama accepted the recommendation of his advisers to send an additional 17,000, and then shortly thereafter another 4,000.

Well, Jones went on, after all those additional troops,…if there were new requests for force now, the president would quite likely have “a Whiskey Tango Foxtrot moment.” Everyone in the room caught the phonetic reference to WTF – which in the military and elsewhere means “What the [expletive]?”

Nicholson and his colonels – all or nearly all veterans of Iraq – seemed to blanch at the unambiguous message that this might be all the troops they were going to get.

Nicholson and his Marines should be concerned. But so should all Americans. The men and women in our military have been given a mission that is highly dependent upon a very large number of troops, and they don’t have a very large number of troops. The clear, hold and build strategy is dangerous and difficult – even when you have the troop levels that the military’s doctrine recommends: 20 troops per 1,000 indigenous population. In a country the size of Afghanistan (with an estimated population of 33 million), that wouldn’t be 100,000 troops, that would be 660,000 troops.

Pacifying all of Afghanistan would be nearly impossible with one half that number of troops. It is foolhardy to even attempt such a mission with less than a sixth that many.

So, what gives? (Or, as the military folks might say, “Whiskey, Tango, Foxtrot?”)

It is doubtful that anyone in the White House, the Pentagon, or on Capitol Hill honestly believes that 70,000 U.S. troops can turn Afghanistan into a central Asian version of Alabama – or even Algeria, for that matter. They might reasonably object that they aren’t trying to pacify the whole country, but rather the most restive provinces in the south and east. Perhaps barely 10 million people live there (which my calculator says would require a force of 200,000). Besides, they might go on, the 20 per 1,000 figure is just a guideline, just a rule-of-thumb. Some missions have succeeded with fewer than that ratio of troops, just as other missions have failed with troop ratios in excess of 20 : 1,000.

These seem to be nothing more than thin rationalizations. They reflect the fact that the American public would not support an open-ended mission in Afghanistan that would occupy essentially all of our Marine and Army personnel for many years. The “70,000 troops for who knows how long” is a political statement. They are pursuing a strategy shaped by focus groups and polls, rather than by doctrine and common sense.

No, that is not an argument for more troops. It is not an argument for ignoring public sentiment. It is an argument for a different mission.

The public’s growing ambivalence about the war in Afghanistan reflects a well-placed broader skepticism about population-centric counterinsurgency that are heavily dependent upon very large concentrations of troops staying in country for a very long period of time. Americans don’t support such missions, because the benefits don’t outweigh the costs. And they likely never will. They are equally skeptical of COIN’s intellectual cousin, ambitious nation-building projects.

And if I’m right, and if no one actually believes that killing suspected Taliban, destroying fields of poppies, building roads and bridges,  establishing judicial standards and training Afghan police is actually going to work, then, well,….

Whiskey Tango Foxtrot?

The mission in Afghanistan, especially the troop increases, appear more and more as face-saving gestures. A show of wanting to do something, even if policymakers doubt that it will actually succeed. It is a delaying action, a postponing of the inevitable, a kicking the can down the road.

I hope I’m wrong. I hope that a miracle happens. I hope that the Taliban disappears. That Osama bin Laden, Ayman al-Zawahiri, Mullah Mohammed Omar, Jalaluddin Haqqani, Gulbuddin Hekmatyar, and every other bad guy I can name winds up dead on an Afghan battlefield. Tomorrow, preferably. I hope that all Afghans (girls and boys) get an education and earn a decent living. I hope that Hamid Karzai learns how to govern, Afghan judges learn how to judge, and that the Afghan National Army and Afghan National Police quickly learn how to defend their own country.

In short, I hope that the people who are crafting our Afghan strategy know something that I don’t.

I fear, however, that the deaths and grievous injuries endured by our military personnel during this interim period, which may run for years or even decades, as we seek “peace with honor” or “a decent interval” (or pick your own favorite Vietnam cliche), will weigh heavily on the consciences of policy makers if, in the end, they have merely burdened these men and women with an impossible task.

Ask Robert McNamara how that feels.

New Government of Honduras Takes a Wrong Turn

Facing mounting international pressure to reinstall a would-be despot, the provisional government of Honduras is taking a very wrong turn by asking the National Assembly to temporarily extend curfew powers and limit basic individual liberties.

The government claims that the measures, which will be in place for 72 hours, are justified to prevent any civil unrest given the imminent return of former president Manuel Zelaya to the country.  However, the provisional authorities are actually undermining the rule of law and constitutional liberties that they claimed to be protecting when removing Zelaya from power last Sunday.

The individual rights and liberties that would be affected: the inviolability of homes, the right to protest peacefully, the guarantee against being held for more than 24 hours without charges, and the freedom to move around the country undisturbed.

These actions are unjustified. By moving to take away civil liberties from Hondurans, the provisional government undercuts its moral standing vis-à-vis the increasingly autocratic rule of Manuel Zelaya it came to replace. Even if these measures are meant to be temporary, history shows that once a government claims emergency powers, it is very hard to completely relinquish them once the “emergency” is gone.

Moreover, these restrictions do little service to the argument of the new Honduran government that Zelaya’s removal was not a military coup d’état. Having the army policing the streets and curbing the free movement of people and their right to protest peacefully gives the impression that the military is in charge and calling the shots.

The Honduran government should scrap these measures and reassure the population that their individual rights and liberties guaranteed under the Honduran constitution will be fully respected.