Raymond Davis: Diplomatic Immunity v. US Impunity

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What happens with the Raymond Davis case, in the end, will likely not have very much to do with the Vienna Conventions. For that matter, we likely will never have enough of the unadulterated facts to know what should happen under the Vienna Conventions. But let’s suspend reality and see where an examination of the Vienna Conventions and the competing facts in the Davis case might take us.

As several reports have pointed out, there are numerous Vienna Conventions and the two that are likely to apply to Davis are the Vienna Convention of 1961 on Diplomatic Relations and the Vienna Convention of 1963 on Consular Relations. The VCs get wrapped in and out of discussions of passports and visa – so let’s separate and reassemble.

Diplomatic Passport. Our State Department issues passports needed for travel to other countries. Because of the State Department’s sole control over this document, it is looked at skeptically by Pakistanis in the Davis matter. The US says that, while it was not on him when he was captured and while it may have some discrepancies with other documents, Raymond Davis has a US issued diplomatic passport. Some have gone so far as to make this the equivalent of having diplomatic immunity, without anything more.

But that’s not how it works. Diplomatic immunity is derived, under VC 1961, by being validly attached to the embassy (mission) of a nation in which the “diplomat” is located. A diplomatic passport has no effect to attach someone to an embassy or mission. For example, a diplomat validly attached to the embassy in Iraq could travel to Germany on a diplomatic passport, but would not have immunity in Germany if they were not validly attached to the German embassy. So the question isn’t whether or not Davis had a diplomatic passport (or whether, if so, it was issued to an alias or issued after the fact), but whether he was validly attached to the US embassy at the time of his altercation in Pakistan.

Attachment to the US Mission/Embassy. For someone other than the head of mission, the general rule is that the sending nation (US) can “freely appoint” diplomats to its mission staff (Article 7), with a few caveats, and are then merely required to notify the receiving nation’s foreign ministry of the appointment/addition. The first caveat, also in Article 7, is that if the person being appointed is a military Read more →

The $258 of Intelligence You Bought This Year

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Congratulations to Steven Aftergood, whose persistent efforts to get the government to reveal the topline intelligence budget have finally paid off. Yesterday, the government officially announced that it spent $80.1 billion on intelligence in the last year, up 7% in just the last year and 100% since 9/11.

The government announced Thursday that it had spent $80.1 billion on intelligence activities over the past 12 months, disclosing for the first time not only the amount spent by civilian intelligence agencies but also by the military.

The so-called National Intelligence Program, run by the CIA and other agencies that report to the Director of National Intelligence, cost $53.1 billion in fiscal 2010, which ended Sept. 30, while the Military Intelligence Program cost an additional $27 billion.

[snip]

The disclosure Thursday that intelligence spending had risen to $80.1 billion, an increase of nearly 7 percent over the year before and a record high, led to immediate calls for fiscal restraint on Capitol Hill.

That’s $258 a year for every man, woman, and child in this country. $21 a month per person, or $86 for a family of four.

But don’t worry; I’m sure all the people losing their homes and relying on food stamps can afford that much intelligence. Think of it like a second phone bill–that’s undoubtedly where at least a chunk of that money is going.

In response to this admission, both DiFi and Silvestre Reyes issued statements promising improved fiscal oversight of the intelligence community. That’s great! They can have the phone companies fight over the right to get paid handsomely to spy on us!

Fourteen Other Incidences of Blackwater Firing on Iraqi Civilians

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The Bureau of Investigative Journalism says there are 14 incidences recorded in today’s Wikileaks dump alleging that Blackwater fired on Iraqi citizens (their site appears to be overloaded, so be persistent).

Two years before Nisour Square, on May 14 2005, the logs allege that Blackwater shot at a civilian car. The shooting reportedly killed the driver, but also injured his wife and child. According to the logs, the Blackwater guards drove on.

A year later, on May 2 2006, the logs claim that Blackwater guards opened fire on an ambulance attending the scene of an IED (Improvised Explosive Device) attack. Again, a civilian – the ambulance driver – was killed.

There are other cases where Blackwater guards were alleged to have shown disregard even for their own lives. On one occasion, US troops set up a road block after a car was seen dropping what looked like an IED. A Blackwater convoy ignored them, rushing past and detonating the bomb.

Feb 26 2007

While setting up the northern cordon site a Blackwater convoy bypassed heading south disregarding annihilator ed 3’ vehicle that was in the way. Convoy was struck by IED and did not appear to take any or significant damage.

Protests over Blackwater

In Iraq, outrage at Blackwater’s methods grew. A report dated February 2006 alleges that a Blackwater vehicle escorting US diplomats through Kirkuk had broken down and that guards opened fire on an approaching taxi, killing both civilian occupants.

The US Army report details how residents took to the streets in protest. Only after discussions with Iraqi security forces and local politicians, and the promise of a US State Department investigation, did the crowds disperse.

This last bit–the promises made in 2006, a year and a half before the Nissour Square incident, that State would conduct an investigation–are particularly troubling. Yes, I realize State was not going to stop using Blackwater in any case. But it’d be nice if we just fulfilled the promises we made to the Iraqis.

James Clapper Continues to Express Willingness to Allow GAO to Review Intelligence

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I have been pretty critical of Obama’s appointment of James Clapper to be Director of National Intelligence. And while I still have my concerns about Clapper’s close ties to the Intelligence Industrial Complex, I am heartened by Steven Aftergood’s report that Clapper continues to express a willingness to allow GAO to review intelligence functions.

DNI James R. Clapper expressed a considerably narrower view of what should be off-limits to GAO [than then National Security Advisor James Jones did in a letter sent in May] in public remarks (pdf) earlier this month:  “I am more concerned or sensitive about GAO getting into what I would consider sort of the core essence of intelligence – that is, evaluating sources and methods, critiquing national intelligence estimates, doing this sort of thing, which I think strikes at the very essence of what the intelligence committees were established to do.”Even so, he suggested that individual GAO staff members could also pursue such highly sensitive matters if this was formally done under direction of the intelligence committees:

“Now, [if] they want to have the GAO assist, detail GAO staff to – if they have the subject matter experts – to the committees. I think that’s fine as long as it’s done under the auspices of the committees when you’re getting at the core essence of what intelligence is and does,” Gen. Clapper said.

Well see when DNI submits its guidance on GAO oversight to Congress next May. But I applaud, at least thus far, Clapper’s sustained willingness to allow Congress to rely on GAO’s skills as it tries to conduct oversight of the intelligence community.

Update: Typo in headline fixed.

Fred Johnson Takes on Blackwater in Erik Prince’s Home Town

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Fred Johnson is the Democratic candidate for Congress in MI’s 2nd Congressional District.

When his opponent–Crazy Pete Hoekstra lackey Bill Huizenga–claimed to want to cut costs in a debate the other day, Johnson called him on his hypocrisy regarding cutting spending on military contractors, starting with Blackwater. [my transcript]

Johnson: When that one question [about Blackwater] came up [in an earlier debate], we have a private corporation, that is taking taxpayer dollars to basically making profit off of war, they all agree that yeah, they should keep on using those kind of entities. If we’re going to have everything on the table–if you’re really serious about spending, if you’re really serious about cutting back, trimming the budget–those kind of things have to go too. Not to mention that those kind of corporations are beyond the purview of the US Constitution, the US Code of Military Justice, and they often times present as much a headache when it comes to diplomacy and when it comes to good relations, some of those countries being our defense partners.

So it’s kind of disingenuous to say, you know, we have a prioritization. I’m talking about, not just talking about it, I’m talking about actually doing it. I’m talking about going down there with the vision and the courage to make those cuts.

Johnson’s call on Huizenga’s hypocrisy is interesting for two reasons. First, MI-2 includes Holland (where Johnson lives). That’s Erik Prince’s home town.

But just as interesting–the reason why Huizenga and other Republicans in this part of the world are particularly vulnerable to this claim of hypocrisy–since they’re reliant on funding from Prince’s sister Betsy and her hubby, Dick DeVos, and boast about being high school friends with Prince.

Mind you, Republicans nationally are dependent on DeVos cash. But at a local level this hypocritical demand from Republicans that we keep paying more for security services that make us less safe so that their donors’ families can keep getting rich is palpable.

Help Fred Johnson.

Obama’s Still Obfuscating about Domestic Surveillance

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Adam Serwer does a pretty thorough job debunking Obama’s lame effort to defend his civil liberties record.

When people start being concerned about, “You haven’t closed Guantánamo yet,” I say, listen, that’s something I wanted to get done by now, and I haven’t gotten done because of recalcitrance from the other side. Frankly, it’s an easy issue to demagogue. But what I have been able to do is to ban torture. I have been able to make sure that our intelligence agencies and our military operate under a core set of principles and rules that are true to our traditions of due process. People will say, “I don’t know — you’ve got your Justice Department out there that’s still using the state secrets doctrine to defend against some of these previous actions.” Well, I gave very specific instructions to the Department of Justice. What I’ve said is that we are not going to use a shroud of secrecy to excuse illegal behavior on our part. On the other hand, there are occasions where I’ve got to protect operatives in the field, their sources and their methods, because if those were revealed in open court, they could be subject to very great danger. There are going to be circumstances in which, yes, I can’t have every operation that we’re engaged in to deal with a very real terrorist threat. [my emphasis]

But I wanted to add one thing.

Obama suggests his Administration has only invoked state secrets to protect “operatives in the field.”

That’s the case only in one of the most notable state secrets invocations the Administration has made or sustained. Consider:

  • Jeppesen Dataplan
  • Al-Haramain
  • Al-Awlaki

I’ll grant that one of the things the Administration refuses to publicize about the al-Awlaki case is how they know what they know. And we know there are covert teams operating in Yemen, so it is probable that one of the things–though certainly not the only thing–they are protecting are those operatives in the field.

But in Jeppesen Dataplan, the government is protecting a publicly traded company from the backlash it would experience if its role in torture were confirmed. And it is protecting the governments that tortured on our behalf: Egypt and Morocco.

The government’s invocation of state secrets in al-Haramain has even less to do with protecting operatives in the field. In that case, the government is (again) protecting publicly traded companies from even more certain backlash from consumers. And it is protecting the details about how and the extent to which the government conducts domestic surveillance and data mining. The government is not protecting operatives in the field at all. On the contrary, the government is protecting itself from the wrath of its citizens. (He’s also protecting the prior Administration, including his current top terrorism advisor, John Brennan.)

And to hide that fact–to try to legitimize his government’s secrecy–Obama invents a largely bogus concern about men and women risking their lives overseas.

Though I guess I shouldn’t be surprised about that fact. After all, Obama’s flip-flop on FISA was the first big disappointment, the first promise he broke. From that point, it was clear Obama would place political considerations ahead of his stated commitment to civil liberties.

Which is, I guess, what his lame defense is all about.

So Much for the Effort to Control Corruption

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Sorry for the delay in blogging today–I got distracted with something.I should be back at this blogging thing shortly.

In the meantime, I wanted to link to this post Spencer did at Danger Room:

The Pentagon quietly announced yesterday that Rear Admiral Kathleen Dussault is out as commander of Task Force 2010, a unit co-established by General David Petraeus to ensure that the military’s contracting dollars in Afghanistan don’t inadvertently fund corrupt businesses, warlords or insurgents. A congressional report issued shortly before her arrival found that the U.S.’ lack of visibility into the practices of its often-shady subcontractors undermines Afghan stability. In an interview with Danger Room shortly after arriving in Kabul in June to stand up the command, Dussault predicted that getting the military out of the thicket of unintended kickbacks to “powerbrokers” and the Taliban would require “limiting some partnerships that we’re in right now, apply more controls in a number of them, and in some cases, we’re going to need to walk away from some providers.”

A spokesman for the NATO command in Afghanistan, Major Joel Harper, said that Dussault wasn’t fired and only “planned on having the job for four months.” Her team’s performance of what she called “financial forensics” contributed to Petraeus’s revised guidelines on troop contracting, and she participated in Kabul press briefings during its roll-out last week, Harper added. According to the top brass in Afghanistan, Dussault didn’t under-perform.

But the task force’s future operations are in question — and the Obama administration is engaging in a Hamlet-esque debate about how central anti-corruption efforts really are to the Afghanistan war. Dussault is a two-star admiral. Her replacement is an Army one-star, Brigadier General Ross Ridge.

I honestly think that if the Administration has formally decided that corruption is no big deal and that cracking down on corruption would hurt their war aims, they should formally announce that fact, along with a reminder that our tax payer dollars eventually fund this corruption.

And while they’re announcing that, maybe they can tell us what the war aim is in Afghanistan finally?

Six Years Later, US Still Trying to Find a Way to Keep Corrupt Contractor in Afghanistan

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The most depressing part of this McClatchy article on the corrupt USAID contracting in Afghanistan by the construction company, Louis Berger, are six-year old quotes calling for an alternative to Berger.

Behind the scenes, U.S. officials repeatedly have voiced frustration about the company’s work.

In May 2004 — three months after then-President George W. Bush publicly praised the company for its quick construction of a section of the Kabul-to-Kandahar Highway — then-U.S. Ambassador Zalmay Khalilzad raised concerns about Louis Berger.

“These problems are now beginning to interfere with the credibility of the U.S. Mission in Afghanistan, and require immediate corrective action,” he wrote.

Later that year, Patrick Fine, USAID’s top official in Afghanistan, questioned the quality of schools and clinics whose construction was overseen by Louis Berger. “It is time to cut our losses and put in place an alternative strategy,” he wrote.

Yet six years later, DOJ is preparing to sign either a non-prosecution or a deferred prosecution agreement with the company so that Louis Berger can continue to work in Afghanistan.

The decision to brush aside the allegations and the evidence and keep doing business with Louis Berger, underscores a persistent dilemma for the Obama administration in Afghanistan and elsewhere.

Cutting ties with suspect war-zone contractors in Afghanistan would threaten the administration’s effort to rebuild the country and begin withdrawing some of the nearly 100,000 U.S. troops there next July.

You know all those articles about the corruption of Karzai’s government? The claims that Afghans are just more tolerant of corruption than Americans? The suggestions that, because it’s a developing country, Afghans have to and do learn to tolerate corruption?

Either we’ve become a banana republic sooner than most people realized (perhaps with the FL county in 2000? Or before that?). Or all those attempts to blame Afghan culture for the corruption there are just lame excuses invented to help us overlook our own apparently intractable tolerance for corruption.

But one way or another, it helps to make Afghanistan far too expensive to achieve whatever “victory” our government pretends to be pursuing.

If Blackwater Couldn’t Keep Benazir Bhutto Safe, Why Is State Still Contracting with Them?

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When Erik Prince testified before the Oversight Committee on October 2, 2007, he boasted that no one under Blackwater’s protection had ever been seriously hurt or killed.

No individual protected by Blackwater has ever been killed or seriously injured. There is no better evidence of the skill and dedication of these men.

At precisely the same time as Prince was making that boast, Blackwater was negotiating a protection deal that would not end so successfully.

The Nation has previously reported on Blackwater’s work for the CIA and JSOC in Pakistan. New documents reveal a history of activity relating to Pakistan by Blackwater. Former Pakistani Prime Minister Benazir Bhutto worked with the company when she returned to Pakistan to campaign for the 2008 elections, according to the documents. In October 2007, when media reports emerged that Bhutto had hired “American security,” senior Blackwater official Robert Richer wrote to company executives, “We need to watch this carefully from a number of angles. If our name surfaces, the Pakistani press reaction will be very important. How that plays through the Muslim world will also need tracking.” Richer wrote that “we should be prepared to [sic] a communique from an affiliate of Al-Qaida if our name surfaces (BW). That will impact the security profile.” Clearly a word is missing in the e-mail or there is a typo that leaves unclear what Richer meant when he mentioned the Al Qaeda communiqué. Bhutto was assassinated two months later. Blackwater officials subsequently scheduled a meeting with her family representatives in Washington, in January 2008.

This detail–though not surprising–raises more questions than offer answers. Like what the hell word is that is missing before “communique”? Was Blackwater proposing to mitigate the PR problem of public association with Bhutto just as scrutiny over the Nissour Square massacre was most intense by inventing a fake communique, of some sort, from al Qaeda? (Elsewhere in Scahill’s piece, he describes a training course Blackwater offered on al Qaeda tactics, including propaganda. So presumably, they considered themselves experts in creating fake al Qaeda propaganda.

And if Blackwater had a previously unrevealed failure–a really costly, spectacular one–then why is State Department still contracting with them for such protective services? Not least given that Blackwater would presumably be protecting people in Afghanistan against some of the same creeps who presumably bested Blackwater when they assassinated Bhutto?

Moreover, given that the State Department gave Blackwater follow-on contracts after Blackwater failed to keep Bhutto safe, then have they at least done a real assessment of what went wrong? Last we heard from Blackwater publicly, they had a purportedly perfect record. But they don’t. And no one told us that. If we’re going to give another $120,000,000 to Blackwater, have we at least studied, first, what went wrong with Blackwater’s notable failure with Bhutto?

Blackwater Served as Monsanto’s Intelligence Arm

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Jeremy Scahill has a new piece on Blackwater that is fairly incendiary.

Among other things (I’ll have more to say later), he reveals that Blackwater provided Monsanto with security services in 2008-2009.

According to internal Total Intelligence communications, biotech giant Monsanto—the world’s largest supplier of genetically modified seeds—hired the firm in 2008–09. The relationship between the two companies appears to have been solidified in January 2008 when Total Intelligence chair Cofer Black traveled to Zurich to meet with Kevin Wilson, Monsanto’s security manager for global issues.

After the meeting in Zurich, Black sent an e-mail to other Blackwater executives, including to Prince and Prado at their Blackwater e-mail addresses. Black wrote that Wilson “understands that we can span collection from internet, to reach out, to boots on the ground on legit basis protecting the Monsanto [brand] name…. Ahead of the curve info and insight/heads up is what he is looking for.” Black added that Total Intelligence “would develop into acting as intel arm of Monsanto.” Black also noted that Monsanto was concerned about animal rights activists and that they discussed how Blackwater “could have our person(s) actually join [activist] group(s) legally.” Black wrote that initial payments to Total Intelligence would be paid out of Monsanto’s “generous protection budget” but would eventually become a line item in the company’s annual budget. He estimated the potential payments to Total Intelligence at between $100,000 and $500,000. According to documents, Monsanto paid Total Intelligence $127,000 in 2008 and $105,000 in 2009. [my emphasis]

Click through for the denial Monsanto’s Wilson gave to Scahill: basically, he denied that Monsanto used Blackwater to target animal rights activists, but did use them for “scanning the content of activist blogs and websites.” Not to mention work in Asia and Latin America.

It’s bad enough to have PA’s contractor developing intelligence reports on anti-drilling activists to send to lobbyists. It’s yet another thing when Blackwater’s thugs are tracking those activists.