[youtube]http://www.youtube.com/watch?v=YX4A-iSoDiU[/youtube]

Today’s Washington Post brings an update on the work being done by the Pentagon to develop artificial intelligence to the point that a drone can be automated in its decision on whether to kill.  The article points out that currently, when the CIA is making kill decisions on drone missions, that decision falls to the director, a position recently taken over by retired General David Petraeus.  In other words, then, the project appears to be an effort to develop a computer that can replace David Petraeus in decision-making.

Of course, this prospect raises many issues:

The prospect of machines able to perceive, reason and act in unscripted environments presents a challenge to the current understanding of international humanitarian law. The Geneva Conventions require belligerents to use discrimination and proportionality, standards that would demand that machines distinguish among enemy combatants, surrendering troops and civilians.

More potential problems:

Some experts also worry that hostile states or terrorist organizations could hack robotic systems and redirect them. Malfunctions also are a problem: In South Africa in 2007, a semiautonomous cannon fatally shot nine friendly soldiers.

The article notes that in response to issues surrounding the development of autonomy for weapons systems, a group calling itself the International Committee for Robot Arms Control (ICRAC) has been formed.  On the ICRAC website, we see this mission statement:

Given the rapid pace of development of military robotics and the pressing dangers that these pose to peace and international security and to civilians in war, we call upon the international community to urgently commence a discussion about an arms control regime to reduce the threat posed by these systems.

We propose that this discussion should consider the following:

• Their potential to lower the threshold of armed conflict;
• The prohibition of the development, deployment and use of armed autonomous unmanned systems; machines should not be allowed to make the decision to kill people;
• Limitations on the range and weapons carried by “man in the loop” unmanned systems and on their deployment in postures threatening to other states;
• A ban on arming unmanned systems with nuclear weapons;
• The prohibition of the development, deployment and use of robot space weapons.

Here’s how an 11th Circuit panel of Judges Joel Dubina, William Pryor, and Rosemary Barkett dismissed Jose Padilla’s objection to his conviction because of the abuse he suffered while in government custody in the South Carolina brig in the years leading up to his indictment.

Although we have never acknowledged the existence of the outrageous government conduct doctrine, we note that the actionable government misconduct must relate to the defendant’s underlying or charged criminal acts. “Outrageous government conduct occurs when law enforcement obtains a conviction for conduct beyond the defendant’s predisposition by employing methods that fail to comport with due process guarantees.” Ciszkowski, 492 F.2d at 1270 (majority opinion) (citing United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998)).

Padilla does not allege any government intrusion into his underlying criminal conduct. Padilla does not claim that the government caused him to leave the United States to be a jihad recruit. Instead, his claim of outrageous government conduct relates to alleged mistreatment he received at the brig after the conclusion of his criminal acts and prior to the indictment on the present charges. Thus, even if we were to adopt it, the doctrine does not apply in this situation, and the district court properly concluded that Padilla was not entitled to the relief he sought in his motion for dismissal of his indictment. See United States v. Morrison, 449 U.S. 361, 365–66, 101 S. Ct. 665, 668–69 (1981) (stating that “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate” and that the remedy in such situations “is limited to denying the prosecution the fruits of its transgression”). [my emphasis]

In other words, since the abuse the government inflicted on Padilla didn’t induce him to take up jihad, it is irrelevant to his guilt or innocence in this case.

Having thus dismissed this and a number of other objections, the Circuit also remanded his case for harsher sentencing. Here’s how Dubina and Pryor threw out Judge Marcia Cooke’s reduction of Padilla’s sentence based on this abuse.

Lastly, we have held that a district court may reduce a sentence to account for the harsh conditions of pretrial confinement, United States v. Presley, 345 F.3d 1205 (11th Cir. 2003), but that decision does not justify a downward departure as extensive as the one the district court gave Padilla. In Presley, we held that a district court had discretion to lower a 30 year sentence by two and one-half years when the defendant had been confined for six years prior to trial, five of which were spent in a 23 hour a day “lockdown.” Id. at 1219. Here, the district court reduced Padilla’s sentence by 110 months largely based on the harsh conditions of his prior confinement and then lowered his sentence by another 42 months to account for the time Padilla spent in pre-trial confinement, for a total of 152 months’ departure. Although some downward variance is allowed in this circumstance, the district court abused its discretion when it varied Padilla’s minimum Guidelines sentence downward by 42 percent, a period more than three and one-half times his period of actual pretrial confinement.6 Accordingly, the district court substantively erred in imposing Padilla’s sentence, and we vacate and remand his sentence to the district court for re-sentencing.

6 Although the government does not challenge the district court’s decision to reduce Padilla’s sentence by 42 months to reflect his time of pretrial confinement, we note that the Attorney General must already give Padilla credit for his time served in pretrial confinement. 18 U.S.C. § 3585(b); United States v. Wilson, 503 U.S. 329, 334, 112 S. Ct. 1351, 1354 (1992). On remand, we remind the district court that we “have determined that custody or official detention time is not credited toward a sentence until the convict is imprisoned.” Dawson v. Scott, 50 F.3d 884, 888 (11th Cir. 1995). [my emphasis]

What’s chilling about this passage is the failure to even describe Padilla’s treatment. Rather than question whether a complete elimination of due process and extreme psychological and physical abuse introduces real issues to merit a downward departure, the majority instead ignored the actual treatment Padilla experienced in making a technical argument for vacating the sentence.

In doing so, they even ignored the evidence presented at the sentencing hearing that Barkett laid out in her dissent.

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at the military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep. In sentencing Padilla, the trial judge accepted the facts of his confinement that had been presented both during the trial and at sentencing, which also included evidence about the impact on one’s mental health of prolonged isolation and solitary confinement, all of which were properly taken into account in deciding how much more confinement should be imposed. None of these factual findings, nor the trial judge’s consideration of them in fashioning Padilla’s sentence, are challenged on appeal by the government or the majority. Indeed, the majority accepts that our decision in Pressley allows for a sentence reduction to account for the conditions of defendant’s pre-trial confinement, but then asserts that Pressley does not permit a reduction as “extensive” as the one given here.

Barkett goes on to note what the thinness of the passage above makes clear: the majority offered no real reason to find that Cooke had abused her discretion, they just said she had and left it at that.

The majority fails to identify any clear error in the trial judge’s decision to vary downward, and instead arbitrarily concludes that the variance was just too much. In blatantly substituting its own view for the discretion of the trial judge, the majority contravenes the well-established principle that “[t]he fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51. This principle exists because “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case. The judge sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. (emphasis added) (internal quotation marks omitted). Thus, by declaring, without explanation, that the downward variance the trial judge applied in this case due to the harsh conditions of Padilla’s pre-trial confinement was too “extensive,” the majority impermissibly usurps the discretion of the sentencing judge in direct contravention of clear and unequivocal Supreme Court and Circuit precedent.

And while Barkett doesn’t say it, it seems important that the Circuit did not have to confront the obvious wreck Padilla’s treatment has made of him. No one wants to mention that, I guess, but it seems critically relevant to the sentencing question.

There’s one more sleeper issue in the opinion that may be far more important, generally, for terrorism cases moving forward. As part of the majority’s explanation for rejecting Cooke’s assertion that Padilla was likely to be a decreased recidivism risk when he got out of jail in his fifties, the majority argued that terrorists are like sex offenders.

Second, Padilla’s sentence unreasonably fails “to protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). The district court explained that given Padilla’s age when he is eligible to leave the criminal system, he will unlikely engage in new criminal conduct. [Doc. 1373, p. 14.] The government argues to the contrary that “the risk of recidivism upon release is very real. That risk is greater because Padilla has literally learned to kill like a terrorist.” [Gov’t Br., p. 75.] We agree that the district court failed to consider the nature of Padilla’s crimes and his terrorism training. Although recidivism ordinarily decreases with age, we have rejected this reasoning as a basis for a sentencing departure for certain classes of criminals, namely sex offenders. See United States v. Irey, 612 F.3d 1160, 1213–14 (11th Cir. 2010) (en banc), cert. denied, .131 S. Ct. 1813 (2011). We also reject this reasoning here. “[T]errorists[,] [even those] with no prior criminal behavior[,] are unique among criminals in the likelihood of recidivism, the difficulty of rehabilitation, and the need for incapacitation.” United States v. Meskini, 319 F.3d 88, 92 (2d Cir. 2003). Padilla poses a heightened risk of future dangerousness due to his al-Qaeda training. He is far more sophisticated than an individual convicted of an ordinary street crime. [my emphasis]

Aside from all the evidence that, throughout his life, Padilla is profoundly unsophisticated, the majority gloms Irey onto Meskini with no evidence specific to Padilla to argue he’s so sophisticated he’ll always be a heightened risk. Terrorists are like sex offenders because they are.

Barkett was having none of this.

While the majority recognizes that a trial judge may find that recidivism generally decreases with age,12 it not only rejects that presumption for Padilla, but goes one step further and decides that trial judges may no longer consider, for anyone convicted of a terrorism-related offense, the likelihood that the risk of recidivism will decrease with age. The majority does so, even in the absence of any evidence supporting that conclusion, and even though the government does not challenge on appeal as clearly erroneous the trial judge’s fact-finding that Padilla would be unlikely to engage in new criminal activity when released from prison.13

13 The government makes only a passing and conclusory reference to recidivism on the last page of its brief without specifically addressing the sentencing court’s fact-finding. The totality of the government’s argument regarding recidivism is the following: “[The risk of recidivism upon release is very real. That risk is greater because Padilla has literally learned to kill like a terrorist.” Even if this brief statement is construed as a challenge to the trial judge’s fact-finding that Padilla is not likely to commit future crimes when released from prison in his mid-fifties, the government’s argument fails to explain why Padilla should be presumed dangerous after serving a seventeen and one-half years’ sentence and remaining subject to an additional twenty years of supervised release. [underline emphasis original, my bolding, citation to footnote 12–a Sotomayor opinion on recidivism and age–removed]

She goes on to argue that Pryor misapplied Irey to this issue, partly because that was just advisory discussion, but also because that decision had at least pointed to actual evidence to make its argument about recidivism. And she then notes that Meskini–the only precedent cited for the claim that terrorists are a greater risk–upholds trial judge discretion, precisely what the majority opinion overrules in this case.

Padilla’s lawyers plan to appeal this decision, if not to the full 11th, then to SCOTUS. And while they’re doing that, of course, his two Bivens suits against Rummy and John Yoo will be wending their way through the courts as well.  And of those three legal proceedings, it seems only the Ninth Circuit believes the government owes a citizen anything for having tortured him.

In addition to green-lighting debt collection calls to cell phones, another of the deficit plans Obama rolled out today is basically claiming credit for military withdrawals.

The plan also realizes more than $1 trillion in savings over the next 10 years from our drawdowns in Afghanistan and Iraq.

As DDay notes, these “cuts” are scheduled to happen anyway. It’s just funny accounting, particularly since the foreverwar hawks will fight some of these changes in any case.

But there’s another reason I think this is funny accounting. We’re not withdrawing, we’re switching to “civilian-led” efforts in these places. And Obama is not measuring the costs of these civilian-led efforts.

Such as the $100 million expansion we’re making to habeas-free Parwan prison in Afghanistan.

The U.S. Army Corps of Engineer (USACE) Middle East District intends to solicit names of construction firms or joint ventures experienced in working in the Middle East region who are interested in submitting a firm-fixed price offer for this project. To be considered a construction firm, the firm must perform construction as a significant portion of its business. This announcement is for the construction of Detention Facility in Parwan (DFIP), Bagram, Afghanistan. The contractor shall comply with all base security requirements. Defense Base Act Insurance and Construction surety will be required. The estimated cost of the project is between $25,000,000 to $100,000,000.

PROJECT SCOPE: The scope of the Project includes construct detainee housing capability for approximately 2000 detainees. [my emphasis]

Glenn Greenwald hits much of what needs to be said about this expansion:

Budgetary madness to the side, this is going to be yet another addition to what Human Rights First recently documented is the oppressive, due-process-free prison regime the U.S. continues to maintain around the world:

Ten years after the September 11 attacks, few Americans realize that the United States is still imprisoning more than 2800 men outside the United States without charge or trial. Sprawling U.S. military prisons have become part of the post-9/11 landscape, and the concept of “indefinite detention” — previously foreign to our system of government — has meant that such prisons, and their captives, could remain a legacy of the 9/11 attacks and the “war on terror” for the indefinite future. . . . .

The secrecy surrounding the U.S. prison in Afghanistan makes it impossible for the public to judge whether those imprisoned there deserve to be there. What’s more, because much of the military’s evidence against them is classified, the detainees themselves have no right to see it. So although detainees at Bagram are now entitled to hearings at the prison every six months, they’re often not allowed to confront the evidence against them. As a result, they have no real opportunity to contest it.

In one of the first moves signalling just how closely the Obama administration intended to track its predecessor in these areas, it won the right to hold Bagram prisoners without any habeas corpus rights, successfully arguing that the Supreme Court’s Boumediene decision — which candidate Obama cheered because it guaranteed habeas rights to Guantanamo detainees — was inapplicable to Bagram.  Numerous groups doing field work in Afghanistan have documented that the maintenance of these prisons is a leading recruitment tool for the Taliban and a prime source of anti-American hatred.  Despite that fact — or, more accurately (as usual), because of it — the U.S. is now going to build a brand new, enormous prison there.

And then there’s the expansion we’re doing to the “Embassy” in Baghdad. Dan Froomkin lays this out.

U.S. diplomats, military advisers and other officials are planning to fall back to the gargantuan embassy in Baghdad — a heavily fortified, self-contained compound the size of Vatican City.

The embassy compound is by far the largest the world has ever seen, at one and a half square miles, big enough for 94 football fields. It cost three quarters of a billion dollars to build (coming in about $150 million over budget). Inside its high walls, guard towers and machine-gun emplacements lie not just the embassy itself, but more than 20 other buildings, including residential quarters, a gym and swimming pool, commercial facilities, a power station and a water-treatment plant.

[snip]

The number of personnel under the authority of the U.S. ambassador to Iraq will swell from 8,000 to about 16,000 as the troop presence is drawn down, a State Department official told The Huffington Post. “About 10 percent would be core programmatic staff, 10 percent management and aviation, 30 percent life support contractors — and 50 percent security,” he said.

[snip]

As the Department of Defense pulls out and its spending drops, the State Department is expecting its costs to skyrocket. State asked Congress for $2.7 billion for its Iraqi operations in fiscal year 2011, and got $2.1 billion. It wants $6.2 billion for next year. The Senate Foreign Relations Committee estimates that State’s plans will cost $25 to $30 billion over the next five years.

I use scarequotes for the word “Embassy” because I think it’s time we set aside the fiction that this is a State Department operation. Froomkin notes, for example, that the $6 billion a year State will be spending on this “Embassy” adds to the only $14 billion State spends, in total, right now.

It’s not just the actual spending I’m objecting to–the $100 million here, the $30 billion there–though Glenn’s point, that we refuse to spend a fraction of $100 million to fix CA’s prison overcrowding, is an important one.

It’s that in one of our colonies we’re doubling the size of our replacement Gitmo, right there in plain view of the people it will antagonize (though the expansion does raise questions about whether we’ll fill the prison with detainees from other countries, too).

And in another of our colonies we’re expanding our giant concrete intelligence bunker (I am open to suggestions for better names for this monstrosity), replete with numbers equal to the numbers of troops Nuri al-Maliki can’t publicly approve. Will the fact that intelligence and contractor personnel are watching over our colony be any less incendiary to the Moqtada al-Sadrs of Iraq than men and women we explicitly called troops? Isn’t this stupid fiction–with the legal fiction it exploits–be in a number of ways worse?

Call it a crazy suspicion. But our non-withdrawal withdrawals from our colonies seems ripe for blowback in a very very big (and expensive) way.

Of course that’s precisely the kind of cost even the deficit hawks refuse to count, so we’ll never see it accounted for in any budget.

A number of people are talking about the spectacle of Representative John Fleming complaining about tax cuts on the wealthy him, suggesting that it will lead him to cut jobs. [my transcription]

Chris Jansing: With all due respect, Congressman, the WSJ estimated that your businesses, which I believe are a [sic] Subway sandwich shops and UPS stores–very successful–brought you last year over $6 million dollars.

Fleming: Yeah, that’s before you pay 500 employees, you pay rent, you pay equipment, and food. Ah, the actual net income of that was only a mere fraction of that amount.

Jansing: So you’re saying that if you have to pay more in taxes, you would have to get rid of some of those employees? These are not as successful businesses–

Fleming: I would say that since my net income–and again, that’s the individual rate that I told you about–the amount that I have to reinvest in my business and feed my family is more like $600,000 of that $6.3 million. And so by the time I feed my family, I have only $400,000 left over to invest in new locations, upgrade my locations, buy more equipment.

Now, aside from the point that Laura Clawson makes–which is that even if most of his costs are wages, then he’s only paying each of those claimed 500 employees $11,400 a year, and aside from the point that Sam Seder makes–which is that this $600,000 is on top of the $174,000 he makes as a Member of Congress (which of course also means he doesn’t have to pay for his own health care), Fleming is blowing smoke about how business owners are taxed.

They’re taxed after all business investments are deducted, not before.

That is, assuming Fleming isn’t paying himself a wage (it doesn’t sound that way given the way he mixes his reinvestment and “feed the family” amounts), then what happens is he reinvests $400,000 of his net profits, and then takes what is left over, $200,000, which is what he’d be taxed on. Say he paid an effective tax rate of 32% on that, so $64,000.

Under Obama’s plan, Fleming would:

• Pay the tax rate he would have paid in 2001–effectively about 35%
• Lose some deductions (only because of his Congressional salary though–without it, what he claims is his take home pay would not be high enough to hit the $250,000 income level at which those deductions are removed)

So say he paid 35% (he also might lose what I presume is a deduction for a second home in DC). That would mean he’d pay taxes of $70,000.

His poor family! Having to eat off of just 2.6 times the median pre-tax income of $49,445 in this country (not counting the Congressional salary, of course).

Lucky for Fleming, there is a way he can keep paying the same amount in taxes. If he reinvested $417,142 rather than $400,000 in his business, then he’d still pay the same $64,000. Sure, his family would really suffer, living off of just 2.4X the median pre-tax income (still ignoring the Congressional salary). [Update: As Mary points out, I’ve oversimplified this–100% of the investments aren’t deductible in the first year.]

But since he seems to be making a 10% return on his business, that’s not actually a bad idea–it’s as good an investment as you’re going to find in this day and age.

And the best part? Given the shitty wages he apparently pays his employees, the extra $17,142 he invests back in his businesses would more than … create a job!

As part of the President’s deficit reduction plan, he proposes changing the rules to allow debt collectors to call people on their cell phones.

Allow agencies to contact delinquent debtors via their cellular phones. The Administration also proposes to amend the Communications Act of 1934 to facilitate collection of debts owed to or guaranteed by the Federal Government, by facilitating contact of delinquent debtors who are most readily reached on their cell phones. This provision is expected to provide substantial increases in collections, particularly as an increasing share of households no longer have landlines and rely instead on cell phones.

As soon as I read this, I thought of the widow in Hawaii whom Bank of America called 48 times a day because her late husband had missed one mortgage payment.

Deborah Crabtree, of Honolulu, Hawaii tragically lost her husband to cancer on Aug. 3. The bank to which he owed money, Bank of America, didn’t even wait for a day after his death to begin calling Crabtree to remind her that her husband had missed a $3,000 mortgage payment on their home.

Crabtree told Bank of America that she had $5,000 on hand, and that she needed this money to buy food and bury her husband. Convinced that Crabtree should be using this money to pay them, Bank of America repeatedly “robo-called” Crabtree during her husband’s wake, sometimes with only 15 minutes between each call.

Now, Crabtree is suing the bank, alleging that it called her up to 48 times a day, even repeatedly demanding evidence that her husband was dead, and once receiving it, losing it. Crabtree’s complaint cites the emotional distress and mental anguish caused by Bank of America’s behavior.

So under Obama’s proposed rules, BoA might call someone 48 times a day on their cell phone? Say each one were billed as a 1 minute call, that would amount to 1,440 minutes a month–maybe double a pretty normal 700 minute/month plan. The remainder of those minutes might be billed at $.45 per minute, or a grand total of $648 a month, all so a debt collector can get money for Uncle Sam.

Add in the fact that the most likely group to fall in this category–students with federally backed loans, particularly those who used those federally backed loans to go to diploma mill for-profit colleges–and you’ve effectively got the Federal government penalizing these young adults a second time because they were preyed upon by a previously under-regulated industry a first time. Not to mention graduating from school into the post-crash economy.

In short, while I understand the necessity of finding a way to collect debt from those who don’t have a land-line, I also see how this policy will become the Bankruptcy Bill of the housing crisis, a policy with easily foreseeable devastating consequences that will exacerbate the popping of the next bubble that will pop.

Over the weekend, the Atlanta Journal-Constitution’s GA politics section published an article claiming that Saxby Chambliss’ Gang of Six has become a Gang of 38.

Saxby Chambliss’ Gang of Six has grown to 38 U.S. senators from both parties, who on Thursday urged the debt reduction “supercommittee” to aim high and secure $4 trillion in budget savings.

The Georgia Republican was joined by Sen. Mark Warner, D-Va., and a group too large to fit on the news conference stage to send a message to the 12-member joint committee created in the summer’s deal to raise the debt ceiling.

It’s nice of Chambliss’ home paper to present this unquestioningly.

But your first tip-off that something’s wrong is the quote of their other home Senator, Johnny Isakson, talking about just pulling the trigger on deficit cuts, to know something’s not right here.

“Nobody needs to really look too far for what we need to do,” said Sen. Johnny Isakson, R-Ga. “They just need to be willing to pull the trigger.”

After all, one of the tax reforms the Catfood Commission and the Gang of Six pushed was to cut the mortgage deduction. And, as a former realtor, Isakson is the real estate industry’s biggest friend in Congress. I’m guessing it would take a great deal to get Isakson to vote for cuts to the deduction.

Mind you, Chambliss did get 17 Democrats plus Lieberman and 18 Republicans to sign to … something. That something is an agreement in principle.

As a bipartisan group of Senators, we will encourage and support the Super Committee in fulfilling its mission. We are here to support a deficit reduction package consistent with the following principles that should:

• Include enough deficit reduction to stabilize the debt as a share of the economy, and put the debt on a downward path, and provide fiscal certainty. We believe a reasonable target is at least $4 trillion, including previously enacted deficit measures. This will send the right message to the financial markets.

• Use the established, bipartisan debt and deficit reduction frameworks as a starting point for discussions.

• Focus on the major parts of the budget and include long-term entitlement reforms and pro-growth tax reform.

• Be structured to grow the economy in the short, medium and long-term.

• Work to include the American public and the business community in a broader discussion about the breadth of the issues, challenges and opportunities facing us. [my emphasis]

It does point to “existing frameworks,” aka, the Catfood Commission/Gang of Six. But using that as a “starting point” for discussions does not equate to an agreement from 36 Senators to cut the home mortgage deduction. Nor does it reflect broad support for further DOD cuts, which was also in the Catfood recommendations.

Nevertheless, if you happen to be a constituent of the following Democratic Senators, you might want to ask them why they are aiming to cut our social safety net:

• Begich
• Bennet
• Carper
• Conrad
• Coons
• Hagan
• Klobuchar
• Landrieu
• McCaskill
• Manchin
• Nelson
• Pryor
• Shaheed
• Tester
• Mark Udall
• Warner
• Wyden

Interestingly, Klobuchar seems to have been added at a late minute. Also note that Dick Durbin is not on this list, even while he voted for the Catfood recommendations.

In Friday’s post, I noted in passing the recent revelation that only about 50% of night raids had accurate targeting.  A new report (pdf) released today by the Open Society Foundations and The Liaison Office informs us that targeting for night raids in Afghanistan is now about 80% accurate, but because the rate of raids has increased more than five-fold, the number of innocent civilians detained in the night raids continues to go up.  As one might expect, the backlash from these improper detentions is significant and likely contributes to the increased rate of insurgent attacks.

The press release announcing the report provides a broad picture of the findings:

Ten years after the invasion of Afghanistan, security is at its worst level since the fall of the Taliban. U.S. and NATO forces argue that night raids are their best tool against insurgents, but a new report by the Open Society Foundations and The Liaison Office finds that the cost of the raids outweighs the benefits.

/snip/

An estimated 12 to 20 night raids now occur per night, resulting in thousands of detentions per year, many of whom are non-combatants. Mass detention operations, holding entire villages for questioning on site for prolonged periods of time, may violate international prohibitions against indiscriminate detention, the report found.

Civilians feel caught between the warring parties, and often blame international forces. As one man from Nangarhar, interviewed in the report said, “They claim to be against terrorists, but what they are doing is terrorism. It spreads terror. It creates more violence.” Weak accountability mechanisms where civilian casualties and mistaken detention occur and a failure to explore alternatives to night raids further increase anger over the raids.

Moving to the report itself, we find in the Executive Summary that the estimate of 20 raids per night applies to the period of December 2010 to February 2011.  The rate likely has continued to increase, as they received one report that there may have been as many as 40 raids per night in April 2011.

In perhaps the most telling sentence of all in the report, we learn that no evidence has been presented justifying the reliance on night raids: “International military officials argue that the increase in night raids has been their most successful strategy in the last year, although they have offered no evidence to support these claims.”

Furthermore, despite the improvements in accuracy, as the rate of night raids has increased, the criteria under which Afghans are detained have been loosened:

However, many of these improvements have been undermined or overshadowed by the surge in night raids. Although intelligence improvements have reduced mistaken night raids on civilian homes, the increased number and scope of night raids put many more civilians at risk than past intelligence flaws ever did. Many more activities may lead individuals to be detained in night raids, including the provision of food or shelter (under duress or not). In many cases, non-combatants appear to be subjected to night raids due to their proximity to insurgent activities, or incidental information about insurgent groups, rather than due to their actual conduct or status. As a result, far more non-combatants are detained in a year. Though the majority of non-combatants are soon released, the experience may result in lasting physical, financial, and emotional harm. International military typically release individuals by first handing them over to Afghan custody, where they can suffer poor conditions or even abuse rising to the level of torture.

And note that last sentence in the quoted passage: wrongly detained civilians are released to Afghan custody where they can be subjected to torture.  That seems like a recipe for ensuring a healthy insurgency: detain innocent civilians under false pretenses and then subject them to torture before they are released to return home.

Finally, the report goes into significant detail on the international law implications of practices where large numbers of civilians who are not Direct Participants in Hostilities (DPH) are detained:

In addition to the above DPH concerns, large-scale detention or clearing operations raise further concerns about arbitrary detention. Individuals may be detained incidentally as part of a broader operation, often as a matter of military necessity. But operations that deliberately target and round up civilians not themselves suspected of DPH or being security threats, but only in order to subject them to interrogation and screening may constitute an arbitrary deprivation of liberty and constitute inhumane treatment in violation of Common Article 3 to the four Geneva Conventions.

Under international law, detentions must be made on an individualized basis and may not be imposed as collective punishment or based on arbitrary or discriminatory grounds. Detaining civilians simply because they live in a particular area or are of a certain age, gender, nationality, or ethnicity may be arbitrary or even discriminatory detention in violation of Common Article 3, which expressly requires humane treatment of civilians without any “adverse distinction” including difference of treatment based on race, religion, birth, or other similar criteria.

So, despite the fact that security in Afghanistan is at its worst level ever, foreign forces in Afghanistan continue to insist that night raids are their best tool for achieving security.  They provide no justification for this claim even when significant data exist to suggest the raids themselves provide significant enthusiasm for the insurgency.  The US has invested trillions of dollars, thousands of lives and ten years in this effort that is no closer to success today than on the day we invaded Afghanistan.

[youtube]ywIqvCojtsQ[/youtube]

According to Dick Cheney, our objective in Afghanistan was, from the very beginning, not about defeating al Qaeda, but rather, defeating the Taliban, while denying al Qaeda a safe haven in Afghanistan.

At least that’s what he says in a passage explaining why he was talking about Iraq in the days after 9/11. He says,

Although we had discussed Iraq earlier in the day [on September 14], I also took time now to say that Afghanistan, where the 9/11 terrorists had trained and plotted, should be first. I believed it was important to deal with the threat Iraq posed, but not until we had an effective plan for taking down the Taliban and denying al Qaeda safe haven in Afghanistan. (334)

Note what he describes the goal as being: “taking down the Taliban,” not “taking out al Qaeda.” The al Qaeda-related goal Cheney describes for Afghanistan is simply denying them a safe haven.

And thus–in the context of this discussion about why the Bush Administration focused on Iraq so quickly after 9/11, at least–he excuses himself for letting Osama bin Laden escape at Tora Bora, for letting OBL find a haven in Pakistan that would keep him safe for a decade, and for drawing troops away for use in Iraq before actually beating al Qaeda. It was all in the plan, according to Cheney.

Tellingly, his sole discussion of anything relating to Tora Bora (actually, a strategy discussion that happened a month before the December 2001 battle there) doesn’t call it Tora Bora, doesn’t mention that OBL was holed up there (even though Cheney all-but acknowledged we knew he was at the time), and didn’t admit Bush Administration blunders let OBL get away.

[General Tommy] Franks also reported on the campaign under way to destroy the massive cave complexes in which the Taliban lived and hid. He had about 150 caves on a target list, he said, and estimated the count would go to 1,000. (345)

Cheney separates the discussion of bombing caves in Afghanistan from that describing General Franks making plans for Iraq by 24 pages, obscuring the fact that Franks was focused on developing an Iraq plan at the time he refused to send in American troops to trap OBL in Tora Bora.

Admittedly, Cheney does remember to include taking out al Qaeda among the objectives a few pages after his initial description of US goals in Afghanistan.

Our objective was to take out al Qaeda, take down the Taliban, and prevent Afghanistan from being used as a base for further operations. (340)

But it feels so contrived, particularly coming just before this passage insisting that the government remained focused on OBL.

We were also very focused on getting Osama bin Laden. None of us believed that capturing or killing him would end the terrorist threat, but he was the leader of the organization that had launched the 9/11 attacks, and having him in custody–or dead–would be a powerful symbol of our determination. Tracking him down was certainly one of our top priorities. I was gratified that after years of diligent and dedicated work, our nation’s intelligence community and our special operations forces were able on May 1, 2011, to find and kill bin Laden. (341)

If you’re so petty you can’t even mention President Obama’s name in the list of those who managed to finally get OBL, clearly you have either some insecurity that Obama succeeded where you failed, or that first formulation–basically, a whack-a-mole forever war that “denies safe haven” for terrorists in one after another country, Afghanistan, Iraq, Pakistan, Yemen, Somalia, but never ends the war–was always the plan.

Marcy is correct, the article this week in the Atlantic magazine by Taylor Branch is an absolute must read. Entitled The Shame of College Sports, the article opens with a 2001 investigatory hearing in front of the Knight commission, a NCAA oversight board where slimy promoter Sonny Vaccaro matter of factly tells the Commission exactly what is going on in their sport; the Commission is incredulous, in denial and clearly thinks Vaccaro is scum. The reverse is, of course, the truth.

The list of scandals goes on. With each revelation, there is much wringing of hands. Critics scold schools for breaking faith with their educational mission, and for failing to enforce the sanctity of “amateurism.” Sportswriters denounce the NCAA for both tyranny and impotence in its quest to “clean up” college sports. Observers on all sides express jumbled emotions about youth and innocence, venting against professional mores or greedy amateurs.

For all the outrage, the real scandal is not that students are getting illegally paid or recruited, it’s that two of the noble principles on which the NCAA justifies its existence—“amateurism” and the “student-athlete”—are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes. The tragedy at the heart of college sports is not that some college athletes are getting paid, but that more of them are not.

It is a long article that stretches in time from the beginning of college football in the late 1800s through the Cam Newton sham “investigation and disposition” prior to last season’s BCS Championship game. Coming on the heels of the stunning article on the corruption surrounding the Miami Hurricanes football program, it is a pretty stark reminder of just how filthy big time college athletics really are.

Many people have taken to advocating that college athletes be paid – above and beyond their scholarship terms – for their “services”. College basketball analyst Jay Bilas rants about doing so near daily in his Twitter stream. Personally, I am not sure that is the solution either. Do athletes at USC and Notre Dame get paid more because their brands bring in more? How much do each athlete get paid? Does Andrew Luck get paid a lot more than his left tackle? What about the universities not in say the top 64 programs, whose programs may not even be profitable, what do they do? What about basketball, baseball and track athletes? What about the girls and Title IX? I don’t know what the answer is, but I don’t like this one.

Interestingly enough, two of the most notoriously dirty major programs square off today when the Ohio State Felons take on the Miami Hurriconvicts in Miami. Nearly ten years ago, these two teams played for the National Championship (which Ohio State, true to their criminal form, stole from the Hurricanes on a horrid no-call on interference in the end zone in the last seconds). Now it is just another game. If only they could both lose.

To try to find a ray of clean and hope in this sick muck, let’s talk about teams that still play for the love of the game and the sport. Or so I am told. That’s right, I’m talking Ephs and Jeffs! The Williams Ephs open their 2011 season today at the always tough Bowdoin at Whiitier Field. While bitter arch rival, the Amherst Jeffs, open their season on the road against the fierce Bates Bobcats. Man, the stories we could tell about these games. Hopefully Marcy, Neil and/or Adam Bonin will come along and tell those stories cause, well you know, the ASU Sun Devils didn’t ever play those guys, I got nuthin!

In other games of note, Boise State already just tore up Toledo last night, and don’t be fooled, Toledo is a pretty good team. The BCS needs to get their heads out of their asses and give Boise some love. And Kellen Moore is simply amazing. The one truly huge game this weekend is Oklahoma down in Seminole land to take on Florida State. Oklahoma is, as befitting the number one ranked team, the favorite; but I dunno, I think FSU may be a sleeper here and, if their QB picks up where Christian Ponder left off, will win. I am agains personally interested in seeing Arizona State, who travel to Illinois. Been quite a while since ASU has been able to withstand prosperity, so being ranked at number 22 is a little scary. If Brock Osweiler has another big game, they should be okay, but the running game is not that good right now.

As to the pros, well the Deetroit Lions are the story of the year! The Kitties get KC, who got their asses kicked last week, at home in Ford Stadium. Look for Deetroit to go 2-0! Bears and Saint and Pats versus Bolts are the only other real excitement this week. I am going to let Marcy and Randiego battle that preview out in comments.

SPECIAL UPDATE!! – Uh, it turns out we gots some restless natives in these here parts, and they been demanding extra coverage. In another CRITICAL game, likely rivaled in scope only by the epic Cowboys/49ers tilt, Colt McCoy and the Cleveland Brownies are on the road at the Colts, and the Brownies are road favorites by 3. Wow. I must say, however, the fate of this game lies with Peyton. Peyton Hillis that is;the other one ain’t walking through that door. Oh, and speaking of Deetroit, Rosalind is right, the Tigers clinched their division yesterday. Congratulations, you gotta love Jim Leyland and Justin Verlander, who may yet be the first 25 game winner in MLB in decades (since Bob Welch).

As I’ve noted a couple of times, there’s the suggestion that the CIA likes the NYPD’s CIA-on-the-Hudson because the NYPD, unlike the CIA, is diverse enough to have people with the linguistic and cultural background to infiltrate Muslim communities.

So how stupid is this?

Three weeks ago, The Arab American News published a story written by The Associated Press about the CIA and the NYPD cooperating in a massive spying operation on the entire Muslim community in the New York/New Jersey area.

The following week, we published an article detailing the CIA’s denial of that activity.

As we went to press last week, Thursday, September 8, 2011, we received an email from the advertising agency which handles the CIA’s account. “The government agency for the CIA has just contacted us and wants us to remove the banners from your website for undisclosed reasons,” the agency said in its email. A representative from the advertising agency haunted our advertising director all afternoon, repeatedly asking to immediately remove the four ads that the agency just orderedeight days ago. Another email three hours later from the same agency: “Sorry to keep bothering you but the client is giving me a headache.” The CIA has canceled all advertising in The Arab American News.

Not only was this outlet a place the CIA advertised to the Arab community (presumably including recruitment ads), but the paper, as it describes, served as an entree into the community.

This newspaper was instrumental in inviting the CIA into the community, introducing its employees to community leaders and helping to forge good relations between the force and local organizations. The CIA has sponsored many events in the community and generally been welcomed with open arms.

So now the newspaper is drawing one of the most obvious conclusions: that the CIA hates us–rather, a newspaper serving the Arab American community–for our freedoms.

But the evidence shows that perhaps that was a mistake. We treated the CIA like an American institution that believes in American values, like freedom of speech, freedom of worship and the freedom to peaceably assemble. At least in America.

However, if displeasure with one story the newspaper publishes causes a government agency to pull all its ads in retribution, then we assume everyone should be afraid of the CIA — and maybe the whole government — because it’s obviously “my way or the highway” with them. For us they can pull advertising and satisfy their thirst for revenge.

There is, though, one other (not mutually exclusive) possibility. Presumably the CIA wants Arab-Americans it recruits to imagine that they will be targeting actual terrorists if they go to work for the CIA. But the AP series shows that, in the CIA-assisted NYPD program, Arab-Americans will be spying on the innocent activities of their own community. Arab-Americans who read the AP series in this newspaper, then, might be less pliable recruits for the CIA.

So, instead, they’ll just have to rely even more on the NYPD to infiltrate these communities, I guess, having pissed off key figures in the community it needs to reach out to to do its job.