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McKeon Too Low For Zero Option

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Late Saturday, the New York Times posted an article with the misleading headline “US Considers Faster Pullout in Afghanistan”. In a classic case of burying the lede, the article contained the important news that negotiations between Barack Obama and Hamid Karzai are going so badly that Obama is considering a total withdrawal from Afghanistan at the end of 2014, rather than signing an agreement outlining conditions under which a residual US force would remain in the country:

Increasingly frustrated by his dealings with President Hamid Karzai, President Obama is giving serious consideration to speeding up the withdrawal of United States forces from Afghanistan and to a “zero option” that would leave no American troops there after next year, according to American and European officials.

It appears that the latest attempt at a video conference went so badly that the zero option is now under serious consideration:

A videoconference between Mr. Obama and Mr. Karzai designed to defuse the tensions ended badly, according to both American and Afghan officials with knowledge of it. Mr. Karzai, according to those sources, accused the United States of trying to negotiate a separate peace with both the Taliban and their backers in Pakistan, leaving Afghanistan’s fragile government exposed to its enemies.

Mr. Karzai had made similar accusations in the past. But those comments were delivered to Afghans — not to Mr. Obama, who responded by pointing out the American lives that have been lost propping up Mr. Karzai’s government, the officials said.

The option of leaving no troops in Afghanistan after 2014 was gaining momentum before the June 27 video conference, according to the officials. But since then, the idea of a complete military exit similar to the American military pullout from Iraq has gone from being considered the worst-case scenario — and a useful negotiating tool with Mr. Karzai — to an alternative under serious consideration in Washington and Kabul.

For the record, it should be noted that I have maintained since negotiations began last November that Afghanistan will never grant the criminal immunity the US insists on for soldiers remaining in the country and that the US will bumble into the same zero option in Afghanistan that it reached in Iraq.

It would appear that the Taliban also agree that things are going very badly on the negotiation front. From CBS News yesterday morning:

A diplomat and Taliban official say the Afghan Taliban are closing their Qatar office at least temporarily to protest demands they remove a sign that identified the movement as the Islamic Emirate of Afghanistan.

The office was opened less than a month ago to facilitate peace talks, and has also come under pressure for using the same white flag flown during the Taliban’s five-year rule of Afghanistan that ended with the U.S.-led invasion in 2001.

Clearly, if the US winds up with zero residual forces, there would be no reason for the Taliban to negotiate with the US (or Karzai).

ToloNews has this report on yesterday’s press briefing by White House spokesman Jay Carney (the transcript was not yet posted when I wrote this post):

Jay Carney, the White House Press Secretary, said on Tuesday that a decision on the exact pace and numbers of the U.S. troop withdraw from Afghanistan is not “imminent.” However, he said that a “zero option” for the U.S. troop presence post-2014 is still on the table.

The idea that the US could finally completely end its misadventure in Afghanistan should appeal to most rational people who are concerned about the loss of soldiers on both sides of the conflict, the huge losses of civilians who have been killed in the conflict and the massive drain on the US treasury.

Sadly, Buck McKeon, who chairs the House Armed Services Committee, is both one of the most corrupt members of Congress (even getting national defense contractors to contribute for the first time ever to a state legislature race when his wife was running) and not rational when it comes to concern for life and tax dollars. Sensing that his corporate masters in the defense contracting business stand to lose money under a zero option, McKeon rushed to their rescue. From an article in The Hill, yesterday evening: Read more →

The Machine Approving the Failing Flying Robots

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As I noted earlier this week, drones have proven to be very expensive failures in the last few weeks.Yesterday, Danger Room described yet another example, the Army’s Gray Eagle (and since I obsess about these things, note the failed chip).

Beginning in March 2011, “poor reliability across all major subsystems” led to delays [in the Gray Eagle program] that would seemingly never end, according to a report from Edward Greer, the deputy assistant secretary of defense for developmental test and evaluation. During the same month, a Gray Eagle drone crashed in California after a faulty chip blocked a subsystem from sending commands to “a portion of the aircraft’s flight control surfaces,” Col. Timothy Baxter, the Army’s project manager for unmanned aircraft systems, elaborated in an e-mail to Inside Defense.

“Flight testing was suspended,” Greer’s report added. The faulty chip was replaced and testing resumed, but the Army was now left with fewer available flight hours. The drone’s mean times between failures — or the average time the drone or a component works without failure — is also short. First, the drone itself has an average failure every 25 hours, short of a required minimum of 100 hours. The drone’s ground control station has a rate of 27 hours before a failure, short of a required 300. The Army has since lowered the requirement to 150 hours. The Gray Eagle’s sensors fare a bit better: 134 hours to 250 hours required.

Then the Gray Eagle was delayed again last October. The report concludes that for the 2011 fiscal year, the Gray Eagle is meeting only four of seven “key performance parameters,” and the drone’s “system reliability continues to fall short of predicted growth,” which could be a problem for the upcoming tests scheduled for August.

In spite of these failures, the government is pushing to accelerate our embrace of drones.

Here’s why.

In the Center for Investigative Reporting’s coverage of the DHS report I examined earlier in the week (which includes a number of additional examples where drones failed to perform as promised), they quote co-Chair of the Drone caucus and Homeland Security Committee member, Henry Cuellar, simply assuming “they” had a strategic plan.

Rep. Henry Cuellar, D-Texas, who has championed drones as the Democratic co-chairman of the Congressional Unmanned Systems Caucus, said that Customs and Border Protection has to go back to the basics and come up with a sound strategic plan for its drones.

“The first thing any agency should have is a strategic plan. I assumed they had a plan,” said Cuellar. “We have to know where we are going before we start buying any more of the assets.”

Among Cuellar’s top donors are Global Atomics, the maker of the Predators CBP can’t use effectively as well as the Gray Eagle that keeps failing, as well as Boeing and Honeywell, which also sell UAVs.

Meanwhile, Republic Report points to an even more troubling example of failed oversight: the almost $500,000 a Northrop Grumman lobbyist was advanced to spend some time in Congress overseeing–among other things–the historically wasteful F-35 program and Northrup Grumman’s Global Hawk drone (the one that crashed earlier this week).

In 2011, after Republicans seized the House of Representatives in a landslide victory, the House Armed Services Committee, which oversees the military, gained a new chairman, Representative Buck McKeon (R-CA). As with most leadership changes, McKeon and his committee hired new professional staff. Thomas MacKenzie, a vice president at Northrop Grumman, was tapped to work for the committee beginning in March of 2011.

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We Request to Inform You that You Inform Us We Killed Another Drone Target

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I want to follow-up on Jim’s latest drone post–and go back to Greg Miller’s article on drones–to look at the the approval process. A lot of readers of Miller’s article noted this passage, revealing that JSOC continues to avoid the kind of (minimal) oversight that CIA gets.

There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

But read the whole passage in context.

Within 24 hours of every CIA drone strike, a classified fax machine lights up in the secure spaces of the Senate Intelligence Committee, spitting out a report on the location, target and result.

The outdated procedure reflects the agency’s effort to comply with Title 50 requirements that Congress be provided with timely, written notification of covert action overseas. There is no comparable requirement in Title 10, and the Senate Armed Services Committee can go days before learning the details of JSOC strikes.

Neither panel is in position to compare the CIA and JSOC kill lists or even arrive at a comprehensive understanding of the rules by which each is assembled.

The senior administration official said the gap is inadvertent. “It’s certainly not something where the goal is to evade oversight,” the official said. A senior Senate aide involved in reviewing military drone strikes said that the blind spot reflects a failure by Congress to adapt but that “we will eventually catch up.”

The disclosure of these operations is generally limited to relevant committees in the House and Senate and sometimes only to their leaders. Those briefed must abide by restrictions that prevent them from discussing what they have learned with those who lack the requisite security clearances. The vast majority of lawmakers receives scant information about the administration’s drone program.

In addition to the long-standing problem of JSOC avoiding oversight (and, implicitly, that this notice apparently comes after the fact, when CIA sends a fax over, which is a little late for the Intelligence Committees to weigh in, IMO), Miller lays out the following:

  • No one–not the intelligence committees or even the Gang of Four–gets enough insight into the drone programs to understand how JSOC’s practices differ from CIA’s (this is consistent with what the Gang of Four said about Anwar al-Awlaki’s killing, given that they said they never saw the kill lists)
  • As is typical, the intelligence committee overseers can’t share information from briefings with their colleagues not read into the program (this is how the Bush Administration gutted intelligence committee oversight of the torture and illegal wiretap programs)

But don’t worry, a senior Administration official says, this time, this secrecy is not designed specifically to avoid oversight.

Apparently, this SAO’s interlocutors don’t agree, because the WSJ’s Adam Entous and Siobhan Gorman have a similar story out today, just three days after Miller’s, quoting “current and former administration, military and congressional officials” complaining about oversight gaps.

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Eric Holder, Indefinitely Detained by DOD?

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The most shocking phrase in the Senate’s Defense Authorization detainee provisions to me was not the language affirming indefinite detention. That language simply affirms and possibly narrows the status quo. Rather, it was this language purporting to strike a “balance” between military and civilian detention for alleged terrorists by offering the Secretary of Defense the option of waiving military custody for terrorist detainees.

The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) [mandating military custody of terrorism detainees] if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

The presumption of military detention is bad enough. But to codify that the Defense Secretary would not even consult with DOJ on this front was shocking. After all, there is no reason any of these people–Defense Secretary, DNI, or Secretary of State–would know about a terrorist suspect captured in the US. They certainly wouldn’t know the investigation and prosecution strategies. Yet, the language passed last Thursday would not only allow the Defense Secretary to bypass DOJ as a default, but wouldn’t even require the Defense Secretary to ask whether it’s a good idea to move a suspect into DOD custody.

It effectively makes civilian prosecutors supplicants to the military bureaucracy to be allowed to do their work. And it’s particularly troubling given all the Bush-era instances in which FBI’s experts on al Qaeda were prevented from using that expertise to question detainees so Cheney’s torturers could torture them instead.

And the language in the Senate bill is actually more restrictive than the equivalent language in the House equivalent, which simply gives the Secretary of Defense input on civilian prosecution decisions.

SEC. 1042. REQUIREMENT FOR DEPARTMENT OF JUSTICE CONSULTATION REGARDING PROSECUTION OF TERRORISTS.

(a) IN GENERAL.—Before any officer or employee of the Department of Justice institutes any prosecution of an alien in a United States district court for a terrorist offense, the Attorney General, Deputy Attorney General, or Assistant Attorney General for the Criminal Division, shall consult with the Director of National Intelligence and the Secretary of Defense about—

(1) whether the prosecution should take place in a United States district court or before a military commission under chapter 47A of title 10, United States Code; and

(2) whether the individual should be transferred into military custody for purposes of intelligence interviews.

Whereas in May, crazy House Republicans wanted to give the Secretary of Defense veto power over civilian prosecutions, on Thursday the Senate voted to take the Attorney General out of discussions over whether civilian prosecutions are better than military detention altogether.

And yet, of all the Administration complaints about these provisions–John Brennan, David Petraeus, James Clapper, Leon Panetta–Robert Mueller is the only one who spoke from DOJ [Update: National Security Division head Lisa Monaco spoke at the ABA National Security conference]. Unless I missed it, Eric Holder didn’t issue a statement. And it was only after the bill passed the Senate that some anonymous DOJ official released a comprehensive explanation of why this is such a bad idea Read more →

It’s the Zenith-Limiting War Declaration, Not the Detainee Restrictions, Obama Wants to Veto

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A bit of a parlor game has broken out over whether Obama really means his veto threat over the detainee provisions of the Defense Authorization. Josh Gerstein weighed in here, including a quote from John McCain accusing the Administration of ratcheting up the stakes.

It’s also clear that, whether for political reasons or due to some complex internal dynamics, the administration seems at this point willing to put up more of a public fight over detainee-related strictures than it has in the past. However, whether that will ultimately translate to a willingness to blow up the defense bill with a veto is unclear. At least some lawmakers seem to view the threats as bluster, in light of the president’s track record.

As McCain said Thursday: “The administration ratcheted up the stakes…with a threat of a veto. I hope they are not serious about it. There is too much in this bill that is important to this Nation’s defense.”

The veto threat is probably tied to the new AUMF language

But I think Gerstein has the dynamic wrong–and his claim that this veto threat represents more public fight than he has shown in the past is flat out wrong. You see, Gerstein’s making the claim based on the assertion that the fight is over the Administration’s authority to move and try detainees as it sees necessary.

In the past three years, President Barack Obama’s administration has been in numerous public skirmishes with Congressional Republicans over legislation intended to limit Obama’s power to release Al Qaeda prisoners, move them to the U.S. and decide where they should face trial.

[snip]

A couple of thoughts on the dust-up: Obama has already signed legislation putting limits on releases of detainees. While officials said at the time that the White House would oppose similar proposals in the future, it is clear that as a practical matter those limits have now become the baseline for those in Congress. [my emphasis]

Gerstein’s right that Obama stopped short of vetoing the Defense Authorization last year, which had those limits, instead issuing a signing statement.

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

And Obama didn’t issue a veto threat on similar restrictions place on DHS funding.

But Obama has issued a veto threat on “detainee and related issues” before–on Buck McKeon’s version of the Defense Authorization in May. That version added a couple of things to last year’s Defense Authorization: More limits on when the government can use civilian courts to try terrorists, limits on the detainee review system beyond what Obama laid out in an Executive Order last year.

And this language:

Congress affirms that—

(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;

(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 15 1541 note);

(3) the current armed conflict includes nations, organization, and persons who—

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

The current bill is less harsh on several counts than McKeon’s language: it includes a series of waivers to bypass military detention and lets the Administration write procedures for determining who qualifies as a terrorist. While these loopholes require the Administration to do more paperwork, they still allow it to achieve the status quo if it does use those loopholes.

But it still includes very similar to McKeon’s defining this war.

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

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The UndieBomber’s 15 Minutes of Fame

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Here’s the entirety of the speech Umar Farouk Abdulmutallab gave after he plead guilty to the Christmas Day bombing.

10:32 a.m.

Abdulmutallab read from a statement saying he was guilty under U.S. law, but not under Islamic law, for the crimes charged. He said he tried to carry out the bombing in retaliation for the murder of innocent civilians in Iraq, Israel, Afghanistan, Somalia and elsewhere by the United States.

10:34 a.m.

He warned the U.S. that, if it continued to murder innocent Muslims, a calamity would befall the U.S.

If you laugh at us now, we will laugh at you later,” he said.

10:35 a.m.

He said committing jihad against the United States is one of “the most virtuous acts” a Muslim can perform.

The speech started no earlier than 10:23, it ended no later than 10:38. Quite literally, just 15 minutes or less for him to give the speech that is the primary reason people do not want terrorists tried in civilian courts.

The reason why we can’t have nice things like civilian law anymore (aside from all the torture-produced evidence we’re trying to hide) is because we might find out:

  • A Muslim man believes in Sharia law, not American law
  • A Muslim man correctly believes we have killed innocent civilians in Iraq, Israel, Afghanistan, Somalia, and other countries
  • Someone thinks the US might one day pay for its attacks on innocent Muslims
  • A radicalized Muslim man believes Allah will reward Jihad

That’s it. That’s what has people like Peter King and Buck McKeon and Lindsey Graham so scared that we have to rewrite our Constitution to give military law precedence over civilian law. They want to trade the legitimacy of today’s proceeding for largely secret proceedings where American citizens will be shielded from a failed terrorist’s 15 minutes of fame.

While we’re talking about how pathetic these fearful men are, I believe it’s safe to let you in on a little detail. The entire time Abdulmutallab has been in custody, he has been in a low security prison just 20 miles away from Ann Arbor, not some Gulag far away from our shore. And as it turned out, that, too, turned out to be okay.

No Wonder the Administration Didn’t Want Buck McKeon’s New AUMF; Marty Lederman Already Gave Them One

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Glenn Greenwald has a typically provocative post on the news that Marty Lederman and David Barron wrote the authorization to kill Anwar al-Awlaki. He uses Dawn Johnsen’s comments on the way secret OLC memos create secret law that undermine democracy.

Obama’s original choice to head the OLC, Dawn Johnsen, repeatedly railed against this Bush practice of concealing OLC memos as “secret law,” writing that “the Bush Administration’s excessive reliance on ‘secret law’ threatens the effective functioning of American democracy” and “the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government.”  In her April, 2008 testimony before the Senate Judiciary Committee, she was nothing short of scathing on the practice of concealing OLC memos. [Glenn’s emphasis]

From there, he notes that Lederman and Barron used the same justification–the AUMF–that John Yoo used to justify the detention without due process of Jose Padilla.

So the AUMF allowed the President to designate Awlaki an “enemy combatant” without a shred of due process, and then to act against him using the powers of war, because we are at war with an entity for which Awlaki had become a combatant.

There are many problems with that reasoning, but one in particular that deserves attention now is this: that was exactly the theory repeatedly offered by the Bush DOJ for far less draconian acts than assassinating a U.S. citizen, and it was one that the very same Marty Lederman categorically rejected.  As I’ve noted many times, one of the most controversial Bush/Cheney acts was its claimed power to detain U.S. citizen Jose Padilla without charges or due process — not to kill him, but merely detain him — on the theory that the AUMF authorized the President to designate him as an “enemy combatant” and treat him accordingly. [Glenn’s emphasis]

I’m not sure I buy this comparison. There are times when the US might legally wage war against one of its citizens, but because of its own secrecy, the Administration has simply not made the case that that is true in this case.

One of the big problems with Lederman and Barron’s interpretation of the AUMF, though–one Glenn doesn’t treat closely but which perfectly exemplifies Johnsen’s point–is the extension of the AUMF to apply to AQAP, an entity that simply didn’t exist when the AUMF authorized war against groups that had launched 9/11.

Other assertions about Mr. Awlaki included that he was a leader of [AQAP], which had become a “cobelligerent” with Al Qaeda, and he was pushing it to focus on trying to attack the United States again. The lawyers were also told that capturing him alive among hostile armed allies might not be feasible if and when he were located.

Based on those premises, the Justice Department concluded that Mr. Awlaki was covered by the authorization to use military force against Al Qaeda that Congress enacted shortly after the terrorist attacks of Sept. 11, 2001 — meaning that he was a lawful target in the armed conflict unless some other legal prohibition trumped that authority.

One area where Lederman’s reported memo is particularly dangerous, IMO, is in the extension of the AUMF to groups clearly not included in the congressional authorization.

All the more so given events that have transpired since the memo was written in June 2010. One of the first things the new Chair of the House Armed Services Committee, Buck McKeon, did after last year’s election was to call for a new AUMF. Notably, he wanted to include Yemen (and AQAP) in the new AUMF. The Administration was disinterested in that new AUMF, stating they believed already had the authority to do what they need to.

They claim to have that authority, of course, because Marty Lederman said they have it.

No wonder they discouraged a new AUMF! An open debate over the new terms of the AUMF might interpret AQAP more restrictively than Lederman did in secret, which might have challenged the OLC memo authorizing the Awlaki killing (yeah, I know, the chances of that are almost nonexistent).

Furthermore, I wonder whether the Administration told Congress they had already effectively legally expanded the AUMF? McKeon counterpart Carl Levin’s call for the Administration to release the memo makes me wonder whether he has seen it, and if not whether he knows the Administration legally expanded the AUMF by secret fiat.

Which is why Glenn’s point that the Administration avoided not just Article III oversight, during the ACLU/CCR suit, on this killing, but also Congressional oversight is so important. I don’t support McKeon’s effort to write a new AUMF. But it is undeniable that Congress proposed changing the law in such a way that would have given the Awlaki killing more–though probably not adequate–sanction. Rather than embracing the opportunity by working with Congress to formally extend the war to Yemen and AQAP, the Administration instead operated with the secret self-sanction Lederman had already given it.

The Administration chose not to avail itself of the opportunity to explain in the context of an Article III court why it had the authority to kill Awlaki. So, too, it chose not to avail itself of the opportunity to negotiate with Congress to give the Awlaki killing more (though not adequate) legal sanction. Instead, it used its own secret law-making power to do what the other two branches of government could have done with transparency and legitimacy.

Update: Meanwhile, McKeon is holding the Defense Authorization hostage to his bigotry.

Progressives Demand House GOP Committee Chairs Investigate Hunton & Williams

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When I first posted on Hank Johnson’s letter demanding an investigation into Hunton & Williams’ appropriation of counterterrorist techniques to attack citizen speech, I was a bit skeptical. Without a way to get some coverage of the demand, such a letter risks being yet one more angry letter into the void.

But I will say the letter is well-constructed.

That’s because it’s addressed to the Chairmen of the Oversight, Judiciary, Intelligence, and Armed Services Committees: Darrell Issa, Lamar Smith, Mike Rogers, and Buck McKeon. So in addition to someone, like Smith, who can address the legal issues involved–notably, why DOJ was recommending H&W to Bank of America–Johnson and others have included Rogers and McKeon, who presumably know a good deal about how DOD has funded campaigns like the one H&W was going to launch against citizens.

Which brings us to the DOD tie-in:

The techniques may have been developed at U.S. government expense to target terrorists and other security threats. The emails indicated that these defense contractors planned to mine social network sites for information on Chamber critics; planned to plant “false documents” and “fake insider personas” that would be used to discredit the groups; and discussed the use of malicious and intrusive software (“malware”) to steal private information from the groups and disrupt their internal electronic communications.

[snip]

It is deeply troubling to think that tactics developed for use against terrorists may have been unleashed against American citizens.

[snip]

Possible proof the defense and security contractors may have traded on their government work is inferred by a November 3, 2010, sales proposal from Team Themis to Hunton & Williams: “Who better to develop a corporate information reconnaissance capability than companies that have been market leaders within the [Defense Department] and Intelligence Community?

The focus, in other words, is not just on how such a campaign violates the law, but also how it represents the application of DOD-developed programs to private citizens exercising their First Amendment rights.

Sure, the GOP Chairs will ignore this.

But it’ll make them complicit in protecting the Chamber’s and H&W’s misappropriation of DOD technology.