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A Modest Proposal: Indefinitely Detain the Banksters

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Obama has declared that he has the authority under the 2001 AUMF to indefinitely hold anyone “if it is necessary to protect against a significant threat to the security of the United States.”

He doesn’t say that person has to be a terrorist, much less part of al Qaeda. He doesn’t say that person has to have any tie to the enemy as defined by the 2001 AUMF, that is, “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” He doesn’t even say that person has to have been rounded up on a battle field, however you define that.

If detaining someone indefinitely is “necessary to protect against a significant threat to the security of the United States,” Obama says, he can do it.

So I say, fine! Let’s indefinitely detain the banksters that crashed our entire economy. They fairly routinely hold the workers and taxpayers of this country hostage these days, just like terrorists do. And when you account for the number of people they’ve left homeless and hungry, the damage they have done may well surpass that of the attack on 9/11. Clearly, the banksters are a “significant threat to the security of the United States”–they’re the biggest threat to the security of the US. And the genius of Obama’s EO is it doesn’t even require the detainees, themselves, represent a threat. Rather, if their detention is necessitated by the security threat, we can detain them. We don’t have to trouble with sorting the good banksters, like Jamie Dimon, from the bad banksters, like Dick Fuld. We can detain them all, just to make sure we don’t accidentally miss any. (Sorry Bill, we can’t take any risks, so this includes you too!)

Simple as that. Our biggest security threat solved!

Mind you, Obama’s Executive Order laying out this amazing limitless standard specifies that the EO only applies to “those detainees held at Guantanamo on the date of this order.”

But we all know that EOs don’t have to say what they mean. We know OLC ruled back in 2001 that, “There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.” We know Bush did just that–change the terms of an EO without changing the text, so none of us had warning we were being spied on. But when national security is threatened–our government has decided–it’s okay to change EOs with no warning.

So all Obama has to do to authorize the indefinite detention of the banksters that represent the biggest threat to our security right now is simply pixie dust his EO, and voila! He can round up the banksters, put them on some tropical island somewhere (I suspect they’ll feel right at home in the Cayman Islands).

It’s as easy as that, vanquishing a security threat, arbitrarily detaining people in the name of security forever.

Right?

DOD Passes the Buck Rather than Let Kucinich Visit Bradley Manning

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On February 4, Dennis Kucinich asked DOD to allow him to visit Bradley Manning so he could assess his conditions of confinement. On February 8, Robert Gates wrote Kucinich a short note telling him we was referring his request to Secretary of the Army, John McHugh. In a letter dated February 24–but apparently not received in Kucinich’s office until March 1–McHugh told Kucinich he was referring his request to the Assistant Secretary of Defense for Legislative Affairs.

In short, a full month after the date when a member of Congress requested a visit with Manning, DOD is still stalling on a real response with bureaucratic buck-passing.

As to the substantive response McHugh offered Kucinich? It matches all the disingenuous boilerplate responses the rest of DOD has offered–claiming that Manning is treated as any other “similarly situated” pretrial detainee at Quantico, without mentioning that there is at most one other Max prisoner, and none who have been held on Prevention of Injury watch for eight months.

PFC Manning experiences the same confinement conditions as other similarly situated pretrial prisoners at the MCBQ Pretrial Confinement Facility.

In addition, McHugh appeals to the same bogus privacy excuse that Quantico is now using to avoid explaining why they’re submitting Manning to the same treatment they used at Abu Ghraib.

PFC Manning’s custody and status classifications, like all pretrial prisoners at the MCBQ Pretrial Confinement Facility, are evaluated regularly by a board of corrections specialists pursuant to Department of Navy regulations. As United States laws prohibit the release of personal identification, including personal health information, I am not able to discuss PFC Manning’s specific custody and status classifications and other aspects of his care and treatment.

Effectively, they’re using “privacy” as their excuse not to admit that under POI, Manning is subject to some of the same degrading techniques we objected to in Gitmo and Abu Ghraib.

Kucinich isn’t missing that parallel, either. In his response today, he said,

My request to visit with Pfc. Manning must not be delayed further. Today we have new reports that Manning was stripped naked and left in his cell for seven hours. While refusing to explain the justification for the treatment, a marine spokesman confirmed the actions but claimed they were ‘not punitive.’

Is this Quantico or Abu Ghraib? Officials have confirmed the ‘non-punitive’ stripping of an American soldier who has not been found guilty of any crime. This ‘non-punitive’ action would be considered a violation of the Army Field Manual if used in an interrogation overseas. The justification for and purpose of this action certainly raises questions of ‘cruel and unusual punishment,’ and could constitute a potential violation of international law. [my emphasis]

As I said, it has been a full month since Kucinich made a legitimate request to visit with an American citizen who, thus far, must be assumed innocent. Yet DOD seems to be deploying the most transparent kind of bureaucratic stall to prevent Kucinich form visiting Manning.

Update: Corrected date of Gates note.

DOD, State, and Obama’s “Pretend” Desire to Close Gitmo

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Robert Chesney had an interesting observation about the inter-agency group Dafna Linzer reports is working on some kind of statement with regards to Congress’ restrictions on Obama’s ability to move detainees from Gitmo to the US: the apparent non-participation of DOD in the group.

Second, and perhaps relatedly, note that the story also describes the interagency meetings concerning a possible signing statement, meetings that apparently involved a “small circle of policymakers and lawyers from the White House, the Justice Department and State Department” who “spent the closing hours of 2010 considering drafts for a statement.”  What is interesting about that is the apparent absence of the Defense Department.  Of course, not being involved in drafting would not necessarily mean that DOD has no or little voice in the matter, but it certainly would not suggest DOD has much of a role either.  One might respond that this is really a question for DOJ and the White House Counsel’s office of course, but in that case why is State there?  State has clear equities, of course, so I think it makes perfect sense to include it.  But DOD’s equities seem at least as substantial (yes, the IC has equities here as well, but the DOD omission is what strikes me as remarkable – if there really is an omission).

While I don’t know this to be a case, I’d suggest that we might pair that observation with one I made yesterday: that one of Linzer’s sources used the word “pretend” when discussing Obama’s purported plans to close Gitmo.

If the bill were signed without challenge, the remaining prosecutorial option left for the administration would be to charge detainees in military commissions at Guantanamo, with those convicted serving time at the facility. So far, the administration has been unwilling to bring new charges in that setting.

“The bill,” said one administration official, “undermines the principles outlined in the president’s archives speech and there is no way to pretend you are closing Guantanamo if that law goes through unchallenged.” [my emphasis]

As Adam Serwer noted some weeks ago, if the Obama Administration really objected to Congress restricting its prosecutorial power in this matter, it would have rolled out the Republican Bob Gates to talk about how important closing Gitmo is to winning the war on terror.

I don’t know whether the administration blessed this deal, but they certainly haven’t brought out the big guns–a few words from Defense Secretary Robert Gates would probably go a long way towards dissuading the Senate from going through with this.

(Though Serwer goes on to suggest that another way Obama could indicate the seriousness of his opposition to the restriction would be to issue a signing statement–now we know who to blame for this idea!)

If your desire to close Gitmo is now just pretend, make-believe, then why involve DOD at all? Indeed, a “pretend” desire to close Gitmo would well explain why you involve State, but not DOD.

As I have noted, one of the revelations in the Wikileaks cables is the way in which Spain advised us how to help it combat torture investigations in that country: by proving that some kind of legal process was ongoing in the US.

Zaragoza has also told us that if a proceeding regarding this matter were underway in the U.S., that would effectively bar proceedings in Spain. We intend to further explore this option with him informally (asking about format, timing, how much information he would need, etc.) while making it clear that the USG has not made a decision to follow this course of action.

And the diplomats involved–writing to Secretary of State Clinton–make it clear they will find out from Spain what such a proceeding must look like to serve the purpose of staving off a Spanish investigation.

After which, DOJ seeems to have embarked on a “pretend” investigation into torture that–they insist–is ongoing.

Who do you think the audience for any “pretend” effort to close Gitmo would currently be? Certainly not the bulk of the American people, who have been thoroughly suckered by GOP fearmongering on Gitmo. Nor, probably, would the primary audience be al Qaeda and its potential recruits, which would probably be far more impressed at this point if the US decided to halt drone strikes than if it closed Gitmo.

Indeed, it seems clear that the only reason Obama would feel obliged to pretend to want to close Gitmo anymore (because God knows he seems thoroughly unconcerned by civil libertarians squawking about his campaign promises) is the international community.

And so a statement about Obama opposition to Congress tying his hands on Gitmo wouldn’t matter to DOD, because nothing at Gitmo is actually going to change (aside from his face-saving EO on indefinite detention). But it would matter to the State Department, because they would be the ones who might have had discussions about what a “pretend” effort to close Gitmo would have to look like to please our allies and make them willing to continue to partner with us on counter-terrorism.

Which might explain why no one at the White House will claim Obama actually wants to use a hypothetical signing statement. Because merely issuing one–but not actually relying on it–would serve its intended purpose: to allow the Administration and our allies to pretend that the US wants to close Gitmo.

Update: YouTube added per PeasantParty.

The Secrets They’re Keeping Selectively Leaking about Anwar al-Awlaki

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As I noted yesterday (and Glenn has examined at more length), in addition to asserting that the government can target Anwar al-Awlaki … because they said so, the Obama Administration also invoked state secrets in its motion to dismiss the ACLU/CCR suit challenging targeted killings.

The Obama Administration has officially positioned itself to the right of hack lawyer David Rivkin.

But the state secrets invocation is interesting not just because it shows a Democratic Administration out-hacking a noted hack.

For example, I think the invocation shows just how weak they recognize their own argument to be. Consider what Robert Gates (who invoked something newfangled called the “military and state secrets privilege”) and James Clapper described as falling under their invocation of state secrets (Leon Panetta basically said only that CIA could neither confirm nor deny its involvement, which sort of makes me wonder whether CIA really has targeted al-Awlaki or not).

Robert Gates:

A. Intelligence information DoD possesses concerning AQAP and Anwar al-Aulaqi, including intelligence concerning the threat AQAP or Anwar al-Aulaqi pose to national security, and the sources, methods, and analytic processes on which any such intelligence information is based;

B. Information concerning possibly military operations in Yemen, if any, and including criteria or procedures DoD may utilize in connection with such military operations; and

C. Information concerning relations between the United States and the Government of Yemen, including with respect to security, military, or intelligence cooperation, and that government’s counterterrorism efforts.

James Clapper:

A. (U) Intelligence information concerning al-Qaeda and the sources and methods for acquiring that information.

B. (U) Intelligence information concerning AQAP and the sources and methods for acquiring that information.

C. (U) Intelligence information concerning Anwar al-Aulaqi and the sources and methods for acquiring that information.

The Administration is sort of kind of relying on the President’s authority under the AUMF (unless the judge doesn’t buy that argument, in which case the Administration promises to try something else), which states:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In other words, the Administration is relying on some tie between AQAP and the al Qaeda organization that hit us on 9/11 for its authority to kill an American citizen with no due process. Mind you, it can’t say precisely what that tie is–whether AQAP is al Qaeda or whether it is just closely connected enough to be included under the AUMF. But that’s precisely what it has called a state secret: the evidence of ties between the group against which Congress declared war in 2001 and the group we’re targeting in Yemen.

Effectively, the Executive Branch–with no known support from Congress–is saying we’re at war against AQAP. But it’s also saying no one outside of select people within the Executive Branch (and, presumably, a group of four or maybe eight members of Congress who serve in leadership or on the Intelligence Committees) can see the evidence that proves we’re at war against AQAP.

The President has unilaterally declared war against a group but then said no one can see why he has done so.

And then both Gates and Clapper invoke state secrets over the evidence the government has against al-Awlaki.

Rather than prove to a judge that they even have reasonable suspicion to believe al-Awlaki is part of AQAP, much less enough evidence to execute him, the government has instead asserted that all of that is a state secret. They’ve declared everything al-Awlaki would need to challenge his execution a state secret. Even KSM will be able to see the evidence against him; and he has admitted to killing 3,000 Americans. But American citizen al-Awlaki, whom no one has accused of actually killing anyone, can’t see the same kind of information.

Finally, there’s the tired old sources and methods catch all. We can’t know how the government has collected the evidence it has against al-Awlaki.

Except we already do.

Thanks largely to the efforts of Crazy Pete Hoekstra, we know that the government had wiretaps on al-Awlaki going back at least since December 2008. Al-Awlaki himself has challenged the government to release the intercepts they have on him (which public reports say include correspondence with tens of thousands of people). Al-Awlaki has even made some of that correspondence available himself. But the government says all that is a state secret.

Furthermore, some of the evidence against al-Awlaki appears in court documents, from the public testimony of Umar Farouk Abdulmutallab. The alleged recruitment of Abdulmutallab is one of the key issues the government describes al-Awlaki to have been involved in. That information is public. Yet the government also says it is a state secret.

And if all this really is a state secret, then why isn’t Crazy Pete Hoekstra in jail? Read more →

Obama Doesn’t Know Why the Fuck He’s Entitled to Kill Al-Awlaki, He Just Is, Damnit

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The most striking aspect of the government’s motion to dismiss the ACLU/CCR lawsuit challenging the use of targeted killing is that the government does not commit to the basis for its authority to kill an American citizen like Anwar al-Awlaki with no review.

This starts as soon as the filing tries to lay the ground work for unchecked authority under the AUMF. It doesn’t commit to whether Al Qaeda in the Arabian Peninsula is part of al Qaeda itself, or is instead just closely enough associated to count under the AUMF.

The United States has further determined that AQAP is an organized armed group that is either part of al-Qaeda, or is an associated force, or cobelligerent, of al-Qaeda that has directed armed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court recognized in Hamdan v. Rumsfeld, 548 U.S. 557, 628-31 (2006).

[snip]

Furthermore, as noted above, the Executive Branch has determined that AQAP is an organized armed group that is either part of al-Qaeda or, alternatively, is an organized associated force, or cobelligerent, of al-Qaeda that has directed attacks against the United States in the noninternational armed conflict between the United States and al-Qaeda that the Supreme Court has recognized (see Hamdan, 548 U.S. at 628-31). [my emphasis]

Though note the gigantic slip here: the AUMF only declares war against those “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons” (when AQAP didn’t exist in its current form), not those who have attacked us since. This “either/or” statement only claims that AQAP is part of the same war, not that it had any role in 9/11, so it’s totally bogus in any case, even without the betrayal of their lack of confidence in both of these claims with the either/or construction.

Presumably to tie AQAP more closely to the AUMF, the government then notes that the Treasury declared AQAP a terrorist organization (not noting that that happened eight months after al-Awlaki was first targeted for assassination), which in turn relies upon a Presidential declaration issued roughly around the same time as the AUMF.

Based in part on this information, on July 16, 2010, the U.S. Department of the Treasury issued an order designating Anwar al-Aulaqi a “Specially Designated Global Terrorist” (SDGT) for, inter alia, “acting for or on behalf of al-Qaeda in the Arabian Peninsula (AQAP) . . . and for providing financial, material or technological support for, or other services to or in support of, acts of terrorism[.]” Designation of ANWAR AL–AULAQI Pursuant to Executive Order 13224 and the Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233, 43234 (July 23, 2010).1

1 This designation was issued pursuant to the President’s authority under the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-06. After the terrorist attacks of September 11, 2001, the President issued Executive Order No. 13224 (“E.O. 13224”), 66 Fed. Reg. 49,079 (2001), effective September 24, 2001, declaring a national emergency with respect to the “grave acts of terrorism . . . and the continuing and immediate threat of further attacks on United States nationals or the United States.” See E.O. 13224, Preamble. The Secretary of State previously designated AQAP as a Foreign Terrorist Organization on January 19, 2010, pursuant to her powers under the Antiterrorism and Effective Death Penalty Act, 8 U.S.C. § 1189. (See http://www.state.gov/r/pa/prs/ps/2010/01/135364.htm).

Gosh! That’s almost like AQAP was included in the AUMF back in 2001, the reliance on a declaration made just days after the AUMF itself.

Except it’s not. (And the argument itself presumes that anyone Timmeh Geithner wants to call a terrorist can be killed with no due process, whether or not they have a tie to Al Qaeda.)

You can tell DOJ’s lawyers recognize this to be a gaping hole in their argument, because they repeatedly claim–without providing any evidence–that they have been authorized by “the political branches” to use all means against the threat that Al-Awlaki is part of.

In particular, plaintiff’s requested relief would put at issue the lawfulness of the future use of force overseas that Executive officials might undertake at the direction of the President against a foreign organization as to which the political branches have authorized the use of all necessary and appropriate force.

[snip]

More broadly, the Complaint seeks judicial oversight of the President’s power to use force overseas to protect the Nation from the threat of attacks by an organization against which the political branches have authorized the use of all necessary and appropriate force, in compliance with applicable domestic and international legal requirements, including the laws of war. See Authorization for Use of Military Force (AUMF), Pub. L. No. 107 40, 115 Stat. 224 (2001) (Joint Resolution of Congress signed by the President). [my emphasis]

Last I checked, only one political branch has the authority to declare war, Congress. Not multiple political branches. That the Administration has even invoked political branches, plural, for their authority to use force–basically arguing “we and that rump organization better known as Congress have authorized this, so there!”–demonstrates the audacity of their claim to self-authorize using unlimited power.

Presumably to reinforce the magic power of this strange invocation of the political branches, the filing then argues that judges aren’t equipped “to manage” the Executive Branch.

The Judiciary is simply not equipped to manage the President and his national security advisors in their discharge of these most critical and sensitive executive functions and prescribe ex ante whether, where, or in what circumstances such decisions would be lawful. Whatever the limits of the political question doctrine, this case is at its core.

Of course, that’s not what the suit asks the court to do at all. It asks the court to review the decisions of the Executive Branch, not least to see whether its actions comply with the terms which that other political branch–the one that actually has the authority to declare war–has laid out.

Review … manage.

What’s the difference if an American citizen’s life is at stake?

Read more →

America Picks and Chooses Among Extra-Legal Entities Destabilizing the World

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I wanted to add to what David Dayen had to say about these two stories.

Last week, the WaPo quoted at least two military figures stating, as fact, that the Taliban was a bigger threat to the US mission in Afghanistan than corruption. Based on that judgment, the WaPo suggests “military officials” are now pursuing a policy of tolerating some corruption among Afghan allies.

Military officials in the region have concluded that the Taliban’s insurgency is the most pressing threat to stability in some areas and that a sweeping effort to drive out corruption could create chaos and a governance vacuum that the Taliban could exploit.

“There are areas where you need strong leadership, and some of those leaders are not entirely pure,” said a senior defense official. “But they can help us be more effective in going after the primary threat, which is the Taliban.”

[snip]

Kandahar is not just a Taliban problem; it is a mafia, criminal syndicate problem,” the senior defense official said, speaking on the condition of anonymity because of the sensitivity of the subject. “That is why it is so complicated. But clearly the most pressing threat is the Taliban.”

Now, the WaPo headline suggests this is definitely the plan, but the story itself admits that it is unclear whether everyone in the Obama Administration agrees with the plan.

It was not immediately clear whether the White House, the State Department and law enforcement agencies share the military’s views, which come at a critical time for U.S. forces in Afghanistan.

Indeed, the WaPo piece anonymously quotes an adviser (apparently, but not certainly, civilian) advocating for a crackdown on corruption. And it acknowledges that earlier this year some diplomats and military leaders called to arrest Ahmed Wali Karzai, but Stanley McChrystal scuttled the effort.

So it seems this initiative may come from the DOD side, and if this represents Administration (as opposed to DOD) policy, then clearly not everyone has bought off on it. Which makes it worth cataloging those in the story who might qualify as the “senior defense official” endorsing this new policy. The story quotes the following:

  • Robert Gates, introduced in an apparent non-sequitur between two quotes from the “senior defense official,” visiting two Army units fighting around Kandahar
  • David Petraeus talking about efforts to stem the US contract funds that fuel corruption
  • Lieutenant General David Rodriguez, hailing efforts to set up councils of elders who can decide how to spend reconstruction funds

(Stephen Biddle, of the Council on Foreign Relations, is also quoted supporting this policy.)

Assuming the WaPo is following accepted practice about anonymous quotations, I’d bet a few pennies that the “senior defense official” declaring that the Taliban is a bigger threat than corruption or drugs is Robert Gates.

Read more →

Military Commissions Good Enough for Teen Acting in Self-Defense, But Not Alleged Cole Bomber

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The WaPo reports that the Administration has shelved plans to try Abd al-Rahim al-Nashiri in military commissions.

The decision at least temporarily scuttles what was supposed to be the signature trial of a major al-Qaeda figure under a reformed system of military commissions. And it comes practically on the eve of the 10th anniversary of the attack, which killed 17 sailors and wounded dozens when a boat packed with explosives ripped a hole in the side of the warship in the port of Aden.

In a filing this week in the U.S. Court of Appeals for the District of Columbia, the Justice Department said that “no charges are either pending or contemplated with respect to al-Nashiri in the near future.”

The statement, tucked into a motion to dismiss a petition by Nashiri’s attorneys, suggests that the prospect of further military trials for detainees held at Guantanamo Bay, Cuba, has all but ground to a halt, much as the administration’s plan to try the accused plotters of the Sept. 11, 2001, attacks in federal court has stalled.

Only two cases are moving forward at Guantanamo Bay, and both were sworn and referred for trial by the time Obama took office. In January 2009, Defense Secretary Robert M. Gates directed the Convening Authority for Military Commissions to stop referring cases for trial, an order that 20 months later has not been rescinded.

Which of course means that our government (though the article suggests this is a distinction between the Bush and Obama Administrations, since Gates–though he spans both Administrations–has not ordered the Convening Authority to start referring cases) has decided it’s okay to try Omar Khadr, who was 15 and arguably acting in self-defense for his alleged crime, in a military commission. But not to try al-Nashiri, at least allegedly a genuine terrorist.

To be fair, the WaPo suggests the Administration is holding off until it can have civilian trials for other High Value Detainees (presumably, still the 9/11 conspirators). So it may well be a supportable goal. But it all seems to add to the Kangaroo stench around the military commissions.

US Paramilitaries in Colombia: Now Twice as Illegal

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Remember that Jeremy Scahill report that listed Colombia among the 75 places where JSOC has deployed?

The Nation has learned from well-placed special operations sources that among the countries where elite special forces teams working for the Joint Special Operations Command have been deployed under the Obama administration are: Iran, Georgia, Ukraine, Bolivia, Paraguay, Ecuador, Peru, Yemen, Pakistan (including in Balochistan) and the Philippines. These teams have also at times deployed in Turkey, Belgium, France and Spain. JSOC has also supported US Drug Enforcement Agency operations in Colombia and Mexico. The frontline for these forces at the moment, sources say, are Yemen and Somalia. “In both those places, there are ongoing unilateral actions,” said a special operations source. “JSOC does a lot in Pakistan too.”

In my post on it, I noted that we’re engaging in belligerent activities without apparent legal approval to do so. But that was because this program seemed to use the legal approval to fight al Qaeda to fight other entities, like Latin American leftist terrorist or drug cartels.

Wednesday, the Colombian aspect of our paramilitary activities became even more illegal, because a Colombian court struck down that country’s cooperation agreement with the US because it lacked Congressional approval. (h/t Max Fisher who has a bunch of interesting links on this development)

A high court in Colombia has voided an accord with the United States that would allow an increased U.S. presence on seven Colombian military bases. The ruling on Tuesday by the Constitutional Court declared the agreement signed by outgoing President Alvaro Uribe unconstitutional because it bypassed approval of the Congress.

The agreement was signed in October and faced intense criticism from Colombia’s more left-leaning neighbors, including Venezuela and Bolivia. President Juan Manuel Santos (pictured above right), who was inaugurated on Aug. 7, enjoys a wide political majority in Colombia’s Congress and told reporters Wednesday that the ruling would have no effect on cooperation between the U.S. and its closest ally in Latin America.

It may well be that Uribe’s successor, Santos, simply gets Congressional approval for this. But until that happens, this decision serves to heighten questions about US involvement in Latin American, not least with regards to incursions into populist Venezuela and Ecuador.

As Adam Isacson explains, this won’t prevent US paramilitaries from doing what they have already been doing.

U.S. military and contractor personnel were still acting under the authorities laid out in a series of old accords (1952, 1962, 1974, 2004, 2007), whose validity the Colombian court did not challenge.Under these old accords, U.S. personnel have already been frequently present at the seven bases listed in the DCA, as well as several others. The difference is that today, there is no “free entry”: each U.S. deployment is subject to a series of Colombian government approvals that would be unnecessary under the DCA. It also means that construction of new facilities at the Palanquero airbase in Puerto Salgar, Cundinamarca – for which Congress appropriated $46 million in 2010 – cannot yet begin.

But it may result in more scrutiny–in Latin America, at least–at what our troops and contractors are doing. (It also may increase pressure on the Administration to pass the free trade accord with Colombia.)

Petraeus’ Challenge to Obama

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As I noted in this post, the front page NYT story putting Petraeus in charge of the paramilitary groups I will call “JUnc-WTF,” which are deployed in allied countries, reminded me of Eric Massa’s allegations that Dick Cheney and Petraeus were plotting a coup (though, as Massa describes it, it sounds more like an “election challenge”).

• Earlier in the year, long before the allegations had been made public, Massa had called me with a potentially huge story: Four retired generals — three four-stars and one three-star — had informed him, he said, that General David Petraeus, the head of U.S. Central Command, had met twice in secret with former vice president Dick Cheney. In those meetings, the generals said, Cheney had attempted to recruit Petraeus to run for president as a Republican in 2012.

• The generals had told him, and Massa had agreed, that if someone didn’t act immediately to reveal this plot, American constitutional democracy itself was at risk. Massa and I had had several conversation on the topic, each more urgent than the last. He had gone to the Pentagon, he told me, demanding answers. He knew the powerful forces that he was dealing with, he told me. They’d stop at nothing to prevent the truth from coming out, he said, including destroying him. “I told the official, ‘If I have to get up at a committee hearing and go public with this, it will cause the mother of all shitstorms and your life will be hell. So I need a meeting. Now.'”

The Esquire has a follow-up noting it would only be a problem if Petraeus starting running while still on active duty and Politico has a denial from Petraeus’ people.

Then there’s Jonathan Alter’s report of the tensions last year between Obama and Joe Biden on one side, and Bob Gates, Mike Mullen, David Petraeus, and Stanley McChrystal on the other. Alter describes the span of this confrontation as starting on September 13, two weeks before Petraus signed the directive for JUnc-WTF, until November 11. The confrontation arose when the Generals kept publicizing their demands for a bigger, indefinite surge in Afghanistan.

Mullen dug himself in especially deep at his reconfirmation hearings for chairman of the Joint Chiefs when he made an aggressive case for a long-term commitment in Afghanistan. White House chief of staff Rahm Emanuel was enraged at Mullen’s public testimony and let the Pentagon know it. When Petraeus gave an interview to Washington Post columnist Michael Gerson on Sept.4 calling for a “fully resourced, comprehensive counterinsurgency campaign,” the chief of staff was even angrier.

From the start, the potential of a Petraeus presidential run was in the background.

Some aides worried at least briefly that Petraeus was politically ambitious and was making an implied threat: decide Afghanistan my way or I just might resign my command and run for president in 2012. It wasn’t a crazy thought. Rep. Peter King and various blogs were promoting him for high office.

Ultimately, presented with the choice of deferring to the Generals or undercutting them, Obama chose a third option: surging in Afghanistan, but sternly scolding them to make sure they would back a withdrawal in 18 months.

Obama was perfectly aware of the box he was now in. He could defer entirely to his generals, as President Bush had done, which he considered an abdication of responsibility. Or he could overrule them, which would weaken their effectiveness, with negative consequences for soldiers in the field, relations with allies, and the president’s own political position. There had to be a third way, he figured.

In the meantime it was important to remind the brass who was in charge. Inside the National Security Council, advisers considered what happened next historic, a presidential dressing-down unlike any in the United States in more than half a century. Read more →

The “Detainees Subject to the Review”

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MadDog linked to the letter that Dennis Blair and Eric Holder sent the Senate describing the process by which 6 agencies and a 100 staffers meticulously decided the ultimate fate of Gitmo detainees–who could be released or imprisoned elsewhere, who could be tried, and (presumably) who had to be held indefinitely. It might be a reassuring letter for its portrayal of the deliberation and rationality applied to Gitmo detainees.

Except for this phrase, repeated twice: “all 240 detainees subject to the review.”

After carefully considering each case, the six agencies reached unanimous agreement on disposition determinations for all 240 detainees subject to the review.

[snip]

After all of the deliberations described above, the DNI-either personally for cases considered by Principals or by delegation to the ODNI official on the Review Panel-agreed with the other five agencies on disposition determinations for all 240 detainees subject to the review.

This process, apparently doesn’t apply to all detainees. Only the detainees “subject to the review.” Now perhaps they’re just making the distinction between Gitmo detainees and those in some black hole in Bagram or some other secret site. But it sure seems to be referring just to Gitmo detainees. In which case, there must be other Gitmo detainees, outside of the 240, who are not “subject to the review.”

Why? Who are they?

Executive Order 13492, which instituted this review, provides two potential hints. First, it provides this definition:

(c) “Individuals currently detained at Guantánamo” and “individuals covered by this order” mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

This would seem to leave out detainees held by CIA or contractors (maybe?). And it would seem to leave out those detainees whom DOD had simply never called nor treated as an enemy combatant. You know those family members Mary keeps asking about? They wouldn’t be enemy combatants, would they?

The EO also suggests DOD would have authority over any other detainees.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

So while this letter to the Senate sounds like a wonderful work of rational deliberation, it also seems to hint at some remaining Kafkaesque hole, whereby some people who have not been deemed enemy combatants remain in some arbitrary limbo not covered by this great display of rational deliberation.

Update: Hmmm is right: the EO lets the Secretary of Defense do what he will with all the other detainees (which I guess makes it especially useful if your Secretary of Defense is an old Chief Spook). I’ve fixed the post accordingly.