“Terrorists are cowards. Torturers are, too.”

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Former Gitmo prosecutor Morris Davis makes, in really powerful fashion, a point I’ve been contemplating: how does Hillary Clinton get off criticizing the torture of Syrian teenager Hamza Ali al-Khateeb or Pakistani journalist Syed Saleem Shahzad when we have done nothing to hold those who tortured Mohammed al-Qahtani accountable? (h/t Michelle Shephard)

In the fall of 2005, when I was chief prosecutor for the military commissions at Guantanamo Bay, Cuba, I sat down for a lengthy discussion with a veteran member of the prosecution team, a Marine Corps officer with an extensive background in criminal prosecution. We discussed a case that caused him concern, one he said he was not comfortable prosecuting. After describing some of the specifics of the detainee’s treatment at Guantanamo, which was documented in official records, the prosecutor said: “Sir, they fucked with him and they fucked with him until now he’s as crazy as a shit-house rat.” In an interview with Bob Woodward published in the Washington Post in January 2009, Susan Crawford, the Bush administration official who supervised the military commissions, explained why she refused to send the same case to trial when it reached her desk in the spring of 2008. “We tortured Qahtani,” she said, “His treatment met the legal definition of torture.”

The alleged torture of Hamza Ali al-Khateeb, Syed Saleem Shahzad, and Mohammed al Qahtani by government agents that signed the Convention Against Torture begs the question, is a law that is ignored worth the paper it is written on?

If we want to criticize others for their crimes, Davis argues, then we need to practice what we preach.

Who decides which obligations are truly obligatory and which means go too far to ever justify the ends? Chemical weapons may have been a fast and convenient way to defeat the Taliban and al Qaeda in the rugged Tora Bora region in late 2001 and may have killed Bin Laden a decade earlier, but is effectiveness, or that it might work, or that others do it justification to violate the Chemical Weapons Convention prohibitions and commit a war crime? If the standard is the United States decides ad hoc which commitments it will honor and which it will not then it should be honest and repudiate those it considers non-binding and the sense to stop the hypocritical criticism of others that fail to live up to its “do as we say, not as we do” example. On the other hand, if the United States means what it says about the rule of law, it has to demonstrate that it practices what it purports to preach.

And he ends by calling on decent people to reclaim our national moral compass.

Do decent human beings have the temerity to stand up and insist the law be enforced? Does the United States have the integrity to lead by example, or has the government engaging in torture become as accepted as government official lying when the truth is inconvenient? We need to find our moral compass.

Go read it.

Next They’ll Put Gitmo Transfer Prohibitions on USDA Funding

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A number of people have commented on the Obama Administration’s statement of opposition to a ban on Department of Homeland Security funding for Gitmo detainee transfers. Here’s Benjamin Wittes:

The administration just issued a Statement of Administration Policy on a DHS appropriations bill (H.R. 2017), which contains a spending restriction similar to one of the Guantanamo transfer restrictions that provoked the administration’s recent veto threat with respect to the McKeon legislation. Yet oddly, this time, there is no veto threat.

[snip]

I can think of two possible explanations beyond mere clerical error: First, and I certainly hope this is not the explanation, perhaps the administration is backing off the veto threat. Second, perhaps the transfer restrictions with respect to domestic civilian trials are only veto-worth in combination with the other (from the administration’s point of view) objectionable features of the McKeon bill but are on their own merely worthy of opposition.

In any event, it’s a little puzzling.

And here’s Josh Gerstein:

The view that Obama suddenlty toughening his line against Congressional efforts to constrain his authority to prosecute and move detainees gathered steam just last week when the administration threatened a veto of the Department of Defense Authorization bill over detainee-related provisions including one that appears to prevent any war-on-terror detainee placed in U.S. military custody from ever being transferred to the U.S.

However, the details of what precise measures or combination of measures would trigger a veto from Obama was unclear in the statement on the latest DoD bill, perhaps deliberately so. The official administration statement on the Homeland Security bill appears to indicate that a simple re-upping of the restrictions Obama signed with some complaints in December won’t be enough by itself to get a bill vetoed.

Now, I frankly agree with Josh that the Defense Authorization was designed, in part, for maximum ambiguity about what might draw a veto.

But I think there’s an even easier two-part explanation for not issuing a veto threat here.

This is the Department of Homeland Security appropriation. DHS doesn’t exactly have primary jurisdiction over detainee affairs. And all this does is reaffirm the status quo (albeit without time limits).

Now, as Daphne Eviatar has pointed out to me via email, the language purports to apply to the DHS appropriation as well as any other act.

SEC. 537

None of the funds appropriated or otherwise made available in this or any other Act may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions, including detaining, accepting custody of, or extending immigration benefits to, Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after June 24, 2009, at the United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense. [my emphasis]

So I suppose Congress could argue that this language governs all appropriations bills, including DOD and DOJ appropriations that would actually come into play in detainee affairs. And if so, it would eliminate one of the loopholes the ACLU pointed out in the language in the Defense Authorization for this year, which Obama already signed, which only prohibited the use of DOD funds, but not DOJ funds.

SEC. 1032. PROHIBITION ON THE USE OF FUNDS FOR THE TRANSFER OR RELEASE OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.

None of the funds authorized to be appropriated by this Act for fiscal year 2011 may be used to transfer, release, or assist in the transfer or release to or within the United States, its territories, or possessions of Khalid Sheikh Mohammed or any other detainee who—

(1) is not a United States citizen or a member of the Armed Forces of the United States; and

(2) is or was held on or after January 20, 2009, at United States Naval Station, Guantanamo Bay, Cuba, by the Department of Defense.

Yet Obama’s opposition to this amendment seems like a repeat of the status quo that already exists, with the White House complaining but not vetoing the restriction.

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Can’t We Call this “Counter-Terrorism Preparedness”?

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Jared Bernstein (whose blog I still recommend) has responded to his 2-day PEPCO power outage by posting the crummy infrastructure report card the US got in 2009:

Check out the 2009 Report Card from the American Society of Civil Engineers:Aviation D

Bridges C

Dams D

Drinking Water D-

Energy D+

Hazardous Waste D

Inland Waterways D-

Levees D-

Public Parks and Recreation C-

Rail C-

Roads D-

Schools D

Solid Waste C+

Transit D

Wastewater D-

America’s Infrastructure GPA: D

Estimated 5 Year Investment Need: $2.2 Trillion

Bernstein’s take (channeling Atrios) is that fixing all this infrastructure ought to be a good way to get 20 million people back to work.

But fixing just about every single one of these infrastructure problems is also a way to make our country more resilient to terrorism. Bridges? Dams? They make attractive terrorist targets, particularly if they’re already crumbling. Drinking water? Another vulnerability to terrorist attacks. Rails? We know Osama bin Laden was reviewing plans to derail trains (as it crossed a bridge–this one’s a twofer).

So can’t we start fixing this stuff and, rather than calling it stimulus, call it “counter-terrorism preparedness”? There’s no way, of course, the idiots in DC would support 2 trillion of stimulus, but their willingness to keep funding multiple wars in the name of terrorism–to the tune of trillions–show they might do so if we can give it a national security spin.

And between us? If we fixed things like levees and energy plants, we’d also be more resilient to things like earthquakes and climate change. Mind you, if Republicans found out about that, it’d be enough reason to defund it. So we’ll just keep that part a secret between us.

Chiquita: The Guns and Drugs and Union Killing CNN Didn’t Mention

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CNN has a report today on some of the many lawsuits victims of right and left wing violence have taken against Chiquita.

Family members of thousands of Colombians who were killed or who disappeared are suing Chiquita Brands International, alleging the produce company is liable because of its payments to paramilitaries.”We’re holding them accountable,” said Paul Wolf, a Washington-based attorney who is handling cases for family members of more than 2,000 victims.

[snip]

A federal judge in Florida is weighing whether the lawsuits, which constitute more than 4,000 claims against Chiquita, will go to trial.

I’m glad CNN has called attention to the suits. But I wanted to point out some of the important details, including the following details from a suit filed last March.

There’s the way Chiquita helped the right wing AUC import 3000 AK-47s.

In 2001, Chiquita facilitated the clandestine and illegal transfer of arms and ammunition from Nicaragua to the AUC.

[snip]

Instead of docking in Panama, the Otterloo [a ship registered in Panama and carrying 3000 AK-47s] instead went to Turbo, Colombia, where Chiquita, through Banadex, operated a private port facility for the transport of bananas and other cargo.

After the Otterloo docked at Chiquita’s port in Turbo, Banadex employees unloaded crates containing the assault rifles and ammunition. On information and belief, the AUC, which had free access to the port, then loaded these rifles onto AUC vehicles and took possession of them.

And there’s the way Chiquita helped the AUC export coke.

Colombian prosecutors have charged that the AUC shipped drugs on Chiquita’s boats carrying bananas to Europe.

[snip]

More than one and a half tons of cocaine have been found hidden in Defendant’s produce, valued at over 33 million dollars. Two of the ships on which drugs were found were named the Chiquita Bremen and the Chiquita Belgie.

And finally, there’s the way Chiquita relied on AUC to break the unions.

After its agreement with Chiquita, the AUC understood that one goal of its campaign of terror was to force laborers to work in the plantations. Anyone who disobeyed the order knew what would happen  to them. For example, one individual who worked in Chiquita’s offices at a plantation in Urabá, was present when paramilitaries arrived at the plantation and summarily executed a banana worker who had been seen as a troublemaker because his slow work held up the production line. Another individual saw paramilitaries arrive to threaten banana workers after a salary dispute.

[snip]

In addition to directly suppressing labor activity, the paramilitaries regulated the banana-growing population and protected Chiquita’s profitability by controlling the provision of medical services in the towns of Urabá. Residents of Apartadó reported that they feared seeing doctors because they believed that medical personnel were under the control of the AUC. On information and belief, this arrangement benefited Chiquita because it allowed the paramilitaries to inform the company of its employees’ medical issues that could potentially affect labor productivity, including pregnancy.

Whether or not this suit goes forward (and new documents released in April by National Security Archive make it clear that Chiquita considered their ties to terrorist groups a quid pro quo), it’s important to document what it means when corporations team up with terrorist organizations.

Obama wants to extend “free” trade with Colombia, when it’s not all that clear that these practices have ended.

The Government’s PATRIOTic Databases on Innocent Americans

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As I reported yesterday, one of the amendments to the PATRIOT Act Harry Reid made sure wouldn’t get a vote pertained to making it clear how the government interprets the PATRIOT Act. Mark Udall and Ron Wyden wanted to force the government to at least explain how they were interpreting the law so constituents would know how lame their Senators were for voting in favor of it.

Spencer took the time to go ask some folks what this was about.

Among other things, Wyden explained that Section 215, as I suspected, was one of the concerns.

“It is fair to say that the business records provision is a part of the Patriot Act that I am extremely interested in reforming,” Wyden says. “I know a fair amount about how it’s interpreted, and I am going to keep pushing, as I have, to get more information about how the Patriot Act is being interpreted declassified. I think the public has a right to public debate about it.”

And Wyden notes that the government is increasingly using such secret interpretations.

“I’m talking about instances where the government is relying on secret interpretations of what the law says without telling the public what those interpretations are,” Wyden says, “and the reliance on secret interpretations of the law is growing.”

Which seems consistent with the February 2, 2011 briefing on yet another new use of PATRIOT.

DOJ didn’t want to answer Spencer’s questions. They sent him to some old Todd Hinnen testimony admitting to using it to get things like drivers licenses, as well as secret programs of indistinct number (I’m pretty sure there were just two a year ago) he won’t tell us about.

Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.  It has never been used against a library to obtain circulation records.  Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed.

In other words, DOJ chose not to send Spencer to Robert Mueller’s testimony where he admitted it had been used to collect information on hydrogen peroxide purchasers. Note that at Mueller’s earlier testimony–which took place just a couple of weeks after the government briefed the intelligence committees on this new use of Section 215–Wyden went on a bit of a rant on this same topic.

“I believe that the American people would be absolutely stunned, I think members of Congress, many of them, would be stunned, if they knew how the PATRIOT Act was being interpreted and applied in practice,” Wyden declared heatedly. “I’m going to insist in significant reform in this area. We’re not talking about operations and methods. There is a huge gap today between how you all are interpreting the PATRIOT Act and what the American people think the PATRIOT Act is all about and it’s going to need to be resolved…..Right now with respect to the executive branch’s official interpretation of what the law means, we’re not getting it.”

Wyden said the Justice Department should release Office of Legal Counsel opinions about what kinds of investigative activities are authorized under the PATRIOT Act. Intelligence committee members have seen those classified opinions, most other members of Congress and the general public have not.

Finally, though, Spencer pointed to Mark Udall’s speech in the Senate yesterday. His comments make it clear that the wider collection programs–like, presumably the hydrogen peroxide one–are targeted at all Americans, not just those suspected of terrorist ties.

For example, currently, the intelligence community can (1) place wide-ranging wiretaps on Americans without even identifying the target or location of such surveillance, (2) target individuals who have no connection to terrorist organizations, and (3) collect business records on law-abiding Americans, without any connection to terrorism. We ought to be able to at least agree that the source of an investigation under PATRIOT Act powers should have a terrorist-related focus. If we can’t limit investigations to terrorism, where do they end? Is there no amount of information that our government can collect that should be off limits? I know Coloradans are demanding that we at least place common-sense limits on government investigations and link data collection to terrorist-related activities.

If Congress passes this bill to extend the PATRIOT Act until 2015, it would mean that for four more years, the federal government will continue to have unrestrained access to private information about Americans who have no connection to terrorism – with little to no accountability about how these powers are used. Again, we all agree the intelligence community needs effective tools to combat terrorism, but we must provide those tools in a way that protects the constitutional freedoms of our people and lives up to the standard of transparency that democracy demands.

[snip]

Finally, I was joined by Senator Wyden in filing an amendment designed to narrow the scope of “business record” materials that can be collected under Section 215 of the PATRIOT Act. This amendment would still allow law enforcement agencies to use the PATRIOT Act to obtain such records, but would require those entities to demonstrate that the records are in some way connected to terrorism or clandestine intelligence activities.

Law enforcement currently can obtain any kind of records. In fact, the PATRIOT Act’s only limitation states that such information has to be related to “any tangible thing.” That’s right – as long as these business records are related to “any tangible thing,” the U.S. government can require businesses to turn over information on all of their customers, whether or not there is any link to terrorism. I don’t think it’s unreasonable to ask our law enforcement agencies to identify a terrorism investigation before seizing the private information of law-abiding American citizens. [my emphasis]

It’s clear they’re using Section 215 to just collect data–things like beauty supply purchases and geolocation data–to dump into government databases.

And something in the neighborhood of 85 Senators are about to give them the green light to continue doing so, all by lying to us that it’s about terrorism.

Why Didn’t FBI Investigate AFIP’s Role in Starting the Iraq-Anthrax Rumors?

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I’ve been reading the National Academy of Sciences Anthrax Report and noted something odd in follow-up to the McClatchy report of the other day describing unexplained tin and silicon in one of the anthrax samples. (Here’s Jim White’s post on the report.) As McClatchy reported, there’s some weird data about silicon and tin in some of the samples.

The lab data, contained in more than 9,000 pages of files that emerged a year after the Justice Department closed its inquiry and condemned the late Army microbiologist Bruce Ivins as the perpetrator, shows unusual levels of silicon and tin in anthrax powder from two of the five letters.

[snip]

To arrive at that position, however, the FBI had to discount its own bulk testing results showing that silicon composed an extraordinary 10.8 percent of a sample from a mailing to the New York Post and as much as 1.8 percent of the anthrax from a letter sent to Democratic Sen. Patrick Leahy of Vermont, far more than the occasional trace contamination. Tin — not usually seen in anthrax powder at all — was measured at 0.65 percent and 0.2 percent, respectively, in those letters.

But it turns out that the weirdest data–showing the 10.8 silicon in the NY Post sample–didn’t come from FBI. As NAS explained, that data came from the Armed Forces Institute of Pathology.

Early in the investigation, AFIP performed [scanning electron microscopy-energy-dispersive X-ray] SEM-EDX analysis of a New York Post letter sample and found regions in the sample having high silicon content but no oxygen, suggesting the presence of silicon-rich material that was not related to nanoparticulate silica. While this observation could have led to an explanation for the difference between the bulk and individual spore measurements, follow-up experiments apparently were not performed.

A release from AFIP describing their analysis of the Daschle letter (not the NY Post letter) is one of the most cited sources of the claim that the anthrax was weaponized in a uniquely Iraqi fashion.

“Ft Detrick sought our assistance to determine the specific components of the anthrax found in the Daschle letter,” said Florabel G. Mullick, MD, ScD, SES, AFIP Principal Deputy Director and department chair. AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica. “This was a key component,” Mullick said. “Silica prevents the anthrax from aggregating, making it easier to aerosolize. Significantly, we noted the absence of aluminum with the silica. This combination had previously been found in anthrax produced by Iraq.”

This was the analysis that a USAMRID scientist used to declare that the anthrax was weaponized–which said scientist retracted after later Sandia analysis was done (from the NAS report).

An initial finding by the Armed Forces Institute of Pathology (AFIP) found, upon gross examination, that the spores exhibited a silicon signal and sometimes exhibited an oxygen signal. Subsequent studies conducted by Sandia National Laboratories (as described in Chapter 4 of this report) determined that the silicon was localized to the spore coat within the exosporium—that is, it was incorporated into the cell as a natural part of the cell formation process. The USAMRIID scientist who first reviewed the AFIP results and made statements regarding the presence of silicon and possible weaponization retracted those earlier statements.

So some of this was known before–that AFIP served a key role in early rumors that the anthrax was weaponized in a way that pointed to Iraq. But the NAS report seems to confirm that the Iraq rumors originated at least in part from AFIP.

That’s all very interesting for several reasons. First, because FBI claims to have gotten data on AFIP’s SEM-EDX tests just last year.

The committee notes that this information was not made available to it or to the FBI until spring 2010.

That would mean FBI didn’t get (or ask for?) the information until after it had closed the investigation (they closed the investigation in February 2010)!

It would also suggest–rather incredibly–that FBI didn’t hunt down this information when they were stonewalling Jerry Nadler about it (as McClatchy reminds).

New York Democratic Rep. Jerrold Nadler asked FBI Director Robert Mueller how much silicon was in the Post and Leahy letters at a hearing before the House Judiciary Committee in September 2008. The Justice Department responded seven months later that silicon made up 1.4 percent of the Leahy powder (without disclosing the 1.8 percent reading) and that “a reliable quantitative measurement was not possible” for the Post letter.

More interesting still, NAS can’t explain what relationship existed between FBI and AFIP.

The committee also reviewed reports of work carried out in parallel at the AFIP although it is not clear how closely AFIP and the FBI investigative and scientific teams worked together or coordinated their efforts.

I’m also confused about when AFIP did these tests. In its list of official tests, NAS describes the AFIP SEM-EDX tests as having taken place in November 2001.

But somewhere along the way, perhaps along with information about the investigation of a claimed al Qaeda anthrax site explored in 2004, NAS got additional materials from AFIP dating to October 2001.

AFIP Materials related to USAMRIID Specimens October 2001 (41 pages)

And still more interesting is the reference to documents provided to NAS in December 2010–at the time when FBI was trying to stall the release of this document–showing AFIP, along with USAMRID, purportedly conducted anthrax studies on the remains of the Flight 93 9/11 hijackers.

Finally, in the new materials provided to the committee it is noted that [polymerase chain reaction] PCR analysis was performed on human remains from United flight 93 on 9/11/2001 that were identified as those of the hijackers (B3D1). Analysis was performed at USAMRIID and at AFIP for sequences diagnostic of B. anthracis. One assay at USAMRIID gave positive results, but these results were believed by the FBI to be due to laboratory contamination. All other results were negative. As the committee learned at the January 2011 meeting, there were no tests done on remains from any of the other September 11, 2001 hijackers. [my emphasis]

So let’s see. At some point during the anthrax attacks in 2001, USAMRID and AFIP decided to do anthrax tests on material from Flight 93. They purportedly  found the hijackers tested positive for anthrax! But on second thought, FBI tells us, that positive result came from “lab contamination.” And then, presumably just after those tests, USAMRID and AFIP, perhaps working outside the chain of the official FBI investigation of anthrax, discover evidence implicating Iraq in the anthrax attacks. Results that, once again, further testing suggested was inaccurate.

Another example of lab contamination, I guess. Funny how that happens.

And the FBI wants us to believe that over the course of a 9 year investigation, they never decided to investigate the circumstances surrounding this partnership that somehow always resulted in convenient propaganda?

War, Intelligence, Law and Forever

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There are a number of oddly coinciding legal issues that I wanted to pull together into one post.

The Administration Fudges the War Powers Act

First and most obviously, today is the day the 60-day grace period for Libya under the War Powers Act expires. Obama should, by law, have to go to Congress to get sanction for our third war against a Muslim country.

Mind you, Congress isn’t going to make the President do that.

But just to be safe, the Administration is going to conduct some kind of legal hocus pocus to make sure it can claim it isn’t violating the WPA.

A variety of Pentagon and military officials said the issue was in the hands of lawyers, not commanders. Several officials described a few of the ideas under consideration.

One concept being discussed is for the United States to halt the use of its Predator drones in attacking targets in Libya, and restrict them solely to a role gathering surveillance over targets.

Over recent weeks, the Predators have been the only American weapon actually firing on ground targets, although many aircraft are assisting in refueling, intelligence gathering and electronic jamming.

By ending all strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.

Another idea is for the United States to order a complete — but temporary — halt to all of its efforts in the Libya mission. Some lawyers make the case that, after a complete pause, the United States could rejoin the mission with a new 60-day clock.

My money, given the way that the OLC wrote a memo retroactively justifying the first several weeks of the war that culminated with us ceding control to NATO (and for other reasons), is that we’ll choose option A; we’ll pretend that we’re just conducting a very expensive unfunded intelligence operation in support of our NATO allies and call that good.

Congress Tries to Force Obama to Fight the Forever Whereever War

Then there’s the Republicans efforts to rewrite the AUMF in the spending bill, which would make it a lot easier to pass without a lot of debate and certainly without concerted attention to it. Ben Wittes has been orchestrating a debate on this topic over at Lawfare (here, here, here, here, here, here, and here).

There are a couple of elements to this. First, the belief by both the right and left that the Administration has already exceeded the terms of the Afghan AUMF by striking at groups that either didn’t exist in 2001 or didn’t support the 9/11 attacks. If we’re right, it would mean such things as drone strikes in Yemen are legally questionable. And for those who believe we must use drones in Yemen and Somalia, it seems clear we must rewrite or expand the AUMF to incorporate these new targets.

In addition, there’s the question of detention. I believe that we are close to sufficiently achieving the objectives in the 2001 AUMF that it might require Obama to base the detention of Gitmo detainees on something more permanent. McKeon would like to institutionalize Obama’s preferred indefinite detention, but by endorsing detention going forward, might invite further indefinite detention.

There are probably some other things our government is doing under the guise of war that we don’t know about (but that McKeon presumably does and endorses).

But for the moment, let’s assume that the forever whereever war authorizes the President to continue to make up the rules of this war as he goes forward, with no defined end point.

And, as Adam Serwer implies, McKeon is doing this not via free-standing statute (which is what he first tried), but on the spending bill, making it much harder to oppose.

But the country never made that decision–the country made the decision to go to war against the perpetrators of the 9/11 attacks. That’s why I think that this new AUMF shouldn’t be something that gets tucked into a spending bill–it’s the kind of thing that the American people need to consider carefully. I suspect public opinion is probably on McKeon’s side here, but at the very least, a separate vote on a new AUMF would have the advantage of sanctioning this larger conflict in a more public and accountable manner. More importantly, we could be having a conversation of what the end of the “war on terror” is supposed to look like.

This is, in other words, the head of the House Armed Services Committee acting where he has greatest powers, in mapping out how DOD can spend money, to institutionalize the authority of the President to evolve the terms of the war against terrorists as he goes on.

PATRIOT without Sunset

At the same time as one corner of Congress is acting at the area of its strength, another corner of Congress is acting with typical cowardice. John Boehner, Mitch McConnell, and Harry Reid are pushing a vote on Monday to extend the PATRIOT Act another 4 years, until June 1, 2015.

Mind you, it might not be just their idea. This is the kind of thing Obama might encourage (though the Administration reportedly backed some, but not all, reforms on the table). This is a way for everyone involved–except for the liberals and handful of TeaParty candidates who will oppose the bill–to just endorse the status quo rather than acknowledge that PATRIOT has some real problems as well as some unnecessary authorities.

And so, with each new extension of a PATRIOT sunset, the myth that it actually will ever sunset gets weaker and weaker.

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Did the Administration’s Own Propensity for Leaks Crash the SEAL’s Blackhawk?

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The AP has an astoundingly detailed description of the raid on Osama bin Laden’s compound. It describes the kinds of aircraft used, the minutes spent completing each part of the task, and even explained that the Geronimo name just served to indicate that the SEALs had reached stage “G” of the mission.

It also includes two details that, when considered together, suggests the troubling possibility that potential Administration leaks put the operation in danger.

First, the story explains that the mission was launched the night it was because too many people had been briefed on it and people were worried about leaks.

The decision to launch on that particular moonless night in May came largely because too many American officials had been briefed on the plan. U.S. officials feared if it leaked to the press, bin Laden would disappear for another decade.

That is, the Administration launched the mission on the night they did not because it presented optimal conditions, but because they (or CIA or DOD) worried that someone would actually leak advance details to the press of one of the most sensitive missions of the last decade. (I can’t remember who it was, but I have this vague memory of one reporter describing the raid after Obama’s announcement of it referencing a discussion of it that had taken place the previous morning, so before it happened. I thought at the time that it’d be weird for the Administration to do an advance briefing on this operation. If my memory is right on this count, it means advance news of the operation did leak to the press.)

Later in the article, the AP provides a description of why one of the two Black Hawks went down (and how that made them deviate from their planned stealth approach on the compound). The key factor, the AP notes, was the unexpectedly hot temperature, which thinned the air and made the chopper more difficult to maneuver.

The Black Hawks were specially engineered to muffle the tail rotor and engine sound, two officials said. The added weight of the stealth technology meant cargo was calculated to the ounce, with weather factored in. The night of the mission, it was hotter than expected.

[snip]

The plan unraveled as the first helicopter tried to hover over the compound. The Black Hawk skittered around uncontrollably in the heat-thinned air, forcing the pilot to land. As he did, the tail and rotor got caught on one of the compound’s 12-foot walls. The pilot quickly buried the aircraft’s nose in the dirt to keep it from tipping over, and the SEALs clambered out into an outer courtyard.

Now, it may be there’s no connection between the Administration’s worry about leaks and the decision to launch the mission even though temperatures put the helicopters at risk. It may be that SEALs measure cargo down to the ounce but don’t bother to schedule around volatile spring weather.

But these two details make one thing clear: the mission was launched on a less than optimal night. And it was launched when it was because the Administration worried about impending leaks.

And even if there’s not a connection between the too-hot night and the imperative to launch when they did to pre-empt any leaks, the implication remains. The Administration suspected someone within the too-large but presumably very limited circle of people briefed on this raid either had already leaked or would leak this information to the press. The Administration believed someone in that tight circle might compromise operational security of a tremendously sensitive and dangerous mission.

Why isn’t that person–rather than Thomas Drake–awaiting trial?

The Feds Now Complaining about Thin Terrorist Indictments

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Tell me if this sounds familiar: You’ve got a long undercover investigation of a young Muslim man. It ends in the man acting to get what turns out to be an inert bomb. And there seem to be problems with the undercover work in the investigation.

It sounds like the case of Mohamed Mohamud, right?

Well, in many respects it is just like the case of Mohamed Mohamud. Except, unlike the Mohamud investigation, the FBI suggests this one–of Ahmed Ferhani and Mohamed Mamdouh for allegedly conspiring to target synagogues–is flimsy.

WNYC has learned the lack of Federal participation in the high-profile case of two Queens men allegedly involved in a plot to blow up New York City synagogues and churches was related to concerns it was not a bona fide terrorism case.

Two Federal law enforcement sources, who spoke on condition of anonymity because they were not authorized to speak publicly, said the FBI did not take the case of the two alleged Queens terrorists because the undercover operation was problematic and the end result was being over-hyped. They also expressed concern the case would ultimately not hold up in court as terrorism case. “Should guys that want to buy guns be off the street, absolutely,” one of the Federal officials said.

[snip]

At the press conference announcing the arrests of Ahmed Ferhani and Mohamed Mamdouh, local officials said the FBI’s Joint Terrorism Task Force had the right of first refusal on all terrorism cases, but had opted out of this one. Officials characterized the case as one involving a “pair of lone wolves” who were not part of a broader global terrorism conspiracy.

This is the same FBI that tried to hide its first contacts with an accused attempted bomber, set up all the details of his alleged plot, and made darn sure he never had a real bomb. In other words, the FBI that insists its Mohamud indictment is completely legitimate. But I guess when you’re in a pissing match with the NYPD, standards for serious investigations or not suddenly change?

9/11 Commission Redux

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Spencer had a superb idea:

I don’t pretend that anything will produce an end to this new debate over torture. The fact that we’re debating torture diminishes our standing as a civilization. But moving beyond it: perhaps, after the actionable intelligence is drained from the bin Laden documents, it would be useful to reconvene the 9/11 Commission and have them review the ten-year hunt for bin Laden. It’s not helpful for something that looked like a failure on May 1 to be retconned into an inevitable, inexorable success. The tale of the bin Laden hunt — and the lessons to learn from it — is the logical final chapter of the  2004 report. And the gravitas of the 9/11 Commission, delivered through a public report, would create the closest thing possible to a narrative that can stand proudly before history.

And it would work not just for torture (though, given that the 9/11 Commission had doubts about the KSM interrogations they were reading in real time in 2003, I suspect we know what they’d conclude).

In addition to assessing whether torture, skilled interrogation by al Qaeda experts, or something else worked, the Commission could also review whether dragnet illegal wiretapping or targeted, legal wiretapping worked better; whether human missions or drones did; whether ground wars or smaller responses worked better (particularly when the ground war had nothing to do with terrorism). The Commission could develop a sense of where our counterterrorist investments paid off, and what served primarily to enrich contractors. Whether it makes sense to feel up cancer survivors at TSA gates, or whether the human screening already in place works better.

And, because we’re about due, the Commission can repeat all the non-nonsense recommendations it made 7 years ago (like scans of shipping containers) that the government refuses to put in place.

I’ve said we need a pause to figure out what has worked and what hasn’t. A 9/11 Commission 2.0 would work well for this.