John Bellinger: If the War Is Illegal, Just Change the Law

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John Bellinger has been publicly suggesting the Obama Administration had exceeded the terms of the AUMF for some time. So it is unsurprising that he took the opportunity of a Republican House, the incoming Armed Services Chair’s explicit support for a new AUMF, and the Ghailani verdict to more fully develop his argument in an op-ed. It’s a well-crafted op-ed, such as in the way it avoids explicitly saying the government has been breaking the law in its pursuit of terrorism, when he pretends the only people we’ve been targeting in Pakistan, Yemen, and Somalia are al Qaeda leaders.

The Bush and Obama administrations have relied on this authority to wage the ground war in Afghanistan; to exert lethal force (including drone strikes) against al-Qaeda leaders in Pakistan, Yemen and Somalia; and to detain suspected al-Qaeda and Taliban members in Guantanamo Bay, Cuba, and Afghanistan.

In fact, the targets include a heck of a lot of grunts and many people with terrorist ties, but not direct affiliation with al Qaeda. Oh, and a bunch of civilians, but I guess we’re to assume the government just has bad aim.

Then there’s this game attempt to pretend that everyone will find something to love in the Forever War.

Nearly 10 years after the Sept. 11 attacks, the Obama administration, congressional Republicans and Democrats, and civil liberties groups all have an interest in updating this aging legislation. Republicans should be willing to help the president ensure that combatant commanders and intelligence agencies have ample legal authority to kill or capture terrorists who threaten the United States today. Many Republicans also want to give clearer statutory direction to federal judges regarding who may be detained and for how long. For their part, civil liberties groups and their Democratic supporters in Congress can insist that terrorist suspects who are U.S. nationals receive additional protections before being targeted and that persons detained now or in the future under the laws of war have a right to adequate administrative or judicial review.

As if Republicans weren’t already clamoring for more war and more war powers. As if there would be any doubt that Republicans would answer the “who may be detained and for how long” with any answer but, “Forever War, Baby!” As if dubbing the new AUMF “the al-Awlaki and PETA law”–putting some limits on the targeting of American citizens that presumably already exist–would be enough to entice civil libertarians (whom, Bellinger seems to suggest, only have support among Democrats).

And did you notice how Bellinger slipped in giving intelligence agencies the legal authority to kill terrorists? One of the problems–though Bellinger doesn’t say this explicitly–is that we’re increasingly using non-military personnel to target drones, which raises legal questions about whether they’re not unprivileged combatants in the same way al Qaeda is.

In any case, the lawyer did his work on this op-ed.

But here’s what I find to be the most interesting detail in it:

For at least five years, lawyers in and outside the Bush and Obama administrations have recognized the need to replace this act with a clearer law. The Bush administration chose not to seek an update because it did not want to work with the legislative branch.

Which I translate to read, “Back in 2005, several lawyers in the Bush Administration and I [I’m assuming Comey and Zelikow and Matthew Waxman] told the President he was breaking the law and should ask for an updated AUMF. But in spite of the fact that Congress was at that very moment passing the Detainee Treatment Act, the Bush White House claimed it couldn’t work with Congress to rewrite the AUMF to try to give the war they were already fighting some legal cover.”

Though of course, in 2005, Bush’s lawyers may have been trying to pretty up the fact that their illegal wiretap program–which constituted the use of military powers within the United States against US citizens–some kind of pretty face before it was exposed.

We’ve been fighting the Forever Whoever War since at least 2005. And now this clever lawyer wants to make sure the Forever War is legally sanctioned for the foreseeable future.

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Ahmed Ghailani Guilty of Conspiracy, But Not Murder

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The jury in Ahmed Khalfan Ghailani’s trial for his role in the 1998 embassy bombings has found him guilty of conspiracy, but not the charges of terrorism he was accused of. With the one count, however, he may still face a life sentence.

It appears likely that just one juror voted against the other charges against Ghailani. Earlier in the week, a juror wrote the judge that she was being attacked by other jurors, asking to be dismissed because her views on the charges would not change. Then, earlier today, the jurors asked the judge to explain the conspiracy charge that Ghailani was ultimately convicted of. So it appears that juror did ultimately vote for the conspiracy charge.

There will be a lot of incredulity about the fact that Ghailani was not found guilty of the other charges. In particular, people will suggest that had Hussein Abebe been permitted to testify that he had sold the explosive to Ghailani used in the attack, then he would have been found guilty on all charges.

But aside from second-guessing the trial result, there’s a problem with that: Judge Lewis Kaplan strongly suggested that he refused to let Abebe testify not just because prosecutors wouldn’t have found him if it weren’t for the torture-induced confession of Ghailani, but also because Abebe himself was coerced to give the testimony he did. Which means we couldn’t know whether his testimony had been shaded to reflect what those coercing him to testify wanted him to say.

All of which debate of course distracts from the larger point: yet another terrorist–a big one, if you believe the government–has been convicted in a civilian trial.

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We Will Always Be at War against Everyone

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As Spencer reported yesterday, the incoming Chair of the House Armed Services Committee Buck McKeon wants to revisit and expand the 2001 AUMF authorizing our war against al Qaeda.

The objective wouldn’t the “drop a new Authorization to Use Military Force, but to reaffirm and strengthen the existing one,” says an aide to McKeon who requested anonymity, “recognizing that the enemy has changed geographically and evolved since 2001.”

I’m thoroughly unsurprised by this. As I pointed out the other day, if we’re going to hold Khalid Sheikh Mohammed solely using the justification of the AUMF, then we’re going to want to make sure that AUMF is designed to last forever; otherwise, KSM would be entitled to get out when–for example–we withdraw from Afghanistan. Frankly, I expect the Administration will be happy to be forced to accept another AUMF, because it’ll get them out of some really terrible arguments they’ve been making as they try to apply the AUMF to detention situations it clearly doesn’t apply to.

But there are two other aspects to a “reaffirmed and strengthened” AUMF. As McKeon’s aide notes, the enemy has changed geographically, moving to Yemen and Somalia. A new AUMF will make it easier to build the new bases in Yemen they’re planning.

The U.S. is preparing for an expanded campaign against al Qaeda in Yemen, mobilizing military and intelligence resources to enable Yemeni and American strikes and drawing up a longer-term proposal to establish Yemeni bases in remote areas where militants operate.

And I would bet that the AUMF is drafted broadly enough to allow drone strikes anywhere the government decides it sees a terrorist.

Which brings us to the most insidious part of a call for a new AUMF: the “homeland.” The AUMF serves or has served as the basis for the government’s expanded powers in the US, to do things like wiretap Americans. Now that the Republicans know all the powers the government might want to use against US persons domestically, do you really think they will resist the opportunity to write those powers into an AUMF (whether through vagueness or specificity), so as to avoid the quadrennial review and debate over the PATRIOT Act (not to mention the oversight currently exercised by DOJ’s Inspector General)? The only matter of suspense, for me, is what role they specify for drones operating domestically…

Remember, John Yoo once wrote an OLC memo claiming that because of the nature of this war the military could operate in the US with no limitations by the Fourth Amendment. That memo remained in effect for seven years. We know where they want to go with this permanent war against terror.

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DOJ IG Doesn’t List Foreclosure Fraud among Significant Performance Challenges

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A month ago, the Financial Fraud Task Force first started to get around to investigating the systemic fraud in our foreclosure system.

Federal investigators are exploring whether banks and other financial firms broke U.S. law when using fraudulent court documents to foreclose on people’s homes, according to sources familiar with the effort.

The criminal investigation, still in its early days, is focused on whether companies misled federal housing agencies that now insure a large share of U.S. home loans, and whether the firms committed wire or mail fraud in filing false paperwork.

The announcement was tied to a Shaun Donovan announcement that a HUD investigation started in May had identified problems from some mortgage servicers; HUD is a member of the Financial Fraud Task Force.

Donovan said the administration had yet to complete its review, which began in May. Thus far, though, it had found “significant difference in the performance of servicers, and in particular, information that shows us there is not compliance with FHA rules and regulations around loss mitigation.” Donovan said the findings were limited to firms that deal with FHA loans. He declined to single out servicers.

All of which would seem to suggest that HUD–and therefore the Financial Fraud Task Force–knows there’s some there there (though they deny it is systemic).

Which is why I find it rather troubling that, two months after it became clear foreclosure mills and servicers are engaging in rampant fraud, DOJ’s Inspector General Glenn Fine does not specify it among the significant performance challenges for the year (Financial Crimes generally places seventh on his list of issues, after IT planning and violent crime, the latter of which is falling).

7 Financial Crimes and Cyber Crimes: The need to aggressively combat financial crimes and cyber crimes is an increasing challenge for the Department. Financial fraud continues to affect the economy, and the increased use of computers and the Internet in furtherance of financial crimes, as well as the international scope of these criminal activities, has exacerbated the challenge of cyber crime.

In November 2009, a presidential Executive Order created the Financial Fraud Enforcement Task Force (Task Force). The Department described the Task Force as the “cornerstone” of its work in the financial fraud area. Led by the Department, the Task Force combines the work of several agencies to focus on mortgage crime, securities fraud, American Recovery and Reinvestment Act (Recovery Act) and rescue fraud, and financial discrimination.

In connection with the Task Force the Department launched Operation Stolen Dreams, a multi-agency initiative designed to combat mortgage fraud. In June 2010 the Department reported that this operation involved the prosecution of 1,215 criminal defendants nationwide who allegedly were responsible for more than $2.3 billion in losses. The Department also reported that the operation recovered more than $147 million through 191 civil enforcement actions.

The Department and the Task Force are also focusing investigative resources on securities fraud as well as on Recovery Act fraud and fraud in other rescue funds. Among other things, the Department is providing training to federal grantees and contractors on ways to prevent and detect such fraud.

Note that Operation Stolen Dreams is focused on the small-scale thugs that pumped up housing prices. That’s apparently a priority. But Fine, at least, seems to think an investigation into the GMACs and BoAs, the David Sterns and Lender Processing Services, is not a priority.

He may well be right in that DOJ doesn’t consider this a top challenge. So while counterterrorism is number one–based partly on two unsuccessful attacks launched by losers in the last year–the wholescale assault on our economy is apparently not even part of number seven.

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Letter to DOJ and John Durham Re: Torture Tape Crimes Expiring

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As you may know, in early November of 2005, agents of the United States government destroyed at least ninety two videotapes containing direct evidence of the interrogation and, upon admission and belief, torture of Abu Zubaydah and Abd al-Rahim al-Nashiri (see: here, here, here, here and here). The statute of limitations, for the criminal destruction of said taped evidence in the cases of Abu Zubaydah and al-Nashiri will expire on Sunday November 7 (since the last day falls on a weekend, the statute should maintain through the next business day, which is Monday November 8). As we have heard absolutely nothing from Eric Holder, John Durham, the DOJ or the Obama Administration in relation to indictments or other results of the investigation Mr. Durham has been conducting since January 8, 2008, nearly three years, I thought a letter was in order asking just exactly what their status was. Said letter was addressed to Dean Boyd and Tracy Schmaler, official representatives and spokesmen for the Department of Justice, and reads as follows:

Dean and Tracy,

As I believe you are already aware, the statute of limitation on criminal charges including, notably, obstruction of justice for the destruction of evidence, are about to expire. The destruction appears to have occurred on or about November 8, 2005 and there is a five year statute on most all of the general crimes that could possibly be under investigation by John Durham. No competent prosecutor would have waited this long to file charges if he intended to do so, but there are still a couple of days left; what is the status?

Secondly, I would like to point out that should you be thinking about relying on some rhetoric that Mr. Durham simply cannot find any crimes to prosecute and/or that there were no proceedings obstructed, it is intellectually and legally impossible to not consider the tapes to be evidence, and as they almost certainly exhibit torture to some degree and to some part they would almost certainly be exculpatory evidence, in the cases of Abu Zubaydah and al-Nashiri themselves. The United States government continues to detain these individuals and they have charges that will putatively be brought against them in some forum (civil or tribunal), Habeas rights and/or indefinite detention review processes that will occur in the future.

In short, there exist not just the potential, but the necessity, of future proceedings, and agents of, or on behalf of, the United States government have destroyed material, and almost certainly exculpatory, evidence. Crimes have been committed. At a bare root minimum, it is crystal clear Jose Rodriquez has clear criminal liability; there are, without question, others culpable too. What is the status?

If the DOJ does not intend to proceed in any fashion on these clear crimes, please provide me with some intellectually consistent explanation for why the US government is covering up, and refusing to prosecute, the criminal acts of its own employees and agents.

Thank you.

bmaz

emptywheel.com

If there is any worthwhile or meaningful response, I will advise.

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The Boys of War

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One more boy got dragged into the horror of our country’s war on terror today: Tanner Speer, the 8 or 9 year old son of Christopher Speer, whose death Omar Khadr confessed to. Tanner’s mother read a note the boy wrote for (I think) Memorial Day.

“Omar Khadr should go to jail because of the open hole he made in my family,” wrote Tanner. “Army rocks. Bad guys stink.”

Shortly thereafter, Khadr made an unsworn statement, confessing to killing Speer, but spending time too talking about his biggest dream, to get out of Gitmo, describing how he wanted to be a doctor to help heal the pain of others. He turned to Speer’s widow and apologized for the pain he caused her family; the widow shook her head no in response.

“I’m really, really sorry for the pain I’ve caused you and your family. I wish I could do something that would take this pain away from you,” he said, standing in the witness box and looking at the widow of U.S. Delta Force soldier Christopher Speer.

Also today, Josh Rogin got a copy of the memo the State Department wrote explaining why the US needed to tolerate Yemen’s recruitment of 15 year old boys–the same age Khadr was when we captured him.

Imposing the section 404(a) prohibition against Yemen at this time would harm the cooperative relationship we have begun to rebuild with Yemen at a pivotal point in the fight against terrorism and have a negative impact on U.S. national security.

[snip]

Cutting off assistance would seriously jeopardize the Yemeni Government’s capability to conduct special operations and counterterrorism missions, and create a dangerous level of instability in the country and the region.

It’s not enough for the Speers apparently, for Khadr to apologize. Because that won’t fix the hole in the Speer family.

I believe that, and I am sorry for their loss.

But these boys conscripted by all sides into the war on terror are not the ones putting the holes in families.

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“Profound Equities with Yemen in Terms of Counter-Terrorism” Justify Child Soldiers?

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As the prosecutors in Omar Khadr’s sentencing hearing try to undercut the testimony of a defense witness who believes Khadr can be rehabilitated, not least because of his age, an anonymous White House official justifies to Josh Rogin Obama’s decision to undercut a law prohibiting the government from funding countries that use child soldiers.

As I suspected, the Administration rationale for exempting Yemen from sanction explicitly has to do with our counter-terrorism efforts there.

Yemen is a recipient of significant direct U.S. military assistance, having received $155 million in fiscal 2010 with a possible $1.2 billion coming over the next five years. Yemen is also a much needed ally for counterterrorism operations. The government is engaged in a bloody fight with al Qaeda (among other separatist and terrorist groups), and estimates put the ratio of child soldiers among all the groups there at more than half. Nevertheless, “the president believes there are profound equities with Yemen in terms of counterterrorism that we need to continue to work on,” the official told The Cable.

It’s bad enough that our assistance in Yemen will contribute to a war in which half the soldiers are boys.

But I really am saddened by the coincidence in this timing. At this very moment, we’re going to great lengths in Gitmo to villainize Khadr, at least partly to dismiss all the criticism about trying a child soldier (for a crime that is not a crime). It’s as if those involved are trying to convince themselves that their war on terror trumps international norms of decency.

And even as we’re doing that, the President is taking affirmative steps to make it more likely that another boy, like Khadr, will be put in the same situation as him, attacked for following the orders of the adults around him.

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The Logical Outcome of Juan Williams’ Legitimization of Irrational Fears

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As Adam Serwer noted, a family apparently dressed in Muslim garb was removed from a plane and questioned by the FBI today.

Some cannot help but think their appearance had something to do with a family’s removal from a plane Tuesday morning at Memphis International Airport.

“My understanding is they were dressed in attire that would indicate some Muslim-type religion,” said airport vice-president Scott Brockman.

[snip]

“The family was asked to leave the aircraft, which they did peacefully,” said Brockman.  “At that point, the aircraft was inspected and cleared,” he added.

A bomb-sniffing dog and other measures resulted in a two-hour delay.  The family was placed on a later flight following an interview with the FBI.

Thanks to Juan Williams’ legitimization of this kind of irrational response, I guess people dressed in religious garb no longer can pee in crappy airplane bathrooms without expecting to be detained by the FBI.

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The Same Day US Gets Guilty Plea from Child Soldier, It Exempts Yemen and Others from Restrictions on Using Child Soldiers

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The asshole in charge of shredding our Constitution has a really sick sense of humor. Yesterday, the same day the government got Omar Khadr to plead guilty to crimes that aren’t crimes that occurred when he was a child, Obama issued this memorandum.

By the authority vested in me as President by the Constitution and the laws of the United States of America, pursuant to section 404(c) of the Child Soldiers Prevention Act of 2008 (CSPA), title IV of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Public Law 110 457), I hereby determine that it is in the national interest of the United States to waive the application to Chad, the Democratic Republic of the Congo, Sudan, and Yemen of the prohibition in section 404(a) of the CSPA.

This memo appears to waive the following restriction, thereby allowing the US to fund operations with or make weapons sales to Chad, DRC, Sudan, and Yemen, even though the State Department has reason to believe they use child soldiers.

(a) In General- Subject to subsections (c), (d), and (e), none of the funds appropriated or otherwise made available for international military education and training, foreign military financing, or the transfer of excess defense articles under section 116 or 502B of the Foreign Assistance Act of 1961 (22 U.S.C. 2151n(f) and 2304(h)), the Arms Export Control Act (22 U.S.C. 2751), the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008 (division J of Public Law 110-161) or under any other Act making appropriations for foreign operations, export financing, and related programs may be obligated or otherwise made available, and no licenses for direct commercial sales of military equipment may be issued to the government of a country that is clearly identified, in the Department of State’s Country Report on Human Rights Practices for the most recent year preceding the fiscal year in which the appropriated funds, transfer, or license, would have been used or issued in the absence of a violation of this title, as having governmental armed forces or government-supported armed groups, including paramilitaries, militias, or civil defense forces, that recruit and use child soldiers.

So, one of the side benefits of Yemen’s cooperation with us on the war on terror is that it can conscript those under 18 and accept as volunteers those under 16 in its military.

This hopey changey thing is really beginning to overwhelm me.

Update: the State Department Report on Yemen last year described this use of child soldiers:

Reports of child soldiers increased in a number of armed conflicts across the country. According to the NGO Small Arms Survey, direct involvement in combat killed or injured hundreds of children annually.

The intermittent conflict in Saada, which began again in August, reportedly drew underage soldiers fighting for the government and the rebel Houthis (see section 1.g.). The Houthis reportedly used children as runners in between groups of fighters as well as to carry supplies and explosives, according to local children’s rights NGO Seyaj. Tribes the government armed and financed to fight alongside the regular army used children younger than 18 in combat, according to reports by international NGOs such as Save the Children.

Married boys, ages 12 to 15 years, were reportedly involved in armed conflict beginning in November 2008 in Amran governorate between the Harf Sufian and al-Osaimat tribes. According to tribal custom, boys who married were considered adults who owed allegiance to the tribe. As a result, half of the tribal fighters in such conflicts were children who had volunteered to demonstrate their tribal allegiance.

It also described the sex trafficking in girls.

There were reports of underage internal sex trafficking during the year. According to a local human rights NGO, an unknown number of women were trafficked from their homes to other regions within the country for the purposes of prostitution.

Though the report says most sex slaves worked in hotels, casinos, and nightclubs, if any of them were used by the armed forces, they would also count as child soldiers.

Update: See this exchange between harpie and powwow, who were discussing this earlier this month.

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Juan Williams’ Irrational Fear of Non-Terrorists

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I’m happy to see Juan Williams and his crappy analysis gone from NPR. But the whole ruckus over Juan Williams’ firing from NPR over his admission that he does a double take when he sees people dressed in obviously Muslim garb is missing a key point.

Williams says he gets anxious when he sees people in Muslim garb.

WILLIAMS: Wednesday afternoon, I got a message on my cell phone from Ellen Weiss who is the head of news at NPR asking me to call. When I called back, she said, “What did you say, what did you mean to say?” And I said, “I said what I meant to say” which is that it’s an honest experience that went on in an airport and I see people who are in Muslim garb who identify themselves as first and foremost as Muslims, I do a double take. I have a moment of anxiety or fear given what happened on 9/11. That’s just a reality. And she went on to say, “Well that crosses the line.” And I said, “What line is that?”

And she went on to somehow suggest that I had made a bigoted statement. And I said “that’s not a bigoted statement. In fact, in the course of this conversation with O’Reilly, I said that we have as Americans an obligation to protect constitutional rights of everyone in the country and to make sure we don’t have any outbreak of bigotry but that there’s a reality. You cannot ignore what happened on 9/11 and you cannot ignore the connection to Islamic radicalism and you can’t ignore the fact that what has been recently said in court with regard to this is the first drop of blood in a Muslim war on America. [my emphasis]

Of course, the “reality” that Williams is missing is that when Islamic terrorists get onto planes to try to blow them up, they don’t dress in Muslim garb. On the contrary, we know that Islamic terrorists make sure they appear as “normal” as possible by shaving and dressing as mainstream Americans would. Moreover, Islamic terrorists are increasingly recruiting people who look like westerners.

The last people you should be afraid of on a plane are those self-identifying by their dress as Muslims.

Maybe this is a side-effect of hanging out at with the stupid people and bigots at Fox News for so many years, this really irrational sense of what we should fear. But no matter whether you consider Williams’ statement itself bigoted or not, it is undeniably stupid. Really stupid. And on that basis alone, NPR is justified in firing Williams.

Update: George Stephanopoulos asks Williams whether he should have admitted he was being irrational.

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