OLC Memo as Time Machine

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I’m going to have more to say about the Libya memo the Administration released yesterday. But I just wanted to point out something about the structure of it.

Here’s the first paragraph:

This memorandum memorializes advice this Office provided to you, prior to the commencement of recent United States military operations in Libya, regarding the President’s legal authority to conduct such operations. For the reasons explained below, we concluded that the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest. We also advised that prior congressional approval was not constitutionally required to use military force in the limited operations under consideration. [my emphasis]

This is not the advice authorizing the Libyan engagement. Rather, it is a document written the day after–the memo notes–the Administration turned over control to NATO, claiming to memorialize the advice given before the Libyan engagement (therefore, presumably, before March 19).

Is this all the advice OLC gave the President? Did OLC authorize further activities? Did Obama’s description of why bombing Libya was in the national interest before March 19 match what appears in this memo, written after the fact?

This fundamental structural reality is all the more striking given the role of Section I of the memo: it provides a narrative of the Libyan engagement starting in mid-February and leading right up to the March 31 turnover of control to NATO. In other words, a key function of this memo is to provide the Administration’s own mini-history of the Libyan engagement, written the day after an artificial “end date” for the engagement, which it uses to lay out the national interest of bombing Libya and the limits to our engagement in it that the memo says justify the engagement. Two key elements in this history–Obama’s address to Congress on March 21 and his address to the nation on March 28–took place after the real advice OLC offered Obama to authorize this engagement.

But the memo claims to have offered its advice before the start of the bombing. It is basically using Presidential statements made up to 9 days after the advice it gave to “memorialize” the advice it gave 9 days earlier. The memo uses limits Obama described after the advice was actually given to claim the advice itself had limits.

I’m envisioning a discussion like this:

Bob Bauer: Caroline, can you give us a verbal okay for this engagement?

Caroline Krass: Do you want a written memo?

Bauer: Not yet. Let’s wait until it’s all done so we can tailor the legal authorization of it to what we really end up doing. It’ll make it easier for us to thread the needle between authorizing what we do while still claiming to believe Executive Power is limited.

Krass: Okay, Bob.

Pretty remarkable, isn’t it, the way a memo written after the fact authorizes precisely the engagement that Obama ultimately used, all the while highlighting limits to the use of unilateral presidential power?

One Way to Make Sending Frank Wisner to “Negotiate” with Mubarak Look Smart

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CNN is reporting that Curt Weldon, the ethically and legally challenged former Congressman with ties to Manucher Ghorbanifar, has gone to Libya to try to negotiate with Muammar Qaddafi. In a NYT op-ed, Weldon makes the case for why he’s the guy to persuade Qaddafi to step aside.

Seven years later I am back in Libya, this time on a much different mission, as the leader of a small private delegation, at the invitation of Colonel Qaddafi‘s chief of staff and with the knowledge of the Obama administration and members of Congress from both parties. Our purpose is to meet with Colonel Qaddafi today and persuade him to step aside.

[snip]

First, we must engage face-to-face with Colonel Qaddafi and persuade him to leave, as my delegation hopes to do. I’ve met him enough times to know that it will be very hard to simply bomb him into submission.

Simultaneously, we must obtain an immediate United Nations-monitored cease-fire, with the Libyan Army withdrawing from contested cities and rebel forces ending attempts to advance.

Then we must identify and engage with those leaders who, if not perfect, are pragmatic and reform-minded and thus best positioned to lead the country.

[snip]

The world agrees that Colonel Qaddafi must go, even though no one has a plan, a foundation for civil society has not been constructed and we are not even sure whom we should trust. But in the meantime, the people of Libya deserve more than bombs. [my emphasis]

Noah Shachtman elaborates on the history Weldon and Qaddafi have in common. The short version? At a time when Weldon served on Qaddafi’s “foundation,” he was pitching selling arms to him.

It wasn’t long ago — April, 2008, to be exact — that Weldon was boasting in a report that he had become the “1st non-Libyan Board Member of the Ghadaffi Foundation.” During a trip to Tripoli the month before, the self-proclaimed “friend of Libya” carried “a personal letter from Libyan Chamber [of Commerce] President to U.S. Chamber President.” Weldon also visited with with the country’s “Nuclear Ministry Leadership and agreed to reinforce U.S. nuclear cooperation/collaboration.”

Finally, Weldon agreed “to quickly return to Libya for meetings with [Gadhafi’s] son Morti regarding defense and security cooperation.”

Two weeks later, Defense Solutions — a company which, at the time, counted Weldon as a key executive and adviser — drew up a proposal to refurbish the country’s fleet of armored vehicles, including its T-72 tanks, BMP-1 infantry fighting vehicles and BTR-60 armored personnel carriers.

Now, granted, Weldon says he is undertaking this trip with the knowledge–not the endorsement–of the Obama Administration. Still, I can’t help but wondering whether this is an elaborate plot (with Weldon, there’s always a plot) to make Obama’s decision to send Frank Wisner–also a business associate–to negotiate with Hosni Mubarak look remarkably smart by comparison. After all, both Wisner and Weldon have troubling conflicts that make them poor choices to represent our country’s interests. But Wisner, at least, is diplomatic and sane. Weldon? I’m not so sure.

Chasing Humanitarian Organizations Out of Afghanistan

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At first, when I read this story describing how Hamid Karzai’s government is insisting that a bunch of security contractors pay back taxes before he’ll recertify them to work in Afghanistan, I though it was just out of a desire to get rid of contractors.

The Afghan government issued its unexpected tax demand last month, at the same time it made all current security company licenses expire. The assessed taxes are in some cases higher than several years’ worth of operating profits for the companies.

“It’s not feasible for us to pay such a large bill. We wouldn’t be able to continue to operate here,” one security company official in Kabul said.

Until the companies pay the back taxes, they cannot apply for new security licenses or weapons permits, throwing their legal status in limbo and leaving them ineligible to bid on new contracts to protect diplomatic missions or government development projects.

But I think it may be even more complex than that.

Consider the reports of Karzai’s role in calling attention to Terry Jones’ Koran-burning, which in turn led to the attacks on the UN compound in Mazar-e-Sharif.

But many U.S. and other Western officials in Afghanistan say Karzai has played a more damaging role. They say that his initial statement condemning Jones four days after the March 20 Koran burning was provocative and that it informed many Afghans of an event that was not widely known and helped mobilize public anger toward the United States.

Throughout the crisis, Karzai has repeatedly pushed the issue, calling for Jones’s prosecution, even though the burning of holy books is not a crime in the United States, and for Congress to join in his condemnation.

As soon as Karzai issued his initial public condemnation, said one NATO official in Kabul, “you knew that this could really be bad.”

Consider, too, how revelations about the role Kabul Bank had in the Karzai government’s “vertically integrated criminal enterprise” has made donors pause before dumping more money into the corrupt cesspit.

The International Monetary Fund and a number of Western diplomats believe that the wrongdoers must be held to account in order to restore Afghans’ faith in the banking system, including criminal prosecutions. However, it is unclear that the government is committed to that level of public scrutiny of those close to the presidential palace. Read more →

Wingnut Pastor’s Koran-Burning Gets UN Staffers Killed

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This is horrible.

Protesters angered by the burning of a Koran by a fringe American pastor in Florida mobbed offices of the United Nations in northern Afghanistan on Friday, killing ten foreign staff members and beheading two of the victims, according to an Afghan police spokesman. Five Afghans were also killed.

The attack began when hundreds of demonstrators, some of them armed, poured out of mosques after Friday Prayer and headed to the headquarters of the United Nations in the northern city of Mazar-i-Sharif. They disarmed the guards and overran the compound, according to Lal Mohammad Ahmadzai, spokesman for Gen. Daoud Daoud, the Afghan National Police commander for northern Afghanistan.

A spokesman for the United Nations Assistance Mission in Afghanistan, Kieran Dwyer, said the attack had occurred during a demonstration. “We can confirm there have been casualties, including U.N. personnel, but the situation on the ground remains very confusing,” he said.

The hate industry in this country seems to believe they can fear-monger against Muslims here with no repercussions elsewhere.

It turns out, the globe is not that small.

US Intelligence Operatives in Libya, Before a Finding, Sounds Like JSOC

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Mark Hosenball, who yesterday broke the news that Obama had issued a Finding authorizing the CIA to operate covertly in Libya in the last 2-3 weeks, today says “intelligence operatives” were on the ground before Obama signed that Finding.

U.S. intelligence operatives were on the ground in Libya before President Barack Obama signed a secret order authorizing covert support for anti-Gaddafi rebels, U.S. government sources told Reuters.The CIA personnel were sent in to contact opponents of Libyan leader Muammar Gaddafi and assess their capabilities, two U.S. officials said.

[snip]

The president — who said in a speech on Monday “that we would not put ground troops into Libya” — has legal authority to send U.S. intelligence personnel without having to sign a covert action order, current and former U.S. officials said.

Within the last two or three weeks, Obama did sign a secret “finding” authorizing the CIA to pursue a broad range of covert activities in support of the rebels.

Congressional intelligence committees would have been informed of the order, which the officials said came after some CIA personnel were already inside Libya.

Now, one explanation for this is simply that Obama sent JSOC–under the guise of preparing the battlefield–rather than CIA. It sounds like the practice–first exploited by Cheney–that the government has used frequently in the last decade of ever-expanding Presidential authority.

Indeed, House Intelligence Chair Mike Rogers’ claims he must authorize covert action, but hasn’t, sounds like the kind of complaint we’ve frequently gotten when the President bypassed the intelligence committees by claiming DOD was simply preparing the battlefield.

And Hosenball’s nuanced language about “boots,” that is, military, on the ground, may support that view.

Furthermore, we know there are a slew of British Special Forces on the ground in Libya. So why not Americans, too?

Hosenball is not saying this explicitly, yet. And he does refer to “CIA operatives” (who could be in Libya to simply collect information). But all the subtext of this article suggests that our special forces have been on the ground since before any Finding, which in turn suggests they may have been there longer than 2-3 weeks (the timeframe given for the Finding).

This is all a wildarsed overreading of Hosenball at this point. But if I’m right, then it would mean Obama would be using the shell game he adopted from Cheney to engage in war without Congressional oversight.

Where Will Obama Try Himself for Material Support for Terrorism?

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I consider this a wicked brain teaser:

The Obama administration is engaged in a fierce debate over whether to supply weapons to the rebels in Libya, senior officials said on Tuesday, with some fearful that providing arms would deepen American involvement in a civil war and that some fighters may have links to Al Qaeda.

The debate has drawn in the White House, the State Department and the Pentagon, these officials said, and has prompted an urgent call for intelligence about a ragtag band of rebels who are waging a town-by-town battle against Col. Muammar el-Qaddafi, from a base in eastern Libya long suspected of supplying terrorist recruits.

“Al Qaeda in that part of the country is obviously an issue,” a senior official said.

On a day when Libyan forces counterattacked, fears about the rebels surfaced publicly on Capitol Hill on Tuesday when the military commander of NATO, Adm. James G. Stavridis, told a Senate hearing that there were “flickers” in intelligence reports about the presence of Qaeda and Hezbollah members among the anti-Qaddafi forces. No full picture of the opposition has emerged, Admiral Stavridis said. While eastern Libya was the center of Islamist protests in the late 1990s, it is unclear how many groups retain ties to Al Qaeda.

After all, according to Holder v. Humanitarian Law Project any help to a terrorist group–even counseling on how to make peace–is material support. And no matter how we try to spin arming rebels as an act of peace, it’s a good deal more help than legal counsel.

And, as the DC Circuit’s decision yesterday in Uthman Abdul Rahim Mohammed Uthman’s habeas suit makes clear, it’s not enough for a person to stop associating with al Qaeda in the 1990s, nor does the government need any real evidence of a tie between someone in al Qaeda’s vicinity to claim that person is a member of al Qaeda.

Uthman filed a challenge, and in February 2010, District Court Judge Henry H. Kennedy, Jr. ruled that he was being improperly held and that the United States had failed to demonstrate that he was a member of al-Qaeda. As ProPublica detailed, the government censored Kennedy’s decision and quickly appealed the case to a court that was already lowering the government’s burden for proving a prisoner’s detainability.

In another case last year, known as Salahi, the appeals court rejected a lower court’s standard that the government show direct evidence the detainee was a member of al-Qaeda. In that case, the court sent the detainee back to the district court to have his habeas corpus petition reheard.

In today’s opinion, written by Judge Brett Kavanaugh, the appeals court went further by reversing the habeas win outright. In doing so, the court determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.

That standard, the court wrote in its decision today, “along with uncontested facts in the record, demonstrate that Uthman more likely than not was part of al Qaeda.”

By the DC Circuit’s standards, it seems clear, at least some of the rebels we’ve been helping (and are debating arming) are the same as al Qaeda for legal purposes.

Which would mean we’ve already been offering material support to terrorists.

If I were Obama, I’d make the decision quickly about where he wants to be tried for material support of terrorism. If Bud McKeon has his way, he’ll take away the President’s decision-making authority on whether to try Americans in civilian or military trials.

So if you’re the President and need to decide where to try yourself for material support for terror, where do you do it?

Update: Mark Hosenball cites four different sources saying Obama signed a covert order to arm the rebels 2-3 weeks ago.

Obama signed the order, known as a presidential “finding”, within the last two or three weeks, according to four U.S. government sources familiar with the matter.

I forget. Does material support for terrorists done under cover of a Finding qualify as material support for terror?

It’s all so confusing!!!

Mark Bittman: “I stopped eating on Monday”

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NYT’s food columnist Mark Bittman has given up food:

I stopped eating on Monday and joined around 4,000 other people in a fast to call attention to Congressional budget proposals that would make huge cuts in programs for the poor and hungry.

By doing so, I surprised myself; after all, I eat for a living. But the decision was easy after I spoke last week with David Beckmann, a reverend who is this year’s World Food Prize laureate. Our conversation turned, as so many about food do these days, to the poor.

Who are — once again — under attack, this time in the House budget bill, H.R. 1. The budget proposes cuts in the WIC program (which supports women, infants and children), in international food and health aid (18 million people would be immediately cut off from a much-needed food stream, and 4 million would lose access to malaria medicine) and in programs that aid farmers in underdeveloped countries. Food stamps are also being attacked, in the twisted “Welfare Reform 2011” bill. (There are other egregious maneuvers in H.R. 1, but I’m sticking to those related to food.)

These supposedly deficit-reducing cuts — they’d barely make a dent — will quite literally cause more people to starve to death, go to bed hungry or live more miserably than are doing so now. And: The bill would increase defense spending.

Bittman doesn’t say it, of course, but just since Monday we’ve probably dropped enough bombs on Libya to offset these cuts.

We’re spending an average of $55 million a day to bomb Libyans while, as Bittman says, people here are going to bed hungry.

I don’t care where you come down on the question of whether we have a national interest in Libya or not. Until someone explains why that national interest is greater than feeding our own children, or until some decides to start taxing GE and Bank of America to pay for this, the action is illegitimate.

Liar Calls Access Journalist a Pot

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Even before Tom Ricks handed his blog over to Bob Woodward to rip Donald Rumsfeld a new asshole, Ricks shared this quote from H.R. Haldeman about Rummy as a way to introduce Rummy’s dismissal of Ricks’ Fiasco and Woodward’s books.

So in my research on the Vietnam War I was paging through H.R. Haldeman’s diaries to see what he says about General Creighton Abrams and was surprised to come across his comment about a former defense secretary we all know: “typical Rumsfeld, rather slimy maneuver.” (657)

As Ricks said, pot, kettle.

But proving there is no honor among thieves (and that you can’t use too many cliches before noon), Rummy has now hit back at Woodward.

Former Defense Secretary Donald Rumsfeld’s chief of staff accused Washington Post reporter Bob Woodward on Tuesday of practicing “access journalism,”  and said that Woodward has been repeatedly accused of “tilting the facts,”  “misleading remarks,” “disingenuous statements,” and placing “book sales above journalism.”

Keith Urbahn, who is also Rumsfeld’s official spokesperson, made the accusations in a statement to reporters in response to Woodward’s scathing critique of Rumsfeld’s recently released memoir, Known and Unknown.

[snip]

Urbahn accused Woodward of favoring his sources and granting them anonymity in exchange for access, while pushing his own storyline ahead of the facts.

“The well known story about Bob Woodward is that he practices what is derided as ‘access journalism,’ whereby he favors those who provide him with information and gossip and leak against their colleagues,” he said in a statement, which was also posted on Rumsfeld’s Facebook page. “Those who refuse to play along, such as Donald Rumsfeld, then pay the price.”

Another cliche: “I’m rubber and you’re glue…”

Now, as I suggested yesterday, for all of Woodward’s faults, I was floored when I saw how meticulously Woodward kept his notes as exhibited at the Libby trial. Plus, his post yesterday was really well documented. Not to mention we all know Rummy’s a pathological liar.

So I’m really just sharing Rummy’s response because I am loving watching these crotchety old Nixon-era zombies go after each other.

Plus, I secretly have my fingers crossed that Cheney will join in any moment now.

Bob Woodward, Blogger

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Let me just say, without qualification, that of the high profile journalists whose techniques were discussed or entered as evidence in the Scooter Libby trial, Bob Woodward had the best note taking. Judy Miller, Matt Cooper, Bob Novak, Andrea Mitchell (and, I’m sure, Marcy Wheeler)? They all were put to shame by Bob Woodward’s exactitude and organization in the way he recorded his interactions with government officials.

Which is why I find it so amusing to see Woodward take to Tom Ricks’ blog to rip Donald Rumsfeld’s memoir to pieces. Woodward knows he has the documentation to back up his critique and he cites the notes of his October 23, 2003 and July 7-8, 2006 interviews with Rummy in detail. Here’s the cattiest example:

Near the end of the Oct. 23, 2003 interview — page 39 of my transcript — this interchange took place, illustrating the worst and the best of him:

Rumsfeld: “And you lie, you told people I stuck a finger in your chest. I never stuck a finger in your chest.”

Woodward: “Yes, sir, yes, yes.”

Rumsfeld: “I never touched your chest.”

Woodward: “I swear you did.”

Rumsfeld: “Did I?”

Woodward: “Yeah, you did.”

Rumsfeld: “Physically?”

Woodward: “You did, physically, it wasn’t hostile you were illustrating a point.”

Rumsfeld: “Good.”

Woodward: “I explained that. I thought you scored a very good point.”

Rumsfeld: (laughter)

Woodward: “Which was about surprise and off balance.”

Rumsfeld: “Oh yes, I did. I remember that you’re right …Yeah, right, you are right …I said you got to get a little off balance — I’ve done that. He’s right, I’m wrong.”

He had moved from calling me a liar to acknowledging that my memory was correct and his wrong. He probably should have been more tentative at both the front end and the back end, but there it was, Rumsfeld in full.

Meanwhile, Woodward exposes Rummy’s own inconsistent claims about his notes.

“I don’t have notes,” Rumsfeld insisted. “I don’t have any notes.”  His memoir cites his personal handwritten notes dozens of time.

Sure, Woodward does this, in part, to ensure no one questions the accuracy of his own books as authoritative narratives of–among other things–the timeline leading up to the Iraq war. He also seems, in part, to be protecting Bush.

And sure, there are tidbits where the old Woodward shines through, even in his own self-reporting.

On January 9, 2002, four months after 9/11, Dan Balz of The Washington Post and I interviewed Rumsfeld for a newspaper series on the Bush administration’s response to 9/11. According to notes of the NSC, on September 12, the day after 9/11, Rumsfeld again raised Iraq saying, is there a need to address Iraq as well as bin Laden?

When Balz read this to Rumsfeld, he blew up. “I didn’t say that,” he said, maintaining that it was his aide Larry DiRita talking over his shoulder. His reaction was comic and we agreed to treat it as off the record. But Balz persisted and asked Rumsfeld what he was thinking. [bold original; underline emphasis mine]

But I gotta say, for a newbie blogger, Woodward sure took the medium.

“Shut up and explain how we could assist the FPs in finding *MORE* detainees”

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Atrios points out the hypocrisy of our foreign policy as displayed in his Twitter stream.

It reminded me of this:

(02:26:01 PM) Manning: i dont believe in good guys versus bad guys anymore… i only a plethora of states acting in self interest… with varying ethics and moral standards of course, but self-interest nonetheless

(02:26:18 PM) Manning: s/only/only see/

(02:26:47 PM) Lamo: the tm meant i was being facetious

(02:26:59 PM) Manning: gotchya

(02:27:47 PM) Manning: i mean, we’re better in some respects… we’re much more subtle… use a lot more words and legal techniques to legitimize everything

(02:28:00 PM) Manning: its better than disappearing in the middle of the night

(02:28:19 PM) Manning: but just because something is more subtle, doesn’t make it right

(02:29:04 PM) Manning: i guess im too idealistic

(02:31:02 PM) Manning: i think the thing that got me the most… that made me rethink the world more than anything

(02:35:46 PM) Manning: was watching 15 detainees taken by the Iraqi Federal Police… for printing “anti-Iraqi literature”… the iraqi federal police wouldn’t cooperate with US forces, so i was instructed to investigate the matter, find out who the “bad guys” were, and how significant this was for the FPs… it turned out, they had printed a scholarly critique against PM Maliki… i had an interpreter read it for me… and when i found out that it was a benign political critique titled “Where did the money go?” and following the corruption trail within the PM’s cabinet… i immediately took that information and *ran* to the officer to explain what was going on… he didn’t want to hear any of it… he told me to shut up and explain how we could assist the FPs in finding *MORE* detainees…

(02:35:46 PM) Lamo : I’m not here right now

(02:36:27 PM) Manning: everything started slipping after that… i saw things differently

(02:37:37 PM) Manning: i had always questioned the things worked, and investigated to find the truth… but that was a point where i was a *part* of something… i was actively involved in something that i was completely against… [my emphasis]

All the pop psychology that has been offered to explain why Bradley Manning allegedly leaked to WikiLeaks serves to obscure his own very clear explanation: Manning first “saw things differently” when he was ordered to help our client thug in Iraq crack down on very tame domestic dissent.

While I think the Administration has been not-horrible in its response to the upheaval in the Middle East, it still is mostly just “words and legal techniques to legitimize” American self interest.