Seymour Hersh: ‘Executive Assassination Ring’ Reported Directly to Cheney Office
Alternet (h/t Jeremy Scahill)
The following is part of a talk delivered by investigative journalist Seymour Hersh at the University of Minnesota last night. For a full report, go here.
“After 9/11, I haven’t written about this yet, but the Central Intelligence Agency was very deeply involved in domestic activities against people they thought to be enemies of the state. Without any legal authority for it. They haven’t been called on it yet. That does happen.
“Right now, today, there was a story in the New York Times that if you read it carefully mentioned something known as the Joint Special Operations Command — JSOC it’s called. It is a special wing of our special operations community that is set up independently. They do not report to anybody, except in the Bush-Cheney days, they reported directly to the Cheney office. They did not report to the chairman of the joint chiefs of staff or to Mr. [Robert] Gates, the secretary of defense. They reported directly to him. …
“Congress has no oversight of it. It’s an executive assassination ring essentially, and it’s been going on and on and on. Just today in the Times there was a story that its leaders, a three star admiral named [William H.] McRaven, ordered a stop to it because there were so many collateral deaths.
“Under President Bush’s authority, they’ve been going into countries, not talking to the ambassador or the CIA station chief, and finding people on a list and executing them and leaving. That’s been going on, in the name of all of us.
“It’s complicated because the guys doing it are not murderers, and yet they are committing what we would normally call murder. It’s a very complicated issue. Because they are young men that went into the Special Forces. The Delta Forces you’ve heard about. Navy Seal teams. Highly specialized.
“In many cases, they were the best and the brightest. Really, no exaggerations. Really fine guys that went in to do the kind of necessary jobs that they think you need to do to protect America. And then they find themselves torturing people.
“I’ve had people say to me — five years ago, I had one say: ‘What do you call it when you interrogate somebody and you leave them bleeding and they don’t get any medical committee and two days later he dies. Is that murder? What happens if I get before a committee.?’
“But they’re not gonna get before a committee.”
White House Intel Briefings Follow Economic Unrest
CIA director Leon Panetta has revealed the global financial crisis is now being tracked in the daily intelligence briefing prepared for President Obama. In his first news conference, Panetta said Obama is being briefed on how the financial crisis is unfolding and its effect on the stability of countries worldwide. Earlier this month, National Intelligence Director Dennis Blair said economic troubles have surpassed terrorism as the nation’s top security threat. Panetta also says Latin American intelligence officials have warned the US of a crisis spreading through the hemisphere. The officials highlighted developments in Argentina, Ecuador and Venezuela, Panetta said.
Obama Widens Missile Strikes Inside Pakistan
Members of Pakistani tribes offered funeral prayers on Feb. 15 for victims of an American missile attack in the North Waziristan region, near the Afghan border. (Reuters)
With two missile strikes over the past week, the Obama administration has expanded the covert war run by the Central Intelligence Agency inside Pakistan, attacking a militant network seeking to topple the Pakistani government.
The missile strikes on training camps run by Baitullah Mehsud represent a broadening of the American campaign inside Pakistan, which has been largely carried out by drone aircraft. Under President Bush, the United States frequently attacked militants from Al Qaeda and the Taliban involved in cross-border attacks into Afghanistan, but had stopped short of raids aimed at Mr. Mehsud and his followers, who have played less of a direct role in attacks on American troops.
The strikes are another sign that President Obama is continuing, and in some cases extending, Bush administration policy in using American spy agencies against terrorism suspects in Pakistan, as he had promised to do during his presidential campaign. At the same time, Mr. Obama has begun to scale back some of the Bush policies on the detention and interrogation of terrorism suspects, which he has criticized as counterproductive.
Mr. Mehsud was identified early last year by both American and Pakistani officials as the man who had orchestrated the assassination of Benazir Bhutto, the former prime minister and the wife of Pakistan’s current president, Asif Ali Zardari. Mr. Bush included Mr. Mehsud’s name in a classified list of militant leaders whom the C.I.A. and American commandos were authorized to capture or kill.
It is unclear why the Obama administration decided to carry out the attacks, which American and Pakistani officials said occurred last Saturday and again on Monday, hitting camps run by Mr. Mehsud’s network. The Saturday strike was aimed specifically at Mr. Mehsud, but he was not killed, according to Pakistani and American officials.
The Monday strike, officials say, was aimed at a camp run by Hakeem Ullah Mehsud, a top aide to the militant. By striking at the Mehsud network, the United States may be seeking to demonstrate to Mr. Zardari that the new administration is willing to go after the insurgents of greatest concern to the Pakistani leader.
But American officials may also be prompted by growing concern that the militant attacks are increasingly putting the civilian government of Pakistan, a nation with nuclear weapons, at risk.
For months, Pakistani military and intelligence officials have complained about Washington’s refusal to strike at Baitullah Mehsud, even while C.I.A. drones struck at Qaeda figures and leaders of the network run by Jalaluddin Haqqani, a militant leader believed responsible for a campaign of violence against American troops in Afghanistan.
According to one senior Pakistani official, Pakistan’s intelligence service on two occasions in recent months gave the United States detailed intelligence about Mr. Mehsud’s whereabouts, but said the United States had not acted on the information. Bush administration officials had charged that it was the Pakistanis who were reluctant to take on Mr. Mehsud and his network.
The strikes came after a visit to Islamabad last week by Richard C. Holbrooke, the American envoy to Pakistan and Afghanistan.
In a telephone interview on Friday, Mr. Holbrooke declined to talk about the attacks on Mr. Mehsud. The White House also declined to speak about Mr. Mehsud or the decisions that led up to the new strikes. A C.I.A. spokesman also declined to comment.
Senior Pakistani officials are scheduled to arrive in Washington next week at a time of rising tension over a declared truce between the Pakistani government and militants in the Swat region.
While the administration has not publicly criticized the Pakistanis, several American officials said in interviews in recent days that they believe appeasing the militants would only weaken Pakistan’s civilian government. Mr. Holbrooke said in the interview that Secretary of State Hillary Rodham Clinton and others would make clear in private, and in detail, why they were so concerned about what was happening in Swat, the need to send more Pakistani forces to the west, and why the deteriorating situation in the tribal areas added to instability in Afghanistan and threats to American forces.
Past efforts to cut deals with the insurgents failed, and many administration officials believe that they ultimately weakened the Pakistani government.
But Obama administration officials face the same intractable problems that the Bush administration did in trying to prod Pakistan toward a different course. Pakistan still deploys the overwhelming majority of its troops along the Indian border, not the border with Afghanistan, and its intelligence agencies maintain shadowy links to the Taliban even as they take American funds to fight them.
Under standard policy for covert operations, the C.I.A. strikes inside Pakistan have not been publicly acknowledged either by the Obama administration or the Bush administration. Using Predators and the more heavily armed Reaper drones, the C.I.A. has carried out more than 30 strikes since last September, according to American and Pakistani officials.
The attacks have killed a number of senior Qaeda figures, including Abu Jihad al-Masri and Usama al-Kini, who is believed to have helped plan the 1998 American Embassy bombings in East Africa and last year’s bombing of the Marriott Hotel in Islamabad.
American Special Operations troops based in Afghanistan have also carried out a number of operations into Pakistan’s tribal areas since early September, when a commando raid that killed a number of militants was publicly condemned by Pakistani officials. According to a senior American military official, the commando missions since September have been primarily to gather intelligence.
The meetings hosted by the Obama administration next week will include senior officials from both Pakistan and Afghanistan; Mrs. Clinton is to hold a rare joint meeting on Thursday with foreign ministers from the two countries. Also, Gen. Ashfaq Parvez Kayani, the Pakistani Army chief, will meet with Defense Secretary Robert M. Gates and Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff. Lt. Gen Ahmed Shuja Pasha, the head of Pakistan’s military spy service, will accompany General Kayani.
Bomber Kills More Than 30
ISLAMABAD, Pakistan — The police on Friday blamed a suicide bomber for a powerful explosion that killed more than 30 people and wounded at least 50 in the Pakistani city of Dera Ismail Khan, according to residents and Pakistani television reports.
The bombing, aimed at the funeral of a Shiite man who had been shot, set off chaos in the city of a million people on the edge of Pakistan’s tribal areas. Mobs attacked security forces, ransacked shops and surrounded hospitals said the mayor, Abdur Rauf.
Eric Schmitt contributed reporting from Islamabad, Pakistan.
Obama’s War on Terror May Resemble Bush’s in Some Areas
Update: Greenwald has written an excellent companion post to this article. Highly recommended.
Charlie Savage, New York Times
Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.
Leon F. Panetta opened a loophole in the Obama administration’s interrogation restrictions while testifying before a Senate panel this month. (Michael Temchine for The New York Times)
In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.
The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.
And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”
These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.
In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.
“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”
Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.
But in more recent weeks, things have become murkier.
During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.
Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.
Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama’s interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for “additional authority.”
To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding — a technique that induces the sensation of drowning, and that the Bush administration said was lawful — is torture.
But Mr. Panetta also said the C.I.A. might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.
Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries — some of which allegedly used torture — for interrogation, not trials.
Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment — the same safeguard the Bush administration used, and that critics say is ineffective.
Mr. Craig noted that while Mr. Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”
He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”
Civil liberties groups praise Mr. Obama’s early executive orders on national security, but say other signs are discouraging.
For example, Mr. Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.
Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux — exactly the same legal arguments that we saw the Bush administration present to the court.”
Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.
“Every president in my lifetime has invoked the state-secrets privilege,” Mr. Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”
Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case — as opposed to withholding particular evidence.
The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.
Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”
The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s editorial page argued that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” as Mr. Obama’s team embraces aspects of Mr. Bush’s counterterrorism approach.
Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Mr. Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”
Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush’s antiterror strategy.
“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Mr. Craig said. “There has been a dramatic change of direction.”
Israel Launches Covert War Against Iran
Israel has launched a covert war against Iran as an alternative to direct military strikes against Tehran’s nuclear programme, US intelligence sources have revealed.
Israel foreign minister Tzipi Livni (EPA)
It is using hitmen, sabotage, front companies and double agents to disrupt the regime’s illicit weapons project, the experts say.
The most dramatic element of the “decapitation” programme is the planned assassination of top figures involved in Iran’s atomic operations.
Despite fears in Israel and the US that Iran is approaching the point of no return in its ability to build atom bomb, Israeli officials are aware of the change in mood in Washington since President Barack Obama took office.
They privately acknowledge the new US administration is unlikely to sanction an air attack on Iran’s nuclear installations and Mr Obama’s offer to extend a hand of peace to Tehran puts any direct military action beyond reach for now.
The aim is to slow down or interrupt Iran’s research programme, without the gamble of a direct confrontation that could lead to a wider war.
A former CIA officer on Iran told The Daily Telegraph: “Disruption is designed to slow progress on the programme, done in such a way that they don’t realise what’s happening. You are never going to stop it.
“The goal is delay, delay, delay until you can come up with some other solution or approach. We certainly don’t want the current Iranian government to have those weapons. It’s a good policy, short of taking them out militarily, which probably carries unacceptable risks.”
Reva Bhalla, a senior analyst with Stratfor, the US private intelligence company with strong government security connections, said the strategy was to take out key people.
“With co-operation from the United States, Israeli covert operations have focused both on eliminating key human assets involved in the nuclear programme and in sabotaging the Iranian nuclear supply chain,” she said.
“As US-Israeli relations are bound to come under strain over the Obama administration’s outreach to Iran, and as the political atmosphere grows in complexity, an intensification of Israeli covert activity against Iran is likely to result.”
Mossad was rumoured to be behind the death of Ardeshire Hassanpour, a top nuclear scientist at Iran’s Isfahan uranium plant, who died in mysterious circumstances from reported “gas poisoning” in 2007.
Other recent deaths of important figures in the procurement and enrichment process in Iran and Europe have been the result of Israeli “hits”, intended to deprive Tehran of key technical skills at the head of the programme, according to Western intelligence analysts.
“Israel has shown no hesitation in assassinating weapons scientists for hostile regimes in the past,” said a European intelligence official, speaking on condition of anonymity. They did it with Iraq and they will do it with Iran when they can.”
Mossad’s covert operations cover a range of activities. The former CIA operative revealed how Israeli and US intelligence co-operated with European companies working in Iran to obtain photographs and other confidential material about Iranian nuclear and missile sites.
“It was a real company that operated from time to time in Iran and in the nature of their legitimate business came across information on various suspect Iranian facilities,” he said.
Israel has also used front companies to infiltrate the Iranian purchasing network that the clerical regime uses to circumvent United Nations sanctions and obtain so-called “dual use” items – metals, valves, electronics, machinery – for its nuclear programme.
The businesses initially supply Iran with legitimate material, winning Tehran’s trust, and then start to deliver faulty or defective items that “poison” the country’s atomic activities.
“Without military strikes, there is still considerable scope for disrupting and damaging the Iranian programme and this has been done with some success,” said Yossi Melman, a prominent Israeli journalist who covers security and intelligence issues for the Haaretz newspaper.
Mossad and Western intelligence operations have also infiltrated the Iranian nuclear programme and “bought” information from prominent atomic scientists. Israel has later selectively leaked some details to its allies, the media and United Nations atomic agency inspectors.
On one occasion, Iran itself is understood to have destroyed a nuclear facility near Tehran, bulldozing over the remains and replacing it with a football pitch, after its existence was revealed to UN inspectors. The regime feared that the discovery by inspectors of an undeclared nuclear facility would result in overwhelming pressure at the UN for tougher action against Iran.
The Iranian government has become so concerned about penetration of its programme that it has announced arrests of alleged spies in an attempt to discourage double agents. “Israel is part of a detailed and elaborate international effort to slow down the Iranian programme,” said Mr Melman.
But Vince Canastraro, the former CIA counter-terrorism chief, expressed doubts about the efficacy of secret Israeli operations against Iran. “You cannot carry out foreign policy objectives via covert operations,” he said. “You can’t get rid of a couple of people and hope to affect Iran’s nuclear capability.”
Iran has consistently asserted that it is pursuing a nuclear capability for civilian energy generation purposes. But Israeli and Western intelligence agencies believe the 20-year-old programme, which was a secret until 2002, is designed to give the ruling mullahs an atom bomb.
America’s Law-Free Zone
David Rivkin and Lee Casey are right-wing lawyers and former Reagan DOJ officials who, over the last eight years, have been extremely prolific in jointly defending Bush/Cheney theories of executive power. Today, they have one of their standard Op-Eds, this time in The Washington Post, demanding that there be no investigations or prosecutions of Bush officials. Most of the arguments they advance are the standard platitudes now composing Beltway conventional wisdom on this matter. But there is one aspect of their advocacy that is somewhat remarkable and worth noting.
Rifkin and Casey have long been vigorous opponents of the legitimacy of international tribunals to adjudicate crimes committed by American officials. In February, 2007, they wrote an Op-Ed in the Post bitterly criticizing Italian officials for indicting 25 CIA agents who had literally kidnapped a Muslim cleric from Italy and “rendered” him from Milan to Egypt. In that Op-Ed, the Bush-defending duo argued that Italy had no right to prosecute these agents (h/t reader tc):
An Italian court announced this month that it is moving forward with the indictment and trial of 25 CIA agents charged with kidnapping a radical Muslim cleric. These proceedings may well violate international law, but the case serves as a wake-up call to the United States . . . .
[T]he United States must still vigorously resist the prosecution of its indicted agents. . . . [I]t is up to American, not Italian, authorities to determine whether any offense was committed in the capture and rendition of Nasr.
Unfortunately, the effort to prosecute these American agents is only one instance of a growing problem. Efforts to use domestic and international legal systems to intimidate U.S. officials are proliferating, especially in Europe.Cases are pending in Germany against other CIA agents and former defense secretary Donald Rumsfeld — all because of controversial aspects of the war on terrorism. These follow Belgium’s misguided effort to pursue “universal jurisdiction” claims for alleged violations of international law, which also resulted in complaints against American officials including Vice President Cheney and former secretary of state Colin Powell. That law was amended, but the overall problem is unlikely to go away. The initiation of judicial proceedings against individual Americans is too attractive a means of striking at the United States — and one often not subject to control by the relevant foreign government.
Accordingly, Congress should make it a crime to initiate or maintain a prosecution against American officials if the proceeding itself otherwise violates accepted international legal norms.
So it’s up to the U.S. — not any foreign tribunals — to prosecute war crimes and other felonies committed by American officials (for reasons that, at least in part, I find persuasive). In fact, they argue, international prosecutions are so illegitimate that such proceedings themselves should be declared by the U.S. to be crimes. Indeed, like most of their political comrades, Rivkin and Casey have consistently argued that U.S. jurisdiction over alleged violations of international law and U.S. treaties by U.S. citizens — including our leaders — is exclusive.
They made the same argument when opposing U.S. ratification of the enabling statute of the International Criminal Court (.pdf), arguing that “[t]he question is whether [international] law can, or should, be enforced outside national legal systems that have generally functioned well.” Their answer, of course, is that, when it comes to Americans, international law obligations cannot and shouldn’t be enforced anywhere but America:
There are many problems with the Rome Treaty. The most immediate one, for Americans, is the danger of its being used as a political instrument against us. But the most profound flaw is a philosophical one: The concept of “international” justice underpinning the ICC project is more apparent than real. . . .
The prosecution of political leaders is inherently political, and there are at least two sides to every political conflict. . . . From America’s perspective, the greatest practical danger of joining the ICC regime would be that the court, driven by those who may resent American global preeminence, could seek to restrain the use of U.S. military power through prosecutions of U.S. leaders.
They then went on to call for the Bush administration to vocally and decisively reject the legitimacy of the ICC so that the whole edifice would collapse. This is because American leaders should not be subjected to prosecution in foreign countries for their crimes — only in America.
Yet what do these two argue today? That domestic investigations and prosecutions — by American tribunals and American courts — are alsoinappropriate, illegitimate and destructive. Though they acknowledge that “the Justice Department is capable of considering whether any criminal charges are appropriate,” they nonetheless insist that this must not be done:
For his part, President Obama has reacted coolly to calls to investigate Bush officials. Obama is right to be skeptical; this is a profoundly bad idea — for policy and, depending on how such a commission were organized and operated, for legal and constitutional reasons. . . .
Attempting to prosecute political opponents at home or facilitating their prosecution abroad, however much one disagrees with their policy choices while in office, is like pouring acid into our democratic machinery. As the history of the late, unlamented independent counsel statute taught, once a Pandora’s box is opened, its contents can wreak havoc equally across the political and party spectrum. . . .
Obama and the Democratic Congress are entitled to revise and reject any or all of the Bush administration’s policies. But no one is entitled to hound political opponents with criminal prosecution, whether directly or through the device of a commission, and those who support such efforts now may someday regret the precedent it sets.
So no international tribunals or foreign countries have any power to investigate or prosecute American officials for war crimes (even when those war crimes are against citizens of those countries and/or committed within their borders). And, American political officials must also not be prosecuted inside the U.S., by American courts. “Nobody is entitled” to do that either, because “attempting to prosecute political opponents at home or facilitating their prosecution abroad is like pouring acid into our democratic machinery.”
The implication of their argument — which is now the conventional Beltway view — is too obvious to require much elaboration. If our political leaders can’t be held accountable for their war crimes and other serious felonies in foreign countries or international tribunals, and must never be held accountable in the U.S. either (because to do so is to “pour acid into our democratic machinery”), then it means that American political officials (in contrast to mostother leaders) are completely and explicitly exempt from, placed above, the rule of law. That conclusion is compelled from their premises.
At least to me, it’s just endlessly perplexing how anyone — let alone our political class in unison — could actually endorse such absolute lawlessness for political leaders. Didn’t our opinion-making elites learn in eight grade that the alternative to a “nation of laws” was a “nation of men” — i.e., the definition of tyranny? Those are the only two choices. It’s just so basic.
Apparently, though, this is all fine with our political establishment, since none of this is new. Here’s what Iran-contra prosecutor (and life-long Republican official) Lawrence Walsh said in 1992 after George H.W. Bush pardoned Casper Weinberger days before his trial was set to begin:
President Bush’s pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. It demonstrates that powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence.
Weinberger, who faced four felony charges, deserved to be tried by a jury of citizens. Although it is the President’s prerogative to grant pardons, it is every American’s right that the criminal justice system be administered fairly, regardless of a person’s rank and connections.
The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. . . . Weinberger’s early and deliberate decision to conceal and withhold extensive contemporaneous notes of the Iran-contra matter radically altered the official investigations and possibly forestalled timely impeachment proceedings against President Reagan and other officials. Weinberger’s notes contain evidence of a conspiracy among the highest-ranking Reagan Administration officials to lie to Congress and the American public. . . .
In light of President Bush’s own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations.
Does anyone deny that we are exactly the country that Walsh described: one where “powerful people with powerful allies can commit serious crimes in high office — deliberately abusing the public trust without consequence”? And what rational person could think that’s a desirable state of affairs that ought not only be preserved — but fortified still further– as we move now to immunize Bush 43 officials for their far more serious and disgraceful crimes? As the Rifkin/Casey oeuvre demonstrates, we’ve created a zone of lawlessness around our highest political leaders and either refuse to acknowledge that we’ve done that or, worse, have decided that we don’t really mind.
Obama Screws Up So Badly Even the Times Takes Notice
The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law.
On Monday, a Justice Department lawyer dispatched by the new attorney general, Eric Holder, appeared before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco. The case before them involves serious allegations of torture by five victims of President Bush’s extraordinary rendition program. The five were seized and transported to American facilities abroad or to countries known for torturing prisoners.
Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred.
Voters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.
The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it. For one thing, there is ample public information available about the C.I.A.’s rendition, detention and coercive interrogation programs. The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.
President Obama has taken some important steps to repair Mr. Bush’s damaging legacy — issuing executive orders to prohibit torture, shut secret prisons overseas and direct closure of the detention camp at Guantánamo Bay, Cuba. It would have been good if he and Mr. Holder had shown the same determination in that federal court, rather than defending the indefensible.
The Washington Establishment’s Plans for Obama’s Executive Orders
“The case against Clevinger was open and shut. The only thing missing was something to charge him with.”
– Joseph Heller, Catch-22
Barack Obama will have spent his first several days in office issuing a series of executive orders which, some quibbling and important caveats and reservations aside, meet or actually exceed even the most optimistic expectations of civil libertarians for what he could or would do quickly — everything from ordering the closing of Guantanamo to suspending military commissions to compelling CIA interrogators to adhere to the Army Field Manual to banning CIA “black sites” and, perhaps most encouragingly (in my view): severely restricting his own power and the power of former Presidents to withhold documents and other information on the basis of secrecy, which was the prime corrosive agent, the main enabler, of the Bush era. As a result, establishment and right-wing figures who have been assuring everyone (most of all themselves) that Obama, in these areas, would scorn “the Left” (meaning: those who believe in Constitutional safeguards) and would continue most of Bush’s “counter-Terrorism” policies are growing increasingly nervous about this flurry of unexpected Bush-repudiating activity.
The Washington Post‘s Fred Hiatt has an Editorial today purporting to praise what he claims is Obama’s “appropriate prudence in taking things slowly — at least for now.” Hiatt further praises Obama for his intention to scrap the current military commissions system, because, as Hiatt puts it, “a deeply flawed and unjust legal process such as the one in place at Guantanamo is untenable.” Yet this is what Hiatt says about what should replace the Guantanamo military commissions system:
Mr. Obama should order trials in federal court when possible. For those for whom traditional prosecutions would not be feasible, he should ensure robust due process, whether in courts-martial or aversion of existing military commissions. If there are dangerous detainees who cannot be tried— a possibility that Mr. Obama has acknowledged — the president should consider creation of a specialized court, akin to the Foreign Intelligence Surveillance Court, in which such detainees would be guaranteed periodic review of their detentions by a federal judge empowered to order their release.
This paragraph, which more or less embodies the conventional wisdom about what should be done with Guantanamo detainees once that camp is closed, is about as ironic a claim as can be imagined. Just think about what Hiatt, masquerading (as always) as the defender of democracy and Western justice, is actually saying:
In the name of due process, we should give Guantanamo detainees a trial in our normal civilian courts, using our normal rules of justice —but only if we’re certain ahead of time that we can win and convict them. For those we’re not certain we can convict using our normal standards of due process (because the evidence against them is “tainted”), we should re-write the rules of justice and create a whole new tribunal (similar to the Guantanamo military commissions that Hiatt pretends to decry, which advocates, in Orwellian fashion, typically call “national security courts”) in order to make it easier for us to win against them and keep them incarcerated. And then, for those who we can’t convict even in the new, “looser” tribunals, we’ll just create a wholly separate, new, presumably secret tribunal that has the power to keep people detained indefinitely without having to prove that they violated any laws at all.
Rather obviously, if you afford due process safeguards only to those people you’re sure you can convict anyway, but then deny them at will to whomever you think can’t be convicted under the normal rules, that isn’t “due process.” That’s a transparent sham, a mockery of justice. You can’t have different due process standards and entirely different courts that you pick and choose from based on how many rights you think you can afford to extend and still be assured of a conviction (e.g.: “we’ll probably lose in a real court against this detainee because the prime evidence we have against him is a coerced confession, so let’s stick this one in a national security court where we can use the coerced confession and don’t have to extend other rights and safeguards that will get in our way, and thus be assured of winning”).
More obviously still, the U.S. will not, as Hiatt puts it, “end the discredited practices for handling foreign detainees that have blemished the United States’ reputation worldwide” if we simultaneously, as Hiatt advocates, create a new court that is empowered to keep accused Terrorists in cages indefinitely without having to give them a trial at all (i.e., a “preventive detention” scheme). If all we end up doing is re-creating the travesties of Guantanamo inside the U.S., we will not have taken a step forward. One could plausibly argue that replicating Guantanamo inside the U.S. will be to do the opposite.
This is why the understandable enthusiasm (which I definitely share) over Obama’s pleasantly unexpected commitment in the first few hours of his presidency to take politically difficult steps in the civil liberties and accountability realms should be tempered somewhat. There is going to be very concerted pressure exerted on him by establishment guardians such as Hiatt (and the Brookings Institution, Jack Goldsmith and friends), to say nothing of hard-line factions within the intelligence community and its various allies, for Obama to take subsequent steps that would eviscerate much of this progress, that render these initial rollbacks largely empty, symbolic gestures. Whether these steps, impressive as they are, will be symbolic measures designed to placate certain factions, or whether they represent a genuine commitment on Obama’s part, remains to be seen. Much of it will depend on how much political pressure is exerted and from what sides.
Obama deserves real praise for devoting the first few days of his presidency to these vital steps — and doing so without there being much of a political benefit and with some real political risk. That’s genuinely encouraging. But ongoing vigilance is necessary, to counter-balance the Fred Hiatts, Brookings Institutions and other national security state fanatics, to ensure that these initial steps aren’t undermined.
Intelligence Policy to Stay Largely Intact
Former National Counterterrorism Center chief John Brennan, leader of Obama intelligence transition team. (AP)
WASHINGTON — President-elect Barack Obama is unlikely to radically overhaul controversial Bush administration intelligence policies, advisers say, an approach that is almost certain to create tension within the Democratic Party.
Civil-liberties groups were among those outraged that the White House sanctioned the use of harsh intelligence techniques — which some consider torture — by the Central Intelligence Agency, and expanded domestic spy powers. These groups are demanding quick action to reverse these policies.
Mr. Obama is being advised largely by a group of intelligence professionals, including some who have supported Republicans, and centrist former officials in the Clinton administration. They say he is likely to fill key intelligence posts with pragmatists.
“He’s going to take a very centrist approach to these issues,” said Roger Cressey, a former counterterrorism official in the Clinton and Bush administrations. “Whenever an administration swings too far on the spectrum left or right, we end up getting ourselves in big trouble.”
On the campaign trail, Mr. Obama criticized many of President George W. Bush’s counterterrorism policies. He condemned Mr. Bush for promoting “excessive secrecy, indefinite detention, warrantless wiretapping and ‘enhanced interrogation techniques’ like simulated drowning that qualify as torture through any careful measure of the law or appeal to human decency.”
As a candidate, Mr. Obama said the CIA’s interrogation program should adhere to the same rules that apply to the military, which would prohibit the use of techniques such as waterboarding. He has also said the program should be investigated.
Yet he more recently voted for a White House-backed law to expand eavesdropping powers for the National Security Agency. Mr. Obama said he opposed providing legal immunity to telecommunications companies that aided warrantless surveillance, but ultimately voted for the bill, which included an immunity provision.
The new president could take a similar approach to revising the rules for CIA interrogations, said one current government official familiar with the transition. Upon review, Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight.
The intelligence-transition team is led by former National Counterterrorism Center chief John Brennan and former CIA intelligence-analysis director Jami Miscik, say officials close to the matter. Mr. Brennan is viewed as a potential candidate for a top intelligence post. Ms. Miscik left amid a slew of departures from the CIA under then-Director Porter Goss.
Advisers caution that few decisions will be made until the team gets a better picture of how the Bush administration actually goes about gathering intelligence, including covert programs, and there could be a greater shift after a full review.
The Obama team plans to review secret and public executive orders and recent Justice Department guidelines that eased restrictions on domestic intelligence collection. “They’ll be looking at existing executive orders, then making sure from Jan. 20 on there’s going to be appropriate executive-branch oversight of intelligence functions,” Mr. Brennan said in an interview shortly before Election Day.
The early transition effort is winning praise from moderate Democrats. “He’s surrounded himself with excellent people — an excellent bipartisan group,” said Rep. Jane Harman, a California Democrat who is chairwoman of the House homeland-security subcommittee on intelligence.
Civil-liberties and human-rights advocates, who helped Mr. Obama win election, are seeking both a reversal of Bush administration policies and expanded investigations into possible illegal actions when the administration sought to track down terrorists after the attacks of Sept. 11, 2001.
“We need to understand what happened,” said Caroline Fredrickson, director of the American Civil Liberties Union’s Washington office.
Most of those being discussed as candidates for director of national intelligence and director of the CIA have staked out a middle ground between safeguarding civil liberties and aggressively pursuing nontraditional adversaries.
Mr. Brennan is a leading contender for one of the two jobs, say some advisers. He declined to comment on personnel matters. Gen. James L. Jones, a former North Atlantic Treaty Organization commander; Thomas Fingar, the chief of analysis for the intelligence director; Joan A. Dempsey, who served in top intelligence and Pentagon posts; former Rep. Tim Roemer of Indiana, who served on the 9/11 Commission; and Ms. Harman have also been mentioned. Ms. Harman has also been cited as a potential secretary of homeland security.
“I’m very flattered that some folks somewhere think I would be qualified for a number of positions,” she said. “But I’m also looking forward to an eighth term in Congress working on many of these issues.”
None of the others could be reached for comment.
Another option for Mr. Obama would be to retain current intelligence Director Mike McConnell, who has said he would stay on for a reasonable time until a successor is named. CIA Director Michael V. Hayden also is open to considering an extension of his time in office, according to a senior intelligence official.
However, Mr. Obama voted against Mr. Hayden’s nomination as CIA director to signal his frustration with the administration’s warrantless-surveillance program, which Mr. Hayden helped launch as National Security Agency director.
Write to Siobhan Gorman at siobhan.gorman@wsj.com
Secret Order Lets U.S. Raid Al Qaeda in Many Countries
A 2004 order permits attacks on terrorists outside war zones.
WASHINGTON — The United States military since 2004 has used broad, secret authority to carry out nearly a dozen previously undisclosed attacks against Al Qaeda and other militants in Syria, Pakistan and elsewhere, according to senior American officials.
These military raids, typically carried out by Special Operations forces, were authorized by a classified order that Defense Secretary Donald H. Rumsfeld signed in the spring of 2004 with the approval of President Bush, the officials said. The secret order gave the military new authority to attack the Qaeda terrorist network anywhere in the world, and a more sweeping mandate to conduct operations in countries not at war with the United States.
In 2006, for example, a Navy Seal team raided a suspected militants’ compound in the Bajaur region of Pakistan, according to a former top official of the Central Intelligence Agency. Officials watched the entire mission — captured by the video camera of a remotely piloted Predator aircraft — in real time in the C.I.A.’s Counterterrorist Center at the agency’s headquarters in Virginia 7,000 miles away.
Some of the military missions have been conducted in close coordination with the C.I.A., according to senior American officials, who said that in others, like the Special Operations raid in Syria on Oct. 26 of this year, the military commandos acted in support of C.I.A.-directed operations.
But as many as a dozen additional operations have been canceled in the past four years, often to the dismay of military commanders, senior military officials said. They said senior administration officials had decided in these cases that the missions were too risky, were too diplomatically explosive or relied on insufficient evidence.
More than a half-dozen officials, including current and former military and intelligence officials as well as senior Bush administration policy makers, described details of the 2004 military order on the condition of anonymity because of its politically delicate nature. Spokesmen for the White House, the Defense Department and the military declined to comment.
Apart from the 2006 raid into Pakistan, the American officials refused to describe in detail what they said had been nearly a dozen previously undisclosed attacks, except to say they had been carried out in Syria, Pakistan and other countries. They made clear that there had been no raids into Iran using that authority, but they suggested that American forces had carried out reconnaissance missions in Iran using other classified directives.
According to a senior administration official, the new authority was spelled out in a classified document called “Al Qaeda Network Exord,” or execute order, that streamlined the approval process for the military to act outside officially declared war zones. Where in the past the Pentagon needed to get approval for missions on a case-by-case basis, which could take days when there were only hours to act, the new order specified a way for Pentagon planners to get the green light for a mission far more quickly, the official said.
It also allowed senior officials to think through how the United States would respond if a mission went badly. “If that helicopter goes down in Syria en route to a target,” a former senior military official said, “the American response would not have to be worked out on the fly.”
The 2004 order was a step in the evolution of how the American government sought to kill or capture Qaeda terrorists around the world. It was issued after the Bush administration had already granted America’s intelligence agencies sweeping power to secretly detain and interrogate terrorism suspects in overseas prisons and to conduct warrantless eavesdropping on telephone and electronic communications.
Shortly after the Sept. 11 attacks, Mr. Bush issued a classified order authorizing the C.I.A. to kill or capture Qaeda militants around the globe. By 2003, American intelligence agencies and the military had developed a much deeper understanding of Al Qaeda’s extensive global network, and Mr. Rumsfeld pressed hard to unleash the military’s vast firepower against militants outside the combat zones of Iraq and Afghanistan.
The 2004 order identifies 15 to 20 countries, including Syria, Pakistan, Yemen, Saudi Arabia and several other Persian Gulf states, where Qaeda militants were believed to be operating or to have sought sanctuary, a senior administration official said.
Even with the order, each specific mission requires high-level government approval. Targets in Somalia, for instance, need at least the approval of the defense secretary, the administration official said, while targets in a handful of countries, including Pakistan and Syria, require presidential approval.
The Pentagon has exercised its authority frequently, dispatching commandos to countries including Pakistan and Somalia. Details of a few of these strikes have previously been reported.
For example, shortly after Ethiopian troops crossed into Somalia in late 2006 to dislodge an Islamist regime in Mogadishu, the Pentagon’s Joint Special Operations Commandquietly sent operatives and AC-130 gunships to an airstrip near the Ethiopian town of Dire Dawa. From there, members of a classified unit called Task Force 88 crossed repeatedly into Somalia to hunt senior members of a Qaeda cell believed to be responsible for the 1998 American Embassy bombings in Kenya and Tanzania.
At the time, American officials said Special Operations troops were operating under a classified directive authorizing the military to kill or capture Qaeda operatives if failure to act quickly would mean the United States had lost a “fleeting opportunity” to neutralize the enemy.
Occasionally, the officials said, Special Operations troops would land in Somalia to assess the strikes’ results. On Jan. 7, 2007, an AC-130 struck an isolated fishing village near the Kenyan border, and within hours, American commandos and Ethiopian troops were examining the rubble to determine whether any Qaeda operatives had been killed.
But even with the new authority, proposed Pentagon missions were sometimes scrubbed because of bad intelligence or bureaucratic entanglements, senior administration officials said.
The details of one of those aborted operations, in early 2005, were reported by The New York Times last June. In that case, an operation to send a team of the Navy Seals and the Army Rangers into Pakistan to capture Ayman al-Zawahri, Osama bin Laden’s top deputy, was aborted at the last minute.
Mr. Zawahri was believed by intelligence officials to be attending a meeting in Bajaur, in Pakistan’s tribal areas, and the Pentagon’s Joint Special Operations Command hastily put together a plan to capture him. There were strong disagreements inside the Pentagon and the C.I.A. about the quality of the intelligence, however, and some in the military expressed concern that the mission was unnecessarily risky.
Porter J. Goss, the C.I.A. director at the time, urged the military to carry out the mission, and some in the C.I.A. even wanted to execute it without informing Ryan C. Crocker, then the American ambassador to Pakistan. Mr. Rumsfeld ultimately refused to authorize the mission.
Former military and intelligence officials said that Lt. Gen. Stanley A. McChrystal, who recently completed his tour as head of the Joint Special Operations Command, had pressed for years to win approval for commando missions into Pakistan. But the missions were frequently rejected because officials in Washington determined that the risks to American troops and the alliance with Pakistan were too great.
Capt. John Kirby, a spokesman for General McChrystal, who is now director of the military’s Joint Staff, declined to comment.
The recent raid into Syria was not the first time that Special Operations forces had operated in that country, according to a senior military official and an outside adviser to the Pentagon.
Since the Iraq war began, the official and the outside adviser said, Special Operations forces have several times made cross-border raids aimed at militants and infrastructure aiding the flow of foreign fighters into Iraq.
The raid in late October, however, was much more noticeable than the previous raids, military officials said, which helps explain why it drew a sharp protest from the Syrian government.
Negotiations to hammer out the 2004 order took place over nearly a year and involved wrangling between the Pentagon and the C.I.A. and the State Department about the military’s proper role around the world, several administration officials said.
American officials said there had been debate over whether to include Iran in the 2004 order, but ultimately Iran was set aside, possibly to be dealt with under a separate authorization.
Senior officials of the State Department and the C.I.A. voiced fears that military commandos would encroach on their turf, conducting operations that historically the C.I.A. had carried out, and running missions without an ambassador’s knowledge or approval.
Mr. Rumsfeld had pushed in the years after the Sept. 11 attacks to expand the mission of Special Operations troops to include intelligence gathering and counterterrorism operations in countries where American commandos had not operated before.
Bush administration officials have shown a determination to operate under an expansive definition of self-defense that provides a legal rationale for strikes on militant targets in sovereign nations without those countries’ consent.
Several officials said the negotiations over the 2004 order resulted in closer coordination among the Pentagon, the State Department and the C.I.A., and set a very high standard for the quality of intelligence necessary to gain approval for an attack.
The 2004 order also provided a foundation for the orders that Mr. Bush approved in July allowing the military to conduct raids into the Pakistani tribal areas, including the Sept. 3 operation by Special Operations forces that killed about 20 militants, American officials said.
Administration officials said that Mr. Bush’s approval had paved the way for Defense Secretary Robert M. Gates to sign an order — separate from the 2004 order — that specifically directed the military to plan a series of operations, in cooperation with the C.I.A., on the Qaeda network and other militant groups linked to it in Pakistan.
Unlike the 2004 order, in which Special Operations commanders nominated targets for approval by senior government officials, the order in July was more of a top-down approach, directing the military to work with the C.I.A. to find targets in the tribal areas, administration officials said. They said each target still needed to be approved by the group of Mr. Bush’s top national security and foreign policy advisers, called the Principals Committee.
leave a comment