Category Archives: Terrorism

In Defense of Crazy Talk: Why Bradford’s West Point Article is Worth Talking About

War on The Rocks

September 10, 2015

The dust has now settled after William C. Bradford, a newly hired West Point law professor, made headlines for a controversial essay published in the little-read student-run National Security Law Journal. The Guardian’s Spencer Ackerman reported that Bradford was denied tenure a decade ago from the Indiana University School of Law for wildly misrepresenting his military service and that, in the law review article in question, he seems to have misrepresented his affiliation with the National Defense University. These offenses made his employment by a military academy whose honor code is central to its mission untenable. It was therefore not surprising when Bradford resigned.

So that’s the end of it, right? We can all just forget about this sorry episode? Wrong.

While I wholeheartedly reject not only Bradford’s outrageous argument but most of the premises from which it flows, I rise to a qualified defense of the article on a number of fronts and I think we owe it to ourselves to keep talking about it.

Bradford’s article argues that a handful of prominent American legal scholars are a “fifth column” lending support to the Islamist enemies of the United States and should therefore be targeted for death as combatants in the war on terrorism. The argument is absurd on both first glance and deeper reading. It is nonetheless a highly valuable contribution to the national security debate.

First, there’s great value in outrageous but well-argued polemic. By pushing an argument to its logical extreme, Bradford has invited a vigorous pushback from the scholarly community. Second, debating the article would be especially valuable for cadets and more senior officers alike, many of whom share some of Bradford’s premises, even if they might never come to his extreme conclusions. Third, Bradford’s argument presents an opportunity to examine some actual U.S. policies.

Following the firestorm, the article was repudiated by the incoming editorial board of the National Security Law Journal in which it was published as an “egregious breach of professional decorum” and excoriated in its pages as “bonkers” by George Mason law professor Jeremy Rabkin, who calls its central charge that prominent scholars are intentionally acting on behalf of Islamists “too preposterous for anyone to take seriously.”

Interestingly, Bradford and Rabkin were among the signatories of a March 2003 public letter calling attention to the legal prohibition against Saddam Hussein’s government’s use of human shields to protect its military forces from impending attack from the U.S.-led coalition. Both are conservative legal scholars inclined to sympathize with the plight of a United States government hamstrung by international norms in fighting enemies who do not observe them. They simply reach different conclusions on where to draw the line.

Indeed, Rabkin and the student editors are not indisputably right. While I find the notion that the scholars should be murdered because their arguments happen to aid the jihadists risible (to put it mildly) there is certainly precedent for arguing that scholars have some responsibilities as citizens to consider how their arguments impact their country’s war efforts. There’s room for debate as to whether that obligation still exists and, if so, where the line is drawn and how the interests of the state are balanced with freedom of speech.

Bradford repeatedly feeds into a variation of the sentiment, popular in military circles since the Vietnam era, that America is fighting a “limited war” with one hand tied behind its back while its enemy fights a “total war” with no constraints. His central premise is that the Islamist foe, notably the Islamic State and al-Qaeda, are fighting a “fourth generation war” on the field of battle but nonetheless “will prevail if they psychologically exhaust the West, inveigle its peoples into doubting the utility and morality of the war, make the price of victory exceed the costs, and compel its peoples to pressure their governments to abandon the fight.” In particular, Bradford contends, the Islamists are exploiting Western fealty to the rule of law and, especially, a law of armed conflict (LOAC) that evolved over centuries of fighting like-minded foes.

Building from this foundation — which is itself perfectly reasonable — Bradford argues in exhausting detail (the essay is 193 pages long and contains 774 footnotes) that prominent Western legal scholars are abetting this strategy by harping on violations of these rules while giving little attention to the fact that the enemy is not playing by them at all.

He notes that respect for the rule of law has been a core belief of Americans, especially the elites, going back to the Declaration of Independence and is central to its foreign policy. Therefore, “for America to be chastised for violations of law, or worse, branded a rogue and anomic regime, threatens the fundament of U.S. legitimacy.” Thus, mere allegations of LOAC violations — and especially charges by well-respected legal scholars that their country is fighting an illegal war — “directly assault American political will.” Further, Bradford argues, this is not an indirect effect but central to the enemy’s strategy:

This is precisely why Islamist strategists have orchestrated a two-dimensioned operational plan consisting of an information element — a PSYOP campaign — supported by a military element — the unlawful use of armed force — to convince Americans that the United States is an evil regime that elected to fight an illegal war against Islam, that the United States systematically commits violations of law in prosecuting this war, that U.S. crimes erode national security and destroy core values, and that the only way the United States can restore its moral virtue, recommit to the rule of law, and protect itself, is to withdraw in defeat.

Bradford here evokes the “stabbed in the back” mythos popularized by Colonel Harry Summers and other military apologists for the loss of the Vietnam War:

The most transparent example of the power of elite institutions to shape popular opinion as to the legitimacy of U.S. participation in wars is the traditional media. During the Vietnam War, despite an unbroken series of U.S. battlefield victories, the media first surrendered itself over to a foreign enemy for use as a psychological weapon against Americans, not only expressing criticism of U.S. purpose and conduct but adopting an ”antagonistic attitude toward everything America was and represented” and ”spinning” U.S. military success to convince Americans that they were losing, and should quit, the war. Subordinating reality to a “narrative,” journalistic alchemists converted victory into defeat simply by pronouncing it; Americans, sitting rapt at their televisions but lacking facts to gainsay the media version of events and as yet unaccustomed to doubting media personalities, accepted the verdict. When CBS Evening News anchor Walter Cronkite misrepresented the failed North Vietnamese Tet Offensive of January 1968 — an operational win for the U.S. — as a Communist victory,” the imprimatur of “the most trusted man in America” made it so.

Bradford’s rhetoric here is almost comically over-the-top. But his version of events has strong support in both military and national security circles.

From here, Bradford argues that “Islamists have identified strongpoints and force multipliers” to help them “attrit American political will” within “an interconnected government-media-academic complex” of “public officials, media, and academics who mould mass opinion on legal and security issues.” Bradford asserts that “Whereas these institutions and intellectuals once embraced values consonant with the society in which they root, over the past half-century they have sharply diverged.” Again, while this argument is strained, its basic premise is widely shared in military and conservative foreign policy circles.

Nor is Bradford mistaken in arguing that legal scholars at America’s most prestigious institutions are generally “regarded as neutral arbiters of truth dedicated to the pursuit of knowledge and above the American political and cultural fray.” While it greatly overstates things to say that “their pronouncements on all manner of subjects, including U.S. conduct in the war with Islamism, are received by the lay public as the essence of wisdom itself,” they doubtless shape public opinion substantially. Indeed, Bradford is likely right that those of us who question the way the United States has fought the war on terror have helped to undermine domestic support for the war effort — questioning everything from our use of torture and drones to the excesses of Abu Graib and Guantanamo — and that this helps the Islamists. In my judgment, that’s the price of living in a democracy. Bradford is simultaneously correct that the LOAC hampers our fight against an enemy that doesn’t abide by it and wrong in concluding that we should therefore abandon it.

Jumping from this premise, Bradford identifies “about forty contemptuously critical LOACA scholars” who have stood out in this regard “by proposing that LOAC restrictions on Islamists be waived to provide unilateral advantage, that Western states face more rigorous compliance standards, and that captured Islamist militants be restored to the battlefield, effectively tilt the battlefield against U.S. forces, contribute to timorousness and lethargy in U.S. military commanders, constrain U.S. military power, enhance the danger to U.S. troops, and potentiate the cognitive effects of Islamist military operations.” Furthermore, “rather than make good-faith legal arguments as to what LOAC does, does not, should, and should not require, offers up politicized arguments — against evidence and reason — that the Islamist jihad is a reaction to valid grievances against U.S. foreign policy.” Thus, Bradford contends, they are actively helping the enemy and thus should be targeted accordingly.

While the implication that we should execute these critics strikes me as nuts, it’s not that far down a slippery slope from actual U.S. policy during the war on terror. In the aftermath of the 9/11 attacks, Congress passed into law the USA PATRIOT Act, greatly increasing the discretion of the president and power of the agencies under him to go after those suspected of ties to terrorist organizations, both at home and abroad, while substantially curtailing judicial authority to check excesses.

Most notably, the Bush administration claimed the right to declare American citizens suspected of ties to al-Qaeda or the Taliban “illegal enemy combatants” and deny them the most fundamental civil liberties, including imprisoning them without trial or access to an attorney. Yaser Esam Hamdi was detained for almost three years without charge, until the Supreme Court ruled that he was entitled to due process. He continued to be held for several months after that ruling and only released on the condition that he renounce his citizenship, agree not to sue the U.S. government for its treatment of him, and agree to be deported to Saudi Arabia.

Hamdi, at least, was actually an enemy combatant, captured fighting against American soldiers in Afghanistan. Jose Padilla was arrested at a Chicago airport on suspicion of plotting a radiological bomb attack, held without habeus corpus as a material witness, and then declared an enemy combatant and held in a U.S. military prison despite having no military affiliation. Specifically, the president found “that Padilla was an enemy combatant who (1) was ‘closely associated with al Qaeda, an international terrorist organization with which the United States is at war’; (2) had engaged in ’war-like acts, including conduct in preparation for acts of international terrorism’ against the United States; (3) had intelligence that could assist the United States to ward off future terrorist attacks; and (4) was a continuing threat to United States security.”

Despite several judicial rulings that this exceeded the president’s constitutional authority (the U.S. Supreme Court declined to rule on this for technical reasons), he was denied access to counsel for two years. He was ultimately convicted on charges tangential to those on which he was held, namely that he had “participated in a South Florida-based al-Qaeda support cell that in the ’90s began to send money and people to wage holy war in Bosnia, Chechnya, Kosovo and Somalia.”

More than a decade after the 9/11 attacks, Bush’s successor, a former constitutional law professor at an elite university, authorized a fatal strike against Anwar al-Awlaki, a U.S. citizen “who had never been indicted by the U.S. government nor charged with any crimes,” for his role as an al-Qaeda recruiter and jihadist motivational speaker. (I should add that, while I have some misgivings about the rationale used and its potential implications, I support the specific decision in the killing al-Awlaki for reasons outlined elsewhere.)

And yet as Freedom House’s Arch Puddington and Thomas O. Melia note in their assessment of the impact on civil liberties of the war on terror,

It is important to point out that the setbacks to individual rights during the war on terrorism pose less severe threats to American liberty than those that arose during the major conflicts of the past. The United States has not declared a wholesale suspension of habeas corpus rights, outlawed political dissent, placed tens of thousands of nonwhite residents in domestic detention centers, ordered security services to conduct campaigns of surveillance against war critics, or blacklisted entertainers and academics who differed with the policies of the federal government. Nor has the government taken sweeping action against the press, despite article after article that revealed sensitive information about counterterrorism initiatives.

It’s noteworthy that Melia is now a Deputy Assistant Secretary of State in the Bureau of Democracy, Human Rights and Labor.

Thankfully, most of us agree that killing thinkers for the crime of pointing out the legal and moral flaws in U.S. war policy goes way beyond the pale. But most also accept that the exigencies of war sometimes require changes to business as usual, including some restrictions on otherwise fundamental rights and exceptions to otherwise sacrosanct moral principles. Bradford, presumably unintentionally, points to the absurd extreme. Where the actual line between the two is drawn, however, is subject to continuous debate. Bradford’s essay can help drive it.

Original article

Torture Doesn’t Work: The CIA Torture Report’s Long Shadow

The National Interest

December 11, 2014

Despite more than a decade of reports that the U.S. government had tortured high-level terrorist suspects, including a frank, if detached, admission from President Obama that the nation had “tortured some folks,” Tuesday’s release of the Senate study of the CIA’s detention and interrogation program was chilling. We learned that some interrogation techniques were “brutal and far worse than the CIA represented to policymakers and others.” And we found out that the CIA willfully and routinely misled, if not outright lied to, everyone from their own inspector general to the oversight committees of Congress and even the president of the United States.

Torture Doesn’t Work

Much of the first day discussion of the report centered on the finding that “enhanced interrogation techniques [were] not an effective means of acquiring intelligence or gaining cooperation from detainees.” Despite claims to the contrary from the CIA, Vice President Cheney and others, this is not new news. Decades of experience by police, military and intelligence interrogators around the world had made it clear long before the 9/11 attacks that the most effective means of extracting useful information from suspects is to win their trust. While physical and psychological torture will certainly get people to talk, the incentive created is to say whatever it takes to get relief.

The report demonstrates that this lesson was learned yet again. Almost all of the useful intelligence merely corroborated what was already known from legitimate interrogations and much of the intelligence that was gathered was simply wrong. Indeed, some of the most brutal torture led to the worst intelligence, including information that led U.S. forces to target innocents. And almost all of the touted terrorist plots that were allegedly “disrupted” on the basis of evidence obtained from torture were fantastical at best.

The Dilemma

That said, I’m troubled by the line of thinking promulgated by my fellow Wikistrat analyst, Daniel R. DePetris, at TNI:

. . . I believe we can all agree on one thing: the men and women of the Central Intelligence Agency immediately after September 11 were—and remain—in an unfathomably difficult position. The officers, analysts, scientists, and managers of the agency are expected to perform their jobs with the utmost perfection in incredibly rigid time constraints, and are expected to do so without making a mistake that could potentially hurt the strategic position of the United States or result in the deaths of Americans at home or abroad. And these men and women are mandated to do this every single day they trek to agency headquarters or start their workday in the one of hundreds of CIA stations located in dangerously hostile areas.

On the one hand, I wholeheartedly concur that our intelligence professionals are in “an unfathomably difficult position” and are asked to do an essentially impossible job with potentially deadly consequences. On the other, this is the same mindset that lets police get away with killing unarmed civilians with impunity. Those performing dangerous jobs protecting the public deserve our understanding; they shouldn’t be above our laws or immune from scrutiny.

Like Senator Dianne Feinstein, the outgoing chair of the committee who courageously released the report, despite bullying from the intelligence community, I “can understand the CIA’s impulse to consider the use of every tool to gather intelligence and remove terrorists from the battlefield.” But, as she rightly notes, “such pressure, fear, and expectation of future terrorist plots do not justify, temper, or excuse improper actions taken by individuals or organizations in the name of national security.”

Oddly, that notion was simply common sense not all that long ago. As a freshman cadet thirty years ago last summer, the laws of war were drummed into me even before I studied battlefield tactics or the capabilities of weapons systems. That military professionals had a sacred duty to protect noncombatants, treat surrendering enemy soldiers humanely, and otherwise uphold our laws and our values, even at increased risk to our own lives and those of the soldiers under our command, was simply a given.

Some have argued that 9/11 and the ensuing war on terror is different, because our current enemy doesn’t respect our laws and our values. But we’ve long fought enemies, including the Vietnamese and Japanese in living memory, who flouted the laws of war, especially against an enemy they considered racially or culturally inferior. Our standard remained unwavering. We followed our values, because they were our values, not because we expected reciprocity. But, as a bonus, we believed our enemies were much more likely to willingly surrender, rather than fight to the last man if they expected humane treatment.

What Now?

Nonetheless, while I frequently and publicly opposed the use of waterboarding, rendition and all the rest, even in the earliest days after 9/11, and even while strongly supporting the Bush administration, I fully understood why the people with the awesome responsibilities of safeguarding the nation in those days might have thought torture was “worth it.” Thus, I’m left in the untenable position of simultaneously believing that the Bush administration acted illegally in many cases and yet not thinking that Bush, Cheney, Yoo and company ought go to jail for these acts. Indeed, I share this odd position with the current administration.

The cynical explanation is that Obama is president now and he doesn’t want anyone second-guessing him down the road. But it’s also something much more: sitting in the big chair gives him an appreciation of how hard it is to fill. Indeed, more than a decade after 9/11, Obama himself is still making compromises with the law, including the Constitution, which he swore to uphold, in the name of safeguarding the Republic.

The nature of terrorism, like that of crime, frustrates the public and those charged with protecting its safety. In both cases, there is substantial pressure to “bend the rules” in order to safeguard the citizenry. The promulgation of extraconstitutional means for targeting gangsters, RICO as an obvious example, and the advocacy of torture to extract intelligence from terrorists differ only in degree.

Despite taking substantial risk in releasing the report, even Feinstein isn’t calling for much more than learning from the past. Aside from imploring her colleagues to formalize Bush and Obama executive orders limiting the worst of the abuses into the law in her introduction, the committee report offers no recommendations. Nobody is likely going to be held accountable in a court of law for torture under the circumstances.

The truth of the matter is that, as with drone warfare and other controversial tactics, the general public is much less concerned about torture than we pointy-headed intellectuals. Again, we’ve known the broad details about waterboarding, extraordinary rendition and the like for over a decade, and yet:

 - A 2005 AP-Ipsos poll found that 61 percent of Americans “agreed torture is justified at least on rare occasions.”

- An April 2009 CBS-NYT poll found 62 percent opposed to Congress holding hearings on the Bush administration’s treatment of detainees. Indeed, the same poll found that, while 71 percent believed that waterboarding is torture, a 46 percent plurality thought it was justified.

 - A June 2009 AP-GfK poll found that support for torture had actually increased since their 2005 survey, with 52 percent saying “torture can be at least sometimes justified to obtain information about terrorist activities from suspects,” up from 39 percent four years earlier.

Perhaps the consolidation of information into a single report, the increased perspective brought on by distance from the 9/11 attacks, or details about the creative use of hummus will change the public’s mind. But I rather doubt it.

If nothing else, CIA officials who lied to everyone from their own IG to the Office of the Director of National Intelligence to the FBI to Congress and the White House should be called on the carpet. There is, of course, a perversity in going after bureaucratic miscreants for lying about torture while letting the torturers themselves and leaders at the highest level who authorized torture to go free. But there’s simply no appetite for going after elected leaders who were overzealous in fighting terrorism.

And as outrageous—and, again, illegal under both U.S. and international law—as the acts of torture against terrorist suspects in our name were, they were at least relatively few in number and long-since discontinued. The notion of a rogue agency taking these actions of its own volition, willfully evading the myriad checks, balances and safeguards built into the system is ultimately even more destructive to our values.

Original article

Whack-a-Mole: Obama’s Real ISIS Strategy

The National Interest

September 12, 2014

Two weeks after declaring that he had no strategy for dealing with ISIS, President Obama declared his existing policy a strategy.

Given that he came to national prominence and won the presidency almost solely on the basis of having been alone among the serious Democratic aspirants to have opposed the Iraq War from the beginning and by promising to be the anti-Bush, it was remarkable how much it sounded like any number of foreign-policy speeches given by his predecessor. He declared again and again that, “As Commander-in-Chief, my highest priority is the security of the American people” and proudly enumerated all the ways that “we have consistently taken the fight to terrorists who threaten our country.” He noted that, “We took out Osama bin Laden and much of Al Qaeda’s leadership in Afghanistan and Pakistan. We’ve targeted Al Qaeda’s affiliate in Yemen, and recently eliminated the top commander of its affiliate in Somalia.”

After reminding his countrymen that we’ve ended Bush’s war in Iraq and are “drawing down our forces in Afghanistan,” he declared that, “Thanks to our military and counterterrorism professionals, America is safer.” The evidence for that was not provided and the notion is rather dubious in the context of a speech explaining why we’ve renewed hostilities in Iraq and why we need to double down.

The president is certainly right that “ISIL poses a threat to the people of Iraq and Syria, and the broader Middle East—including American citizens, personnel and facilities.” And it’s not implausible that, “If left unchecked, these terrorists could pose a growing threat beyond that region—including to the United States.”

Having previously admitted that his administration had no strategy to deal with this threat, Obama used the word multiple times in his short address. Initially, he declared that, “We will degrade, and ultimately destroy, ISIL through a comprehensive and sustained counterterrorism strategy.” It has four parts: “a systematic campaign of airstrikes against these terrorists” unimpeded by state borders; increasing “our support to forces fighting these terrorists on the ground” by sending an additional 475 service members to Iraq with a narrow mission of supporting “Iraqi and Kurdish forces with training, intelligence and equipment” in addition to “ramp[ing] up [our] military assistance to the Syrian opposition;” working with partners to isolate ISIS politically and economically; and expanding humanitarian assistance.

The president declared that, “This strategy of taking out terrorists who threaten us, while supporting partners on the front lines, is one that we have successfully pursued in Yemen and Somalia for years.” Yet, while the pursuit of that strategy has been marvelously successful, it’s by no means clear by what metric it’s actually been successful at counterterrorism. Indeed, Yemen-based Al Qaeda in the Arabian Peninsula and Somalia-based al-Shabaab are arguably the two most potent Islamist terror networks in existence despite—some say because of—our efforts.

Obama repeatedly promised that no Americans would be engaged in ground combat. That’s both in keeping with public sentiment and a perfectly reasonable constraint given how tangential the ISIL threat is to the American homeland. Yet, it’s unclear why “hitting ISIL targets as Iraqi forces go on offense” will somehow “ultimately destroy” ISIL. These are the same Iraqi forces that gave up large swaths of their country to ISIL rather than fight to begin with.

We had quite more than 475 American service members training and advising the Iraqi military for the better part of a decade, with no less than the vaunted General David Petraeus leading the mission at one stretch. Why is this time different?

Then there are the fabled “Syrian moderates” that the administration has alternately wanted to arm and not arm the past several years. But there’s no reason to think that they exist in any substantial number, much less that they’re somehow going to become an effective fighting force.

That leaves us with the Kurdish peshmerga, who are indeed disciplined, reliable fighters. But they’re hardly going to be sufficient to defeat ISIL on their own, even with American air power.

This “new” policy, then, is simply the logical continuation of Obama’s existing ISIL nonstrategy and, indeed, his general counterterrorism strategy of blowing up the bad guys and hoping they get tired of it eventually. We could call it theGlobal War on Terror, but, alas, that name’s been taken. Furthermore, it’s not at all obvious what more the United States can or should do to destroy ISIL. The threat to the homeland is too tangential at present to warrant the proverbial boots on the ground. So, it’s Whack-a-Mole with no end in sight.

But, ultimately, it’ll at best accomplish the president’s goal of degrading ISIL. As we’ve learned again and again, the only way to “destroy” such a movement is to change the political conditions that created it in the first place. That’s not achievable with airpower. Nor, as we saw in Iraq and Afghanistan, is it achievable even with a substantial American ground presence, unless we’re willing to invest far more time and resources than public opinion has been able to tolerate in the past.

Moreover, the president’s protestations notwithstanding, ISIL is much more than a garden-variety terrorist group. While they use terrorist tactics, they are functionally governing a territory larger than Jordan. They’re one of many offshoots of what amounts to a regional Sunni-Shiite conflict.

As such, our broader regional goals are mutually contradictory. Many of our ostensible allies in the conflict—notably Saudi Arabia, Iraq and Turkey—are effectively on the side of ISIL. We’re trying to isolate Iran, but partner with Shiite-dominated Iraq, its natural ally. Indeed we’re also working to oust Syria’s Assad regime, which, along with the mullahs in Tehran, is one of the regional powers most interested in getting rid of ISIL.

Given that our policy objectives are at cross purposes, it’s impossible to craft a strategy that will achieve them. And, as much as it may sound like it, that’s not a criticism of this president or even of U.S. foreign policy writ large. We’re a global superpower with overlapping interests that frequently don’t match up well with the geopolitics of the regions in which we have interests. We’re not going to choose between the Sunnis and Shiites any more than we’re going to choose between the Arabs and Israelis. But that means we’re going to continue muddling through from crisis to crisis, forced to “do something” about the worst of them, without resolving any of them.

As frustratingly ineffective as Whack-a-Mole is as a tactic—it ain’t a strategy—it may well be the best course of action available to us.

Original article

Ahmed Abu Khattala and the Miranda-Rights Question

Butch Bracknell and James Joyner

The National Interest
July 7, 2014

The September 11, 2012 attacks on U.S. diplomatic facilities in Benghazi, Libya were, according to U.S. law enforcement and intelligence sources, designed and led by Ahmed Abu Khattala, a Libyan jihadist. Recently, Khattala was captured by U.S. special-operations forces and transported to a U.S. Navy ship in the Mediterranean for debriefing, presumably by intelligence community (CIA and FBI) interrogators. Khattala was then transferred to FBI custody from military detention, even though he remained on the U.S. Navy ship for transit. He was flown off the ship and transported to the United States to answer a June 26, 2014 federal criminal indictment, alleging a single count of conspiracy to provide material support to terrorism. He remains in pretrial criminal detention after his initial appearance before a U.S. magistrate in the U.S. District Court for the District of Columbia on June 28.

Given the intensity of the political squabbling over how the Obama administration handled the Benghazi incident, there has been surprisingly little attention paid to Khattala’s arrest and detention. There has been unsurprising, yet irresponsible, insistence from some quarters that he be sent to Guantanamo Bay for extended detention as an unlawful enemy belligerent. The usual suspects have expressed concern that Khattala was turned over to law enforcement too quickly, allowing insufficient time to extract all the valuable intelligence he may have had to offer. Absent compelling evidence otherwise, we’re prepared to trust the judgment of intelligence professionals over grandstanding politicians on that score.

Our concern is the opposite one: that the intelligence interrogation may have violated Khattala’s due process rights, thus tainting the upcoming criminal trial. It is a longstanding principle of American law that the government may not use evidence gathered in violation of the United States Constitution against defendants in criminal cases. The Exclusionary Rule denies authorities the ability to use “evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment . . . improperly elicited self-incriminatory statements gathered in violation of the Fifth Amendment, [or] evidence gained in situations where the government violated defendants’ Sixth Amendment Right to Counsel.”

Nearly a century ago, the Supreme Court extended this principle with the Fruit of the Poisonous Tree doctrine, which renders evidence gathered as a result of bad conduct inadmissible in court. Since even if the direct evidence from an unlawful search or involuntary confession were excluded, investigators informed by that unlawfully obtained information would have a much easier time building a case, that evidence is usually considered tainted and inadmissible.

Yet Khattala’s handling follows a recent pattern of similar detentions. Ahmed Abdulkadir Warsame of Somalia was captured in April 2011 and interrogated shipboard for about two months before being offered a rights advisement. He later pled guilty in federal court and is awaiting sentencing. Sulaiman Abu Ghaith, a relative of Osama bin Laden, was detained in Jordan in 2013 and handed over to the FBI for transit to the United States, where he was convicted by a federal jury. Ghaith may have been interrogated by FBI and CIA personnel while in Turkish custody, prior to his arrest in Jordan and his subsequent rights advisement on the flight to the United States for judicial proceedings. In both cases, Miranda warnings were issued only after the intelligence community had conducted tactical interrogations designed to glean time-sensitive, perishable information that could be processed and analyzed for intelligence value.

Even those passingly familiar with American cop shows know that Mirandawarning rights attach the moment that law enforcement agents intend to question a suspect in their custody, post-arrest. Whether it was Lennie with a witty quip just before delivering Miranda warnings as he lowered a perp’s head into a squad car on Law and Order, or Andy Sipowicz growling rights advisements with disgust through clenched teeth as he unlawfully pummels a suspect after a collar, everyone is familiar with “You have the right to remain silent . . .” The rights advisement, which became standard law-enforcement practice after the U.S. Supreme Court issued Miranda in 1965, is intended to preserve suspects’ statements for admission into court by removing the taint of coerced confessions and infringements on the right against self-incrimination. In theory, after the rights advisement is delivered, a criminal suspect is on notice of his rights, and any statement he gives thereafter, in the absence of evidence of coercion or other interference with procedural rights, can be admitted in court as an admission. The right is so well established that it is etched permanently into American popular culture.

So why do these rights not attach the moment a terrorism suspect is detained, when he is ultimately haled before a U.S. court, the same as any other extraterritorial offender—like a bank fraud indictee arrested in the United Kingdom and extradited for trial, or a drug lord captured in Mexico and transported to the United States for trial?

Historically, they have. The FBI treated the defendants in the 1993 World Trade Center bombing case as pure criminal defendants. The Bush administration came somewhat close to the current approach in 2002 when it classified Jose Padilla—a U.S. citizen—as an enemy combatant under the Authorization to Use Military Force, claiming he was “closely associated with Al Qaeda” and had engaged in “war-like acts.” Rather than enjoying the full range of constitutional protections, he was questioned by intelligence community interrogators without Miranda warnings, and held in military brigs—rather than transported to Guantanamo. Eventually, he was “shifted” over to the criminal justice system where he was convicted of conspiracy and sentenced to seventeen years confinement at Supermax in Colorado. It’s likely, but not documented, that they used “clean teams” to question him and avoid tainting the evidence.

The construct employed by this administration is the erection of an imaginary, impermeable barrier between intelligence interrogation and law enforcement questioning for prosecution. This approach takes advantage of legal authority in the law of armed conflict to conduct post-capture tactical questioning and interrogation. Once the intelligence value of a detainee is thought to be mostly or completely exhausted, custody is transferred from the High Value Detainee interrogation team conducting law-of-armed-conflict interrogation to a criminal interrogation team, who then advise the detainee of his rights and attempt to question him. Some detainees will continue to talk, and some will take heed of the rights advisement. By design, none of the information in the “Stage 1” intelligence interrogation is used in court, nor is it shared with the law-enforcement team that conducts the prosecutorial interrogation. So long as the government can establish the sanctity and integrity of the wall separating the two processes, so the intelligence interrogation (with no Miranda warnings) does not taint the Mirandized interrogation process, which can yield confessions and statements against interest, there is no Miranda/self-incrimination issue. The statements taken post–Miranda warning are admissible as evidence of guilt. No federal court has yet held otherwise.

On principle, should American courts indulge the artifice of the “two stage” interrogation? Has Miranda matured as a civil right in the American legal system that the courts should look very dimly at government efforts to limit or marginalize this important personal civil right by artificially dividing its interrogations by the purpose for which each interrogation is conducted? What about the subjective expectations of the individual being questioned? Is it not reasonable for him either not to understand the Miranda warnings at all, or to miss their importance in dividing the interrogations into separate stages? Might the interrogee assume that since he was giving statements at Stage 1 (the intelligence interrogation), that he has no reason not to continue talking at Stage 2 (the criminal interrogation)? And if that is true, does that not chip away at the sanctity of the civil right represented by Miranda that Americans enjoy? By employing such sleight of hand for captured alleged terrorists’ interrogations, are we not undermining our own values represented by the protections engrafted onto our criminal justice system?

At issue also, of course, is the integrity of the barrier between the intelligence interrogation—a “lawful” interrogation under the law of war, but an “unlawful” interrogation for Miranda purposes—and the law enforcement interrogation. Is it not foreseeable that an overzealous intelligence agent, personally and emotionally offended by the actions of an alleged terrorist, might not tip the scales of the law-enforcement interrogators by tipping them off as to specific areas of inquiry, or specific facts that might be used by a skillful interrogator to gauge whether the defendant is being truthful in his responses to the criminal interrogation?

Existing judicial precedents provide some guidance. Neither the Exclusionary Rule nor its Fruit of the Poisonous Tree corollary are absolute. Among the situations in which evidence will not be excluded are if it was discovered from a source independent of the illegal activity or if there is attenuation between the illegal activity and the discovery of the evidence. The Obama administration would doubtless argue that the wall between the two stages of interrogation meets one or more of these exceptions. But, given the vagaries of highly classified proceedings, it would be next to impossible for Khattala’s attorneys to discover, much less prove, illicit collaboration between the intelligence and prosecution teams.

We presume that the intelligence community and FBI are, at least at the highest levels, being exceedingly scrupulous about the line, because the damage to this technique if they are caught violating the rules could be enormous. The more likely danger is when it is executed at the operator level; nobody planned on Abu Ghraib, either. But, even if all government actors maintain the highest level of fidelity to the law in practice, the opaqueness of the practice will always leave doubt.

Ultimately, these cases take us back to a longstanding debate in terrorist cases: the degree to which they are simply crimes to be adjudicated through existing law-enforcement practices or acts of war to be handled through military means and under the law of war. With Khattala, Warsame and Ghaith, the administration is trying to have it both ways. It is a clever theory that may prove to be untenable—legally and perhaps morally.

Original article

Risk-Terrorism Analysis

TCS Daily

August 21, 2006

Reason magazine science correspondent and TCS Daily contributor Ron Bailey argues that our fear of terrorist attacks is irrational, because you’re more likely to die of a car accident, drowning, fire, or murder. He concludes that, “with risks this low there is no reason for us not to continue to live our lives as though terrorism doesn’t matter — because it doesn’t really matter. We ultimately vanquish terrorism when we refuse to be terrorized.”

He’s right, of course. Then again, most of us already do that. Who among us isn’t living our lives more-or-less normally, scarcely giving the possibility of getting killed by terrorists a thought?

Indeed, the only time I can recall being personally worried about terrorism was during the reign of the DC snipers, who were randomly murdering people at gas pumps in the two surrounding counties where I was living at the time. Even then, I lived my life normally but was more wary than I normally would have been when purchasing gasoline. Of course, that was a specific, publicized, plausible threat in effect over a very short period of time. Were Malvo and Muhammad still on the loose, I suspect that fear would have simply faded into the background long ago.

I react to the fear of being murdered, mugged, falling, and so forth in the same way. That is, my radar goes up if I’m walking through a “bad neighborhood” at night or hiking on the edge of a cliff or otherwise in a specific danger situation. Presumably, most people do the same thing.

From a public policy standpoint, however, I’m not sure what to make of Bailey’s analysis. That the odds of dying in a terrorist attack are low does not mean that we should not try to prevent acts of terrorism, although it does suggest that we should allocate our resources rationally and limit the incursion into people’s personal freedom.

Unlike being struck by lightning or a meteor, terrorism and other murders are variable human actions, not random events. Taking reasonable proactive measures such as training and deploying police officers, locking one’s doors, and making prudent choices about the situations one places oneself in markedly lower the odds of bad things happening. Even though few planes are hijacked, it probably still makes sense to put secure doors on cockpits and ensure that passengers do not bring dynamite on board. Not only does doing these things make specific plane trips somewhat safer but doing so systematically makes hijacking less attractive as a terrorist endeavor.

At the same time, however, countermeasures can be excessive. Keeping passengers from taking nail clippers, toothpaste, and hair gel with them causes an inconvenience disproportionate to the infinitesimal gain in safety provided. Likewise, forcing people to arrive at the airport three hours early so they may stand in line to have their shoes checked for explosives is plainly silly.

It makes far more sense to harden targets and screen for likely terrorists than to treat all citizens as potential terrorists. It is conceivable, if not likely, that sophisticated terrorist groups like al Qaeda will adapt to this and ensure that operatives selected for such tasks look more like John Walker Lindh than Mohammad Atta. That means taking a scintilla more risk. The trade-off, though, would return a substantial measure of freedom to the traveling public and save billions in lost productivity. Further, we could reallocate the resources spent harassing little old ladies at the airport into intelligence efforts to catch actual terrorists.

That’s a trade-off I’ll gladly take.

Original article

Bombing to Lose: Why Israel failed in Lebanon


August 16, 2006

Just hours after the cease-fire with Lebanon took effect Monday, Israeli Prime Minister Ehud Olmert gave a speech to the Knesset acknowledging “deficiencies” in the way the war was conducted. Buffeted by critics on the left and right, he added that, “We will have to review ourselves in all the battles” and pledged, “We won’t sweep things under the carpet.” At the same time, though, he proclaimed that the Israel Defense Forces (IDF) had crippled Hezbollah as a “state within a state as an arm of the axis of evil” and that the “strategic balance” in the region had shifted against Hezbollah. President Bush agreed, proclaiming, “There’s going to be a new power in the south of Lebanon.”

Like O.J. Simpson’s search for the real killer, however, Olmert’s review begins with a false premise. By any meaningful measure, Israel lost this war. Wars, Clausewitz tells us, are fought to achieve political objectives. Intermediate military objectives—targets destroyed, enemy personnel killed, and so forth—are merely a means to an end. Reasonable people can debate whether the offensive created more terrorists than it killed, but it is beyond dispute that Israel ended up accepting a truce that falls far short of its original war aims.

Olmert and his planners appeared oblivious to the asymmetric strategic environment. Ralph Peters, a retired intelligence officer deeply sympathetic to Israel’s cause, noted early in the conflict that, “All Hezbollah has to do to achieve victory is not to lose completely. But for Israel to emerge the acknowledged winner, it has to shatter Hezbollah.” Unfortunately, as the editors of New Republic pointed out, “Israel can cripple Hezbollah, but it cannot destroy it, since Hezbollah is a movement with a social and philosophical foundation in its country; and Hezbollah will certainly never renounce its power or its philosophy, since it regards both as holy.”

That proved prescient. The evidence continues to mount that Hezbollah has emerged emboldened and with increased respect in the Arab world. The group was lauded as “The Best Guerrilla Force in the World” in a front page story in Monday’s Washington Post.

Hezbollah’s leader, Sheik Hassan Nasrallah, has claimed a “strategic, historic victory” and the group’s standing in Lebanon has been buoyed by its having stood up to the vaunted Israelis. Syrian President Bashar Assad said the region has changed “because of the achievements” of Hezbollah, and U.S.-supported political changes were “an illusion.”

Kuwaiti actor Daoud Hussein, appearing on al Jazeera television, proclaimed, “If there was just one Nasrallah in every Arab country—one person with his dedication, intelligence, courage, strength and commitment—Arabs would not have had to suffer stolen land and defeat at the hands of Israel for 50 years.” Anecdotal evidence suggests that view is widely held.

While even some moderate Arab governments initially conceded that the war was provoked by Hezbollah, Israel’s response was almost universally condemned as disproportionate and every civilian casualty was touted by the international media. From the beginning, as Williams College Middle East scholar Mark Lynch reported, scores of photographs of maimed children were filling the front pages of the region’s newspapers and “shaping Arab views towards the Lebanon crisis—particularly in the key anti-Hezbollah Arab states (Saudi Arabia, Jordan, Egypt).”

Politicians faced with the pressure to “do something” about terrorist strikes but unwilling to commit ground forces early or the risk a prolonged fight ignored the realities of panoptic war and appeared genuinely dumbfounded when they got hammered in the press for their tactics. By bombing civilian infrastructure, being indiscriminate in their targeting, and just being generally ham-handed, they played into the jihadists’ hands.

The Qana fiasco likely ended permanently any chance Israel had of winning the propaganda war, which, as conservative pundit Tony Blankley rightly noted, was crucial to winning the larger war: “[T]o the extent that defeating radical Islamism is enhanced by winning the hearts and minds of so far non-radical Muslims, corrosive world opinion against us only deepens the deep hole in which we currently find ourselves.”

Powerful states simply can not combat terrorists using the same tactics they would apply to a conventional war with a traditional enemy. Massive aerial bombardment and armored invasion are excellent for, say, toppling Saddam Hussein’s regime, but they’re actually counter-productive in counter-terror/counter-insurgency operations.

The editor of the Defense and the National Interest website explains “As important as finding and destroying the actual combatants, for example, is drying up the bases of popular support that allow them to recruit for, plan, and execute their attacks. Perhaps most odd of all, being seen as too successful militarily may create a backlash, making the opponent’s other elements of [4th generation warfare] more effective.” Robert Pape noted in his 1995 masterwork Bombing to Win: Air Power and Coercion in War that aerial bombing usually “generates more public anger against the attacker than against the target governments.”

Commando raids, which have the advantage of minimizing non-combatant casualties, and other precisely targeted strikes are simply much more reasonable and effective options in this environment. They of course take away some of the force multipliers enjoyed by modern armies and, ironically, make the fighting far less asymmetrical. Such tactics, too, may well mean more friendly casualties in the short term. They are, however, the only proven way of defeating insurgencies and terrorist groups.

Original article

Saddam and al Qaeda

Tech Central Station

June 18, 2004

The 9-11 Commission has issued “Overview of the Enemy,” its preliminary assessment of the al Qaeda network. Early press attention has focused on the conclusion that there was “no credible evidence that Iraq and al Qaeda cooperated on attacks against the United States.” However, as Troy University political scientist Steven Taylor notes, the early press coverage of the report elides a rather important distinction between “ties with al Qaeda” and “helped al Qaeda target the United States.” More importantly, though, the myopic focus on al Qaeda to the exclusion of its Islamist partners in terror is troublesome.

This paragraph has garnered all the attention so far:

“Bin Ladin also explored possible cooperation with Iraq during his time in Sudan, despite his opposition to Hussein’s secular regime. Bin Ladin had in fact at one time sponsored anti-Saddam Islamists in Iraqi Kurdistan. The Sudanese, to protect their own ties with Iraq, reportedly persuaded Bin Ladin to cease this support and arranged for contacts between Iraq and al Qaeda. A senior Iraqi intelligence officer reportedly made three visits to Sudan, finally meeting Bin Ladin in 1994. Bin Ladin is said to have requested space to establish training camps, as well as assistance in procuring weapons, but Iraq apparently never responded. There have been reports that contacts between Iraq and al Qaeda also occurred after Bin Ladin had returned to Afghanistan, but they do not appear to have resulted in a collaborative relationship. Two senior Bin Ladin associates have adamantly denied that any ties existed between al Qaeda and Iraq. We have no credible evidence that Iraq and al Qaeda cooperated on attacks against the United States.”

It should be noted, however, that the Commission also seemed to have demanded an inordinately high standard of evidence, unable to establish definitively, in their view, links between al Qaeda and a number of attacks long presumed to have been perpetrated by them:

§ “We have seen strong but indirect evidence that his organization did in fact play some as yet unknown role in the [June 1996] Khobar [Towers] attack.”

§ “Whether Bin Ladin and his organization had roles in the 1993 attack on the World Trade Center and the thwarted Manila plot to blow up a dozen U.S. commercial aircraft in 1995 remains a matter of substantial uncertainty.”

Given the nature of counter-terrorist intelligence, critics might argue that the Commission’s apparent search for proof that meets the reasonable doubt standard of the U.S. criminal justice system is unreasonable.

Saddam’s government was never the world’s foremost sponsor of terrorism. Iran and Saudi Arabia far outstripped him in that regard. Nonetheless, the fact that Saddam Hussein actively supported Islamic terrorists has been an article of faith since the Carter Administration. Indeed, Iraq was one of the original five states (along with Iran, Libya, Syria, and Cuba) on the original “Patterns of Global Terrorism” list compiled by the State Department in 1979. Saddam was a major sponsor of various terrorist groups, including the PLO, Hamas, and the Abu Nidal Organization.

The paper trail for the al Qaeda connection is more difficult to establish given the cellular nature of that organization and its recent provenance. Writing in TCS last September, Richard Minter observed,

“[M]any of those sniping at U.S. troops are al Qaeda terrorists operating inside Iraq. And many of bin Laden’s men were in Iraq prior to the liberation. A wealth of evidence on the public record — from government reports and congressional testimony to news accounts from major newspapers — attests to longstanding ties between bin Laden and Saddam going back to 1994.”

 Minter outlines — with twenty-three bullet points — details of proven contacts between senior al Qaeda leaders and Saddam Hussein or his representatives. Stephen Hayes notes that the Clinton Administration and many seasoned professionals of both parties believed Saddam and al Qaeda were connected. American Enterprise Institute scholar Michael Ledeen, an opponent of the Iraq War, asserted in 2002 that “a relationship with bin Laden is as close to certain as you can get in the world of clandestine operations.”

While links between Saddam and al Qaeda are long established, evidence of Saddam’s involvement in the 9/11 attacks has always been sketchy at best. The most compelling case has always rested on a meeting between 9/11 planner Mohammed Atta and Iraqi case officer al-Ani. At least one expert went so far as to argue that Atta received $100,000 that “probably funded at least part of the September 11 operation.” The Commission, as detailed in a separate report, “Outline of the 9/11 Plot,” now believes that meeting never took place.

“We have examined the allegation that Atta met with an Iraqi intelligence officer in Prague on April 9. Based on the evidence available — including investigation by Czech and U.S. authorities plus detainee reporting — we do not believe that such a meeting occurred. The FBI’s investigation places him in Virginia as of April 4, as evidenced by this bank surveillance camera shot of Atta withdrawing $8,000 from his account. Atta was back in Florida by April 11, if not before. Indeed, investigation has established that, on April 6, 9, 10, and 11, Atta’s cellular telephone was used numerous times to call Florida phone numbers from cell sites within Florida. We have seen no evidence that Atta ventured overseas again or re-entered the United States before July, when he traveled to Spain and back under his true name.”

There is little credible evidence that Saddam directly funded the 9/11 attacks. Given that the United States has occupied Iraq for over a year and that our intelligence agencies have had nearly three years to uncover such evidence, it is quite likely that there was no such connection. Nonetheless, we know that Saddam funded Islamist terrorists. We know that his government had significant and repeated contact with al Qaeda. Regardless, this is essentially a semantic debate. As terrorism expert Steve Emerson explains, the Islamist terrorist threat is singular; the particular name associated with a faction hardly matters:

“The dream of a world under Islam has engendered Muslim dissidents everywhere in the world over the last two decades. Almost every Islamic country has its own militant faction, often two or three. The Hamas of Palestine, Hizballah of Lebanon, the Islamic Salvation Fron (FIS) and Armed Islamic Group (GIA) of Algeria, An-Nahda of Tunisia, Al Jihad and al-Gama’at al-Islamiyya of Egypt, Lashkar e-Tayyiba of Pakistan, and the Abu Sayyaf Group in the Philippines and the Holy Warriors in Chechnya-all share the same goal of an Islamic world, or, as they refer to it, a Khilafah.”

 Jason Burke, writing in the May/June Foreign Policy, goes further, noting:

“The Arabic word qaeda can be translated as a “base of operation” or “foundation,” or alternatively as a “precept” or “method.” Islamic militants always understood the term in the latter sense. In 1987, Abdullah Azzam, the leading ideologue for modern Sunni Muslim radical activists, called for al-qaeda al-sulbah (a vanguard of the strong). He envisaged men who, acting independently, would set an example for the rest of the Islamic world and thus galvanize the umma (global community of believers) against its oppressors. It was the FBI — during its investigation of the 1998 U.S. Embassy bombings in East Africa — which dubbed the loosely linked group of activists that Osama bin Laden and his aides had formed as “al Qaeda.” This decision was partly due to institutional conservatism and partly because the FBI had to apply conventional antiterrorism laws to an adversary that was in no sense a traditional terrorist or criminal organization.

“Although bin Laden and his partners were able to create a structure in Afghanistan that attracted new recruits and forged links among preexisting Islamic militant groups, they never created a coherent terrorist network in the way commonly conceived. Instead, al Qaeda functioned like a venture capital firm — providing funding, contacts, and expert advice to many different militant groups and individuals from all over the Islamic world.

“Today, the structure that was built in Afghanistan has been destroyed, and bin Laden and his associates have scattered or been arrested or killed. There is no longer a central hub for Islamic militancy. But the al Qaeda worldview, or “al Qaedaism,” is growing stronger every day. This radical internationalist ideology — sustained by anti-Western, anti-Zionist, and anti-Semitic rhetoric — has adherents among many individuals and groups, few of whom are currently linked in any substantial way to bin Laden or those around him. They merely follow his precepts, models, and methods. They act in the style of al Qaeda, but they are only part of al Qaeda in the very loosest sense. That’s why Israeli intelligence services now prefer the term “jihadi international” instead of “al Qaeda.”

Obviously, Saddam was no Islamist. Saddam supported these groups, not because he believed in their cause — indeed, they would likely have turned on him at some point — but because doing so bolstered his standing in the Arab world and harmed his enemies, especially the Americans. In war, the enemy of my enemy is often my friend.

Original article