Author: John Glaser

Spencer Ackerman has a great piece up at the Guardian exploring what is likely to happen to the government’s legal justification for holding people under indefinite detention at Guantanamo Bay once the U.S.’s combat operations in Afghanistan are over in December. The detention system exercised by the Bush and Obama administration, according to Ackerman, “may grow legally tenuous after December.”

Notably, numerous human rights groups intend to challenge the Gitmo system anew after December:

“US courts might go further. Once there is no battlefield, what ‘war’ is left?” said Andrea Prasow of Human Rights Watch.

“I’m not confident that federal judges will continue to authorize detention even for people allegedly associated with al-Qaida, and less so for those amorphous ‘associated forces’. And I don’t think the Obama administration is [confident], either.”

Wells Dixon of the Center for Constitutional Rights said his organization intended to bring lawsuits after December for the release of Guantánamo’s Afghans and Yemenis whom the Defense Department no longer believes pose an ongoing security threat.

“It’s classic arbitrary detention, which will be brought into starker relief as we get closer to the end of combat operations in Afghanistan. So we anticipate filing motions for release on behalf of these cleared detainees,” Dixon said.

Post-9/11, the justification for locking people up indefinitely without charge or trial has come from the 2001 Authorization for the Use of Military Force (AUMF). Despite the fact that Obama has publicly announced his desire to repeal the AUMF, the administration continues to rely on the AUMF to justify indefinite detention for a remaining 154 detainees at Gitmo and another 50 or so under U.S. detention in Afghanistan. And once (if?) the AUMF is repealed, Obama has a back up plan:

Effectively, the AUMF unties wartime operations, including detention, from a time or a place and hinges them on membership or association with al-Qaida. In a speech in May 2013, Obama announced his intention to “ultimately repeal” its mandate, although tangible progress toward that goal is difficult to discern.

Caitlin Hayden, a spokeswoman for the National Security Council, pointed to both the AUMF and Congress’s defense authorization for the 2012 fiscal year as providing the necessary authorities for future detentions, while noting Obama’s desire to repeal the AUMF.

Ah, yes, that dastardly NDAA provision that grants the state the power to indefinitely detain individuals, including U.S. citizens, suspected of allying with or supporting “terrorists.” While Gitmo is still thought of as a legacy of George W. Bush, I suspect the indefinite detention provisions in NDAA will go down as one of the most notorious Obama legacies.

In late 2012, Judge Katherine B. Forrest blocked the government from enforcing the NDAA provision on grounds that they violate Constitutionally guaranteed rights to due process. She concluded that the NDAA law appears to permit the President “to use all necessary force against anyone he deems involved in activities supporting enemy combatants, and therefore criminal laws and due process are suspended for any acts falling within the broad purview of what might constitute ‘substantially’ or ‘directly supporting’ terrorist organizations. If this is what Congress in fact intended,” she said, there is “no doubt it goes too far.”

In response, the Obama administration immediately appealed Forrest’s ruling, asking for an “immediate stay,” or suspension of the case’s proceedings. When Forrest denied the request, the government went to the Second U.S. Court of Appeals in Manhattan and asked another judge for an emergency stay, which Judge Raymond J. Lohier granted.

President Obama has always slyly tip-toed around the issue of indefinite detention. His alleged attempt to shut down Gitmo in his first term was a poor effort and, even if successful, would only have been symbolic since his intention was to move the whole system of indefinite detention to American soil. Now he says he wants to shut Gitmo and repeal the AUMF, but is scheming to maintain (and even expand) the War on Terror-type justifications for indefinite detention and suspension of due process rights. The posturing has always been disingenuous. To me, though, it looks like it may just be successful.

The people being targeted in the Obama administration’s drone war are “suspects” who deserve due process, renowned linguist and political radical Noam Chomsky said during a talk at Google this month.

There’s a debate in the United States, Chomsky said, about the legitimacy of President Obama unilaterally targeting American citizens, like Anwar al-Awlaki, for assassination by drone. And “there’s some talk about collateral damage – you know, what about the people that are just standing around that get killed? Well, yeah, that’s bad. But what about the people you’re aiming at? They’re suspects.”

“The core concept developed in the Magna Carta was what we call ‘presumption of innocence,'” Chomsky explained. “What it stated is that a free man cannot be subjected to state punishment without due process, without trial by a jury of peers.”

“The drone campaign eliminates presumption of innocence,” Chomsky argued. “The way it works is, Obama and his advisers get together Tuesday morning and decide who they’re going to kill that day – the concept ‘guilty’ means, ‘Obama decided to murder you.'”

The fundamental question, according to Chomsky is: “Why should the state have the right to determine unilaterally who is a terrorist? Do they have that right? No, they don’t. Do they have the right to murder people who they put on the terrorist list? No, they don’t.”

Chomsky also mentioned the suit he and several others are involved in that challenges the National Defense Authorization Act (NDAA), which includes provisions that “extend the principle of indefinite detention of suspects…and it is written in such a way that it could include American citizens, [although] it’s not explicit.”

Chomsky said he thinks the case is actually “way too narrow,” since it focuses only on the question of whether this principle of indefinite detention for suspects extends to U.S. citizens.

“There should never be such a thing as indefinite detention. It’s criminal. And the idea of supporting enemies is so meaningless that such a concept shouldn’t exist in law.”

You can view this section of the talk below:

Anthony Gregory wrote a wonderful book on this subject called The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror. David S. D’Amato wrote an excellent review for the Future of Freedom Foundation here.

Whenever the U.S. gets outraged by the actions of another state, be prepared for elaborate displays of self-deception and hypocrisy. This has surely been on display in the case of the latest outrage in Russia’s annexation of Crimea and meddling in Ukraine.

At the Cato Institute’s blog yesterday, Ted Galen Carpenter reiterated a point I’ve made here repeatedly, that Washington’s supposedly principled denunciations of Russia’s actions are wildly inconsistent with the strong defense of comparable actions taken by the U.S.

U.S. officials scarcely miss any opportunity to denounce Russia for severing Crimea from Ukraine and then annexing the peninsula. Yet Washington’s own track record regarding respect for the sovereignty and territorial integrity of countries is inconsistent, to say the least. Critics have noted that the position the United States and its NATO allies adopted toward the issue of Kosovo is at sharp variance with the current denunciation of Moscow’s conduct in Crimea. Not only did NATO launch an air war against Serbia to detach one of its provinces in 1999, but it proceeded to encourage and defend Kosovo’s subsequent unilateral declaration of independence in 2008 from what had become a fully democratic Serbia.

The insistence of U.S. officials that the Kosovo situation was unique and, therefore, did not set any precedent, barely passed the laugh test. Russia explicitly cited Western policy in Kosovo for its own actions in Georgia, detaching two of that country’s secessionist-minded territories, South Ossetia and Abkhazia, later in 2008. More recent efforts by staunch critics of Russia’s amputation of Crimea to argue that Western actions in Kosovo were entirely different are scarcely more credible than Washington’s original justifications. The reality is that the Kosovo, Georgia, and Crimea episodes were all acts of aggression.

Cyprus is another case that undermines Washington’s professed reverence for the territorial integrity of nations. NATO ally Turkey invaded the island in 1974 and proceeded to occupy the northern 37 percent of Cypriot territory. At the very least, the U.S. government looked the other way while its ally committed a blatant act of territorial theft. And a provocative new book, Kissinger and Cyprus: A Study in Lawlessness, by former Nixon Administration official Eugene Rossides, makes a solid case that the administration aided and abetted Ankara’s aggression.

It is important to note just how ubiquitous this hypocrisy is. Even the mildest forms of nationalism virtually require one to ignore the crimes of ones own government, even while vociferously condemning similar crimes committed by other governments. This goes back for as long as the United States has existed and the same hypocrisy can be found in every country.

In 1915, while he was slowly trying to coax Americans into intervening in World War I, President Woodrow Wilson condemned the European belligerents by referencing America’s “principles of right and liberty” which lead us to “resent, from whatever quarter it may come, the aggression we ourselves will not practice.”

To Wilson almost 100 years ago, aggression and annexation was the antithesis of America. Never mind that we had just completed the conquest of the West, which included annexing Texas under false pretenses and ethnically cleansing Native Americans every step of the way. Disregard that only a few years before Wilson uttered these words, the United States intervened against the Spanish in Cuba and tried to annex the island, in the end forcing the Cubans at gunpoint to enshrine in their constitution permission for U.S. military domination. Following that, the U.S. went to war in the Philippines in a vicious colonial experiment waged for cynical geopolitical interests. Inclusive estimates that account for excess deaths related to the war say there were as many as 1 million casualties, mostly civilians.

None of this could penetrate Wilson’s blind faith in American Exceptionalism. Belligerence, aggression, colonialism, annexation, etc…these were things only other governments engaged in. Not America.

So when Barack Obama, John Kerry, and countless members of Congress condemn Russia for meddling in Ukraine and pretend not to know that the U.S. has committed much worse crimes in its very recent history, they are continuing a tradition that goes way back. Russia, they say, has no respect for international law or Ukraine’s territorial integrity. Never mind that the U.S. has so consistently violated international law and the territorial integrity of other states that it is impossible to even talk about U.S. foreign policy without acknowledging it.

Some say an honest reckoning of the history of U.S. crimes would invalidate Washington’s condemnation of Russia. And they are right.

The one idea interventionists have to solve the Syrian conflict is to eliminate the Assad regime. Regime change is the solution to the humanitarian calamity, they reason, because the Assad is the one doing all the killing. As Sen. John McCain has repeatedly yelped, “The fact is Bashar Assad has massacred 100,000 people.”

Actually, he hasn’t. According to SOHR data cited by Micah Zenko and Amelia M. Wolf of the Council on Foreign Relations, “most of the reported deaths in Syria have not been committed by forces under Bashar al-Assad’s command.”

While noting “the potential bias and the methodological challenges” of the data, Zenko and Wolf show that, despite depictions of the Syrian civil war as a regime indiscriminately killing its civilians, “more pro-regime forces than civilians have been killed during the Syrian civil war.”

There are two noticeably provocative elements of SOHR’s estimates. First, while estimates for rebel force casualties were a separate category in SOHR’s previous estimates, SOHR has now included rebel force casualties (24,275) within civilian casualties, totaling 75,487. Above, rebel forces have been listed separately, which reveals that, according to SOHR’s estimates, more pro-regime forces than civilians have been killed during the Syrian civil war.

The Syrian civil war is a messy, multi-sided conflict in which civilians have been killed by all sides and in which combatants make up most of the reported deaths. Zenko made this same point back in September, when an earlier data set on the Syrian death count was released. “The types of interventions that proponents have endorsed for Syria…have almost nothing to do with how Syrian non-combatants are actually being killed,” he wrote.

Obviously, this does not excuse the Assad regime’s many war crimes or lessen its evil brutality, which does include killing and torturing civilians. But the indexed estimated death count paints a very different picture of the conflict than the one described by Washington’s most vocal interventionists. A common policy proposal to mitigate the mass suffering in Syria is for the U.S. to help the rebels and undermine the Assad regime, a scheme that just becomes ludicrous after looking at the data.

Update: This post should be absorbed along with the news that Syrian opposition fighters now have U.S.-made anti-tank missiles given to them by Saudi Arabia with Washington’s consent.

Kudos to Democracy Now for covering this:

When faced with ideas of non-intervention in foreign policy, the most common refrain among hawkish Republicans is that such notions are naive, immature, unrealistic, and “wacko.” In reality, it is the foreign policy worldview of the Republican establishment that has been thoroughly discredited as naive and unrealistic.

What is most odd is that the right-wingers on the attack against the small libertarian-leaning wing of the party that opposes rabid interventionism seem thoroughly unaware that what they call “naive” foreign policy is actually backed up by history and much of academia.

Rich Lowry, Editor of National Review, is miffed by Rand Paul’s foreign policy ideas. Rand’s “instincts,” Lowry writes, “sometimes seem more appropriate to a dorm-room bull session than the Situation Room.”

Specifically, Lowry is upset about a YouTube video from 2008 that resurfaced depicting Paul skewering Dick Cheney and his motivations for the invasion of Iraq. Here are the key excerpts:

There’s a great YouTube of Dick Cheney in 1995 defending [President] Bush No. 1 [and the decision not to invade Baghdad in the first Gulf War], and he goes on for about five minutes. He’s being interviewed, I think, by the American Enterprise Institute, and he says it would be a disaster, it would be vastly expensive, it’d be civil war, we would have no exit strategy. He goes on and on for five minutes. Dick Cheney saying it would be a bad idea. And that’s why the first Bush didn’t go into Baghdad. Dick Cheney then goes to work for Halliburton. Makes hundreds of millions of dollars, their CEO. Next thing you know, he’s back in government and it’s a good idea to go into Iraq.

Paul continued:

The day after 9/11, [CIA chief] George Tenet is going in the [White] House and [Pentagon adviser] Richard Perle is coming out of the White House. And George Tenet should know more about intelligence than anybody in the world, and the first thing Richard Perle says to him on the way out is, “We’ve got it, now we can go into Iraq.” And George Tenet, who supposedly knows as much intelligence as anybody in the White House says, “Well, don’t we need to know that they have some connection to 9/11?” And, he [Perle] says, “It doesn’t matter.” It became an excuse. 9/11 became an excuse for a war they already wanted in Iraq.

Detractors like Lowry condemn Paul for arguing Cheney pushed for the invasion of Iraq solely to benefit Halliburton. That doesn’t really seem to be what Paul was saying. He seemed to be making the rather benign observation that Cheney’s experiences working the “revolving door” of government-corporate-military-energy sector over many years probably had a deep affect on his foreign policy views.

And the latter point about how the Bush administration cobbled together unrelated evidence post-9/11 in order to pursue a war in Iraq that had already been decided upon irrespective of real evidence is just about as accepted a take on early Bush policy as there is.

Paul Pillar, who was head of the CIA’s MidEast division during the march to war, has spoken extensively on this point. He has explained that “a policy decision clearly had already been made [to invade Iraq],” and “intelligence was being looked to to support that decision rather to inform decisions yet to be made.” This was the impression of the Bush administration’s counterparts in Britain, as well, as the famous Downing Street memo showed (“the intelligence and facts were being fixed around the policy”).

But Lowry’s beef with Rand Paul’s foreign policy doesn’t end with these Iraq comments:

Continue reading “Discredited Conservatives Attack Rand Paul’s Foreign Policy as Naive”