Sunday, January 22, 2012

In the Garden of Beasts: Love, Terror, and an Amer... by Erik Larson

Very interesting part of the book is when New York Jews, joined by American League of Labor, have a mock trial, and condemn Hitler.    Hitler and the Nazis do everything they can to stop the trial, and think FDR can order people not to do things.

Later in the same chapter, everyone wants FDR to openly, instead of the heavy diplomatic efforts, condemn Germany's treatment of Jews.    They are too worried though, how it will look when Hitler points out that in America we were lynching blacks and treating them very poorly.    Some Jewish groups also worry that to anger Hitler, would only increase his attacks on Jews, ( this was in 1934).     America was also worried about Germany reneging on big debts they owed us.

Arab Spring Failure or Success

Netanyahu seems to endorse the Syrian regime's approach to political protest. During the uprising in Egypt, he wanted the U.S. to stubbornly cling to Hosni Mubarak--who had cooperated with Israel on mutual security issues--as millions of Egyptians gathered in public squares across the country to demand democracy. But leaving that aside, the evidence for Netanyahu's pessimism now is that parties advocating an Islamic approach to politics have won pluralities in Egypt's first post-Mubarak elections. None of these parties have abrogated civil liberties or persecuted minorities or limited women's rights. Each party has promised to abide by constitutional processes. This may all be a ruse, and they may prove less liberal over time--some surely will--but there is little current evidence from which to draw the sweeping conclusions that Netanyahu did.

In fact, the growth of democracy in the Middle East is under substantial threat, but not from Islamic democrats. The threat arises from the lingering authoritarian impulse of those in power--from ruling political parties and from the military. Obsessed with political Islam, we are ignoring the real danger on the ground. 

Consider Egypt. While Netanyahu is fretting about Islamic parliamentarians, the Egyptian military has been busily consolidating its control. A few weeks ago, the government raided the offices of 10 civic organizations whose only mission is to promote democracy, the rule of law and civil rights. It accused a few of these groups, such as Freedom House and the International Republican Institute, of receiving funds from the U.S.

Egypt's military has used the traditional tools of authoritarian regimes to retain power--arrests, torture, military trials and scaremongering. In Iraq, six years after the country's first free elections, Prime Minister Nouri al-Maliki is using more unusual methods to cement his grip on the country. He has ordered the arrests of leading politicians--including his own Vice President (who comes from another sect and political party)--centralized the army and intelligence services and inserted his own party, the Dawa, into most of the major organs of government. Many Iraqis believe that Maliki refused to cut a deal with Washington so that American troops would have to leave Iraq and leave him unconstrained.

The most complex case is Turkey, where the former head of the military, General Ilker Basbug--one of 60 officers accused of a conspiracy to topple the democratically elected government of Recep Tayyip Erdogan--was arrested last week. These arrests are cited as one more piece of evidence that Turkey is turning away from its secular roots and toward Islamic fundamentalism.

Prime Minister Erdogan speaks in blunt ways and is a populist. But he has done nothing--no changes in laws or practices--to warrant the charge that he is dismantling secularism. In fact, Erdogan's government has passed more economic and political reforms than any other Turkish government in history. It has made unprecedented concessions to Turkey's Kurdish minority. In its quest to secure European Union membership for Turkey, Erdogan's AK Party has passed hundreds of pieces of legislation over the past several decades to make Turkey's political system conform to the guidelines set out by the Brussels bureaucrats. And by the way, the Turkish military has, over the years, planned and executed four coups against elected governments, so it is not inconceivable that it had been planning a fifth.

If there is a worry regarding Turkey, it is not about political Islam but about the autocratic tendencies of a wildly popular politician. Turkey has a highly authoritarian legal system, a legacy of its military era. (A human rights group notes that about half the nation's prisoners have never been charged with crimes.) And Erdogan, having won his third thumping electoral victory, has used this system to harass opponents, including politicians, journalists and generals.

In other words, the danger in the Middle East is not that Islam corrupts but that power corrupts. A more open and democratic system is no panacea, but it will begin to create a more normal, modern politics for the region, one that will allow for populism and demagoguery but also provide greater accountability, transfers of power and media oversight. And that will move the Middle East forward, not back. 

Monday, January 16, 2012

Assassinating American Citizens?
CONAN: This is an editorial from The Daily Beast by Richard Miniter: For the first time since the days of Abraham Lincoln, an American president has ordered the killing of a U.S. citizen, far from any battlefield or courtroom. And like Abraham Lincoln, Obama has saved the Constitution and the country by defending it against a nihilistic and narrow reading of the Constitution that would prevent the country from protecting itself.
Awlaki was an imminent threat to the lives of Americans and our allies. Based on Awlaki's links to two 9/11 hijackers, to the leadership of al-Qaida in the Arabian Peninsula and to jihad in America, there's no doubt he posed a continuing and urgent threat. As evidence accumulated of Awlaki's links to Major Nidal Hasan, the Fort Hood shooter, and Umar Farouq Abdulmutallab, the so-called underpants bomber, who planned to down a Detroit-based jet on Christmas day, and to the Times Square bomber, these developments only confirmed Obama's view that Awlaki was a clear and present danger.
The government of Yemen was not going to arrest him. And unlike bin Laden - excuse me, just a turning a page here. Unlike bin Laden, he moved constantly, meaning the Special Forces team would be going into a location they knew little about. And while Awlaki's protectors were numerous, hardened and well-trained, these those two factors increased the odds of a deadly failure, nor was there any reliable way to lure Awlaki to a place where he might easily be captured. The president was left with two hard options: ignore Awlaki or kill him in a way that minimizes civilian and American casualties.

Abroad and at home,
the U.S. goal must be to dispel al Qaeda’s narrative
that the United States is at war with Islam and
to prevent extremist voices from again hijacking
America’s relationship with the Muslim world.
The spate of recent terrorist incidents should not
lead the United States to jettison what has been
working and bring back “Global War on Terror”
rhetoric and practice that only serves to strengthen
al Qaeda’s hand. The Obama administration is on
the right track, but much remains to be done to
translate strategic commitments into operational
practice and bureaucratic reality.
National Security Strategy rightly warns of the need
to "resist fear and overreaction" in the face of terrorist
attacks and provocations.    The administration
should resist, and push back hard against, public
demands to respond to domestic threats by taking
actions that would alienate American Muslims and
threaten civil liberties; an example would be Senator
Joseph Lieberman’s suggested legislation to strip
suspected terrorists of their American citizenship.110

As terrorism analyst Evan Kohlmann puts it: “It
is increasingly second- and third-tier extremist social
networking forums managed by unaffiliated fringe
activists – many of them offering dedicated Englishlanguage
chat rooms – that appear to play pivotal roles
in the indoctrination and radicalization of some of
today's most notorious aspiring terrorists."107 The role
of English-speaking Internet jihadists such as Anwar
al-Awlaki feeds the fears that domestic radicalization is
a coherent new al Qaeda strategy to flood the American
homeland with a variety of plots from diverse individuals.
108 Maj. Nidal Hassan, the Ft. Hood shooter, was
connected to Awlaki, with evidence of considerable
contact over the Internet. A generation is emerging
of influential English-language recruiters for jihadist
groups, such as Awlaki from AQAP, Adam Gadahn for
AQC and Omar Hammami for Shabaab. This evolution
of the jihadist movement online should be carefully
monitored, though its significance should not be

There are some areas where al Qaeda has not yet
been able to establish a presence where one might
be expected, including Palestine, Syria, Lebanon,
several of the small Gulf states, Egypt, Turkey, Iran
and much of Southeast Asia. Its inability to gain a
foothold might be explained by the strength and
counterterrorism efforts of those states, by the
presence of a strong competing Islamist movement
or by a tacit or explicit modus vivendi. Al
Qaeda has a long-standing desire for a presence
in the Palestinian arena, for instance, but thus far
Hamas has prevented al Qaeda-like salafi-jihadist
organizations from establishing themselves in
areas under its control. Al Qaeda and salafi-jihadist
figures have engaged in an escalating war of words
with the Palestinian Islamist movement, slamming
Hamas for restraining attacks against Israel
and participating in democratic elections under
Israeli occupation. The weakening of Hamas – or
its “taming” through acceptance of a two-state
solution and pragmatic governance – may actually
improve al Qaeda's chances of obtaining its muchdesired
foothold in Gaza.98
89 An American-backed Ethiopian
military campaign ousted the relatively moderate
Islamist Transitional Federal Government in 2007,
creating renewed chaos that opened the door to
the more radical al-Shabab movement. Although
al-Shabab is not officially affiliated with al Qaeda, it
reportedly has received training and support from

What Does the NDAA really do?


some highlights

Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.”

Does the NDAA expand the government’s detention authority?

Nope. Under current law, the Obama administration claims the authority to detain:
persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

They are almost verbatim the same. The NDAA is really a codification in statute of the existing authority the administration claims. It puts Congress’s stamp of approval behind that claim for the first time, and that’s no small thing. But it does not–notwithstanding the widespread belief to the contrary–expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect.

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either. Congress ultimately included language in the NDAA expressly designed to leave this question untouched–that is, governed by pre-existing law, which as we explain below is unsettled on this question.

Does it mandate military detention of terrorist suspects?

Not really, though both supporters and critics seem quite sure that it does.

Is there anything in the NDAA about which human rights groups and civil libertarians ought to be pleased?

Yes, actually, there is.  Section 1024 of the bill, as we’ve noted, requires that people subject to long-term military detention in circumstances not already subject to habeas corpus review–think the Detention Facility in Parwan, Afghanistan–henceforth shall have the right to a military lawyer and a proceeding before a military judge in order to contest the government’s factual basis for believing them to be subject to detention.  This is an extraordinary and novel development.  Detainees in Afghanistan currently have access to the Detainee Review Board process, which as described in this article already provide a relatively robust screening mechanism, particularly compared to years past.  The DRB process does not include lawyers and judges, however, and human rights advocacy groups have criticized them on this ground.  Requiring lawyers and judges to staff out the screening process is a pretty remarkable shift in the direction of accomodating those concerns.
What’s more, while human rights groups have decried the codification of detention authority, the codification does preclude certain interpretations of the AUMF that human rights groups hated. For example, while the difference between the D.C. Circuit’s embrace of the “purposefully and materially support” standard and the administration’s language seems pretty slight, the D.C. Circuit language did–which the NDAA now jettisons–keep critics up at night. And the D.C. Circuit famously flirted in one case with the notion that international law does not inform or limit detention authority under the AUMF–a position that the explicit references to the “law of war” in the NDAA seems to reject.
In short, the bill is a mixed bag–almost no matter what vantage point one examines it from.

Sunday, January 15, 2012

Quote of the Day

aequam memento rebus in arduis servare mentem

"Remember to keep a clear head in difficult times."

Failure of Radical Islam

The Return of the Old Middle East

How to Win at Balance-of-Power Politics
F. Gregory Gause III
March 12, 2009

After the overthrow of the Shah in 1979, Ayatollah Ruhollah Khomeini hoped that the Islamic Revolution would spread beyond Iran's borders. He had some luck in Lebanon -- where Iran created Hezbollah after the Israeli invasion of 1982 -- and elsewhere. But Khomeini's revolution had limited appeal, and ultimately, no Arab government fell to a sister revolution. Saddam, who played an important role in checking Iran's power, learned a similar lesson during the first Gulf War in the early 1990s. He combined Arab nationalism with Islamism to try to create instability in Arab states that had joined the coalition against him. He failed.

Thursday, January 12, 2012

Gitmo and Nuremberg

Talk of the Nation  [ Excerpts]

In Justice and the Enemy: Nuremberg, 9/11, and the Trial of Khalid Sheikh Mohammed, William Shawcross

"Nonetheless, there were restrictions on ... those defendants' rights. And in all the debate about Guantanamo and military justice in the United States today, I think it's worth making the point that any Nazi in the dark at Nuremberg who was suddenly transported by time machine to Guantanamo would be astonished at the privileges and the access to human rights lawyers and the amazing efforts that were made on his behalf by ... the defense lawyers in Guantanamo. None of that existed in Nuremberg.
"It was a fair trial, but the defense lawyers were all Nazi lawyers who were seconded by the occupying authorities, the British and the Americans and the Russians and the French. But the law has gone a long ways since then. And the Guantanamo defendants, Khalid Sheikh Mohammed and the others, will have much, much more chance of their day in court than the Nazis did."
 In the case of these trials in Guantanamo, I think the important thing to stress, again, is that anyone convicted in Guantanamo in a military tribunal, where, you're absolutely right, the defense lawyers and the judges are military men, anyone convicted there will still have the right of appeal through the federal criminal civil process. So I think that is a great safeguard.
Also, I think one should point out that in all the military trials that have taken place so far since 9/11, the defense lawyers assigned to the terrorists on trial, or the alleged terrorists on trial, have all been extremely diligent on behalf of their clients. They have not been craven. They have not been saying, I won't get promoted if I do my job properly.
On the contrary, the Supreme Court judgments that were reached against the government in the middle part of the last decade after 9/11, were all forced - taken all the way to the court, if you like, by military defense lawyers.

"The important thing about the military courts now is that anyone convicted in a military court in Guantanamo will have the right of appeal right up to the Supreme Court. So he has basically the same rights of appeal as anyone convicted in a federal court. So that, I think, is a vastly important safeguard. In Nuremberg, there were no rights of appeal whatsoever. The judgment of the tribunal was final.
"One should point out that in Nuremberg, of the 22 people who were on trial, I think it was 14 were sentenced to death, six or seven were given long imprisonments, and two or three were released. So justice, I think, was done fairly in Nuremberg, and I'm sure it'll be done here the same.
And in all the debate about Guantanamo and military justice in the United States today, I think it's worth making the point that any Nazi in the dark at Nuremberg who was suddenly transported by time machine to Guantanamo would be astonished at the privileges and the access to human rights lawyers and the amazing efforts that were made on his behalf by the military defendants – the defense lawyers in Guantanamo. None of that existed in Nuremberg.
And the chief American prosecutor - Robert Jackson's successor, if you like - is a remarkable American officer, General Mark Martins, who until recently has been administering the law of - the rule of law campaign in Afghanistan, trying to bring law through Afghan judges and prosecutors and defenders to Afghanistan – to villages in Afghanistan throughout the area controlled by the United States.
And he's a very fine man. And he's now been appointed chief prosecutor, as I say, direct successor to Justice Robert Jackson. It's a remarkable position to be in.
And I heard, actually, a lecture he gave in New York last week - last night - in which he spoke very eloquently to the New York Bar Association about the way in which justice will be done and be seen to be done in Guantanamo. And I think that he's a very fine prosecutor and that one can have confidence that in his hands the prosecutions will be carried out both robustly and judiciously and fairly.

"Justice delayed is often said to be justice denied. And it has been a very long time, too long a time ... And part of it is because of the way in which the first military courts set up by the Bush administration were overturned by the Supreme Court in the famous case of Hamdan v. Rumsfeld ...
"And then when Obama came into office, he originally said we will have no military commissions, no military trials whatsoever. And ... throughout his time as senator and ... campaigning for the presidency, he had condemned much of the Bush administration's policies during the war on terror, including the use of military tribunals.
"Now, however, [Obama] has come to the same position as President Bush on most of these issues and [has been] forced to accept the reality of military commissions in some cases — not in all. Most of the terrorist cases will probably still be carried out in federal courts, but there will be some cases, like Khalid Sheikh Mohammed, which the administration has decided — rightly, I think — should be conducted in military commissions."
SHAWCROSS: Well, that's not quite correct. What happened, there was a trial of a man called Ghailani who was implicated in the terrible bombings - the al-Qaida bombings of U.S. embassies in east Africa in 1998. And his trial took place last year in Manhattan. And he had been harshly interrogated.
And the judge - Judge Kaplan - in the case, said all the fruits of the poisonous tree - by which he meant the information that had come out as a result of his harsh interrogation - will not allowed in this case. And it was not allowed.
And nonetheless, he was, even in a federal court, convicted. In the case of - he wasn't convicted of mass murder, as he should've been, I believe, but he was convicted of destroying government buildings, which wasn't very satisfactory, has to be said, to the families of the victims.
Nonetheless, it was a conviction and the judge gave him the maximum sentence, quite rightly, as a result of it. in the case of Khalid Sheikh Mohammed, General Martins has made clear that he was, as we all know, he was subjected to enhanced interrogation...

SHAWCROSS: I think that the civilian courts have shown themselves to be able to deal with most of these cases now. And it has been difficult. There's - one of the cases that I quoted just now, Gailani, it was nearly lost. That government's case was nearly lost because one recalcitrant juror held out. He was called, you know, the famous phrase from movies and everything else, of a rogue juror. And one juror on that - in that jury wanted to find him, Gailani, not guilty on every charge.
And in the end, the compromise was that he was not - he was found not guilty of murdering several hundred people - mostly Africans it has to be said, not American citizens - who were killed in the bomb blasts in Kenya and Tanzania, but found guilty only of blowing up government - damaging government buildings, which is a bit of an absurd situation. And I think in the military court, he probably - though one doesn't know this - had been found guilty of the real crime that he was involved in, which was mass murder.

COLIN: Good morning. My concern with the commissions, no matter who the judges are, is that they are still judges, particularly military judges, who are career officers, whose incentives probably are not going to be inclined towards a finding of innocence or not guilty.
This is a problem with legitimacy that seems to be the same problem that the British government had with prosecuting IRA terrorists in the 1980s, that the suspects did not have the right to a jury trial. Are we really going to have a perception of legitimacy to the whole proceedings if detainees do not have the same right to a jury trial that U.S. citizens enjoy?
CONAN: In Northern Ireland, Williams Shawcross, the concern was that juries would be intimidated by the Irish Republican Army, among others, and thus the special courts that were set up there. But they did, indeed, come in for considerable criticism.

SHAWCROSS:  You're absolutely right to bring it up, because these eight Nazi saboteurs, all of whom who'd lived in the United States in the 1930s and then gone back to Germany. And two of them were American citizens. They were landed by submarine on the coast of Long Island and Florida in 1942, and they were rounded up pretty quickly. Two of them actually surrendered and gave information on the others. But Roosevelt was absolutely furious and demanded a military commission and basically demanded execution.
He said to his attorney general, Francis Biddle, he said I want one thing clearly understood, Francis. I won't give them up. I won't hand them over to any U.S. marshal aimed with a writ of habeas corpus. Understand?

SHAWCROSS: Well, that's a difficult question. I'm not a great admirer of Noam Chomsky. I think his anti-Americanism is frankly grotesque. I have a very different view. I think the United States, despite as you say the support that we give you and we, the British, and all of Western Europe and all of the whole democratic world give to regimes like the Saudi regime because we are dependent upon oil, I, nonetheless, I think the United States has done immense good in the world in the last century.
Indeed, in 1945, you could say that the U.S. Army was the greatest human rights organization that the world had ever seen. It did release millions of people from tyranny and slavery. And I think that the U.S. Army continues to do that, and millions of people all over the world since 1945 have been freed by the U.S. Army and the blood and treasure spilt by Americans. And I think it's a tribute, which is not adequately and often enough pay to the United States.
It's very fashionable in the rest of the world to criticize America for its mistakes, which, of course, have been made and there were mistakes made following 9/11. But - there's no question about that. But there is no greater guarantee of peace and progress in the world than the United States, in my view.

Monday, January 2, 2012

NDAA Obama and Anthony Romero

President Obama's action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” said Anthony Romero, executive director of the American Civil Liberties Union.
Needless to say, Romero is a fool.

The following are some notes I highlighted from an article at opinionjuris

The Bad

Funds for Gitmo to close are gone.

Even so, enactment of section 1022, ambiguous and potentially toothless though it may be, is not without costs. 

The Good

It is also worth emphasizing, however, that the Obama Administration, civil liberties and human rights organizations, and some members of Congress worked tirelessly and quite effectively to improve the final bill dramatically from the versions the Senate and (especially) the House had earlier passed. Because of those efforts, Subtitle D of the NDAA is not nearly as problematic as many critics have suggested.  Indeed, the final bill actually contains a handful of provisions that improve upon current law, and one—which will be our focus here—that helps to resolve an important interpretive debate about whether the Executive’s detention authority under the 2001 Authorization for Use of Military Force (AUMF) should be informed and limited by the laws of war.

What is more, those robust efforts to improve the legislation resulted in several provisions that will be distinct improvements vis-a-vis the status quo.
     - being able to send Gitmo people home