Did Obama Really End the Iraq War?

By MAX BOOT   WSJ

The popular explanation is that the Iraqis refused to provide legal immunity for U.S. troops if they are accused of breaking Iraq's laws. Prime Minister Nouri al-Maliki himself said: "When the Americans asked for immunity, the Iraqi side answered that it was not possible. The discussions over the number of trainers and the place of training stopped. Now that the issue of immunity was decided and that no immunity to be given, the withdrawal has started."

But Mr. Maliki and other Iraqi political figures expressed exactly the same reservations about immunity in 2008 during the negotiation of the last Status of Forces Agreement. Indeed those concerns were more acute at the time because there were so many more U.S. personnel in Iraq—nearly 150,000, compared with fewer than 50,000 today. So why was it possible for the Bush administration to reach a deal with the Iraqis but not for the Obama administration?

Quite simply it was a matter of will: President Bush really wanted to get a deal done, whereas Mr. Obama did not. Mr. Bush spoke weekly with Mr. Maliki by video teleconference. Mr. Obama had not spoken with Mr. Maliki for months before calling him in late October to announce the end of negotiations. Mr. Obama and his senior aides did not even bother to meet with Iraqi officials at the United Nations General Assembly in September.

The administration didn't even open talks on renewing the Status of Forces Agreement until this summer, a few months before U.S. troops would have to start shuttering their remaining bases to pull out by Dec. 31. The previous agreement, in 2008, took a year to negotiate.

Enlarge Image

Associated Press

A U.S. Army soldier stands by military armored vehicles ready to be shipped out of Iraq at a staging yard at Camp Victory that is set to close in Baghdad.

The recent negotiations were jinxed from the start by the insistence of State Department and Pentagon lawyers that any immunity provisions be ratified by the Iraqi parliament—something that the U.S. hadn't insisted on in 2008 and that would be almost impossible to get today. In many other countries, including throughout the Arab world, U.S. personnel operate under a Memorandum of Understanding that doesn't require parliamentary ratification. Why not in Iraq? Mr. Obama could have chosen to override the lawyers' excessive demands, but he didn't.

He also undercut his own negotiating team by regularly bragging—in political speeches delivered while talks were ongoing—of his plans to "end" the "war in Iraq." Even more damaging was his August decision to commit only 3,000 to 5,000 troops to a possible mission in Iraq post-2011. This was far below the number judged necessary by our military commanders. They had asked for nearly 20,000 personnel to carry out counterterrorist operations, support American diplomats, and provide training and support to the Iraqi security forces. That figure was whittled down by Defense Secretary Leon Panetta and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, to 10,000, which they judged to be the absolute minimum needed.

The Iraqis knew about these estimates: U.S. military commanders had communicated them directly to Iraqi leaders. Prime Minister Maliki was said (by those who had talked to him) to privately support such a troop commitment, and almost all Iraqi political leaders—representing every major faction except for the rabidly anti-American Sadrists—assented on Aug. 2 to opening negotiations on that basis.

When the White House then said it would consent to no more than 5,000 troops—a number that may not even have been able to adequately defend itself, much less carry out other missions—the Iraqis understandably figured that the U.S. wasn't serious about a continued commitment. Iraqi political leaders may have been willing to risk a domestic backlash to support a substantial commitment of 10,000 or more troops. They were not willing to stick their necks out for such a puny force. Hence the breakdown of talks.
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Marc Lynch in Foreign Policy

On December 15, 2011, U.S. Secretary of Defense Leon Panetta announced the formal end of America's military presence in Iraq. The withdrawal came after the inability to reach agreement on a revised Status of Forces Agreement which would have allowed a limited number of troops to remain under legal conditions acceptable to the Pentagon.  While the vast majority of Iraqis and Americans supported the departure of America's military presence, some supporters of a long-term U.S. military presence warned of disaster.  Some, like Senator John McCain and the Romney campaign, continue to fume that we no longer occupy Iraq and complain that Obama has lost what Bush gained. But in fact, the American departure has hardly mattered at all -- and that's a good thing.

This isn't to say that Iraq has emerged as a peaceful, democratic paradise or an enthusiastic pro-American ally. Hardly.  That was never in the cards, after the disastrous invasion and bungled occupation led to a horrific civil war and a near-failed state.  Iraq today remains a violent, poorly institutionalized place with deep societal fissures and unresolved political tensions.  But little has happened in the months since the U.S. withdrawal which differs significantly from what had been happening while the U.S. remained. The negative trends are the same ones which plagued Iraqdespite the presence of U.S. troops in 2007, 2008, 2009, 2010, and 2011. The U.S. presencecontributed to some of those problems, helped deal with some, and  failed to resolve others.  But it had always struggled to convert its military presence into political leverage, and by 2011 it had become almost completely irrelevant. 

The real story of America's withdrawal from Iraq is how little impact it has really had on either Iraq or the region.  There are even signs that the withdrawal has helped to nudge Iraqis onto the right path, though not as quickly or directly as I might have hoped. This month's death toll was the lowest on record since the 2003 invasion, while Iraqi oil exports are at their highest level since 1980. Baghdad successfully hosted an Arab Summit meeting, which may have done little for Syria but did go further to bring Iraq back into the Arab fold than anything since 2003.  Maliki's jousting with his domestic foes and efforts to balance Iraq's ties with Tehran with improved Arab relations are what needs to happen for Iraq to regain a semblance of normality.   It isn't pretty, and probably won't be any time soon, but there's absolutely no reason to believe that it would look any better with American troops still encamped in the country.  Thus far, Obama's risky but smart gamble to end the U.S. military presence in Iraq is paying off.

Indefinite Detention of American Citizens; Glenn Greenwald

And, as to lifetime detention of U.S. persons, the bill by its very terms (thanks to an amendment introduced by Senator Feinstein) confirms what would have been the proper reading anyway—namely, that its detention authorization provision (section 1021) does not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”  For good measure, section 1022 also provides that its purported presumption of military detention “does not extend to citizens of the United States.

          Marty Lederman 

Glenn Greenwald: NDAA

 Marty Lederman and David Barron wrote the authorization to kill Anwar al-Awlaki.

Martin "Marty" S. Lederman  He has concentrated on questions involving freedom of speech, the Religion Clauses, congressional power and federalism, equal protection, separation of powers, copyright, and food and drug law. He helped draft the June 2010 memorandum authorizing the targeted killing of U.S. citizen and Islamic cleric Anwar al-Awlaki. ^[1]

Lederman is currently on leave from his position as Associate Professor of Law at the Georgetown University Law Center. He teaches courses in constitutional law, separation of powers, and executive branch lawyering. When not serving in government, he has been a regular contributor to the weblogs SCOTUSblog and Balkinization. His blogging and scholarship focuses on matters related to executive power, detention, interrogation, civil liberties, and torture.

Lederman was formerly an attorney at Bredhoff & Kaiser, where his practice consisted principally of federal litigation, including appeals on behalf of labor unions, employees and pension funds, with particular emphasis on constitutional law, labor law, civil rights, Racketeer Influenced and Corrupt Organizations Act (RICO) and employment law. He graduated from University of Michigan and Yale Law School. 

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David Barron

Education

• Harvard College A.B. 1989, History
• Harvard Law School J.D. 1994

Appointments

• Chair, Section on Local Government Law, AALS
• Assistant Professor of Law, 1999
• Professor of Law, 2004
• Honorable S. William Green Professor of Public Law, 2011http://www.law.harvard.edu/faculty/directory/index.html?id=4

=====

Robert M. Chesney, a University of Texas School of Law professor who specializes in national security law, said he believed the killing was legal. But he said it was "plenty controversial" among legal experts.

The administration's legal argument in Awlaki's case, Chesney said, appears to have three elements: First, Awlaki posed an imminent threat to the lives of Americans; second, he was fighting with the enemy in the armed conflict; and third, there was no feasible way to arrest him.

http://www.statesman.com/news/world/awlaki-killing-fuels-debate-on-presidential-power-1889257.html?printArticle=y

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Benjamin Wittes

"Under these circumstances, I don’t have grave due process anxieties about targeting a U.S. national."

"Let’s hold up what we know about the Al Aulaqi case to this test:

(1) He has clearly been identified with a high degree of confidence using the best intelligence available and a multi-layered review process as a high-level operational terrorist leader in a group that the government reasonably regards as part of Al Qaeda (or at least cobelligerent with it) and who has actually planned attacks on behalf of that group. Critically, this intelligence, some of which has become public, is notsimply about his role as a charismatic, inspirational jihadist cheerleader or as an internet propagandist, facts that would not, repugnant though these activities are, be grounds for targeting him.

(2) Efforts to capture Al Aulaqi have clearly been made. This morning’s New York Times, for example, has a lengthy story about such efforts over a long period of time:

But in fact, the Yemeni security services, many trained by American Special Forces soldiers, appear to have pursued Mr. Awlaki for almost two years in a hunt that was often hindered by the shifting allegiances of Yemen’s tribes and the deep unpopularity of Mr. Saleh’s government.

In 2009 and 2010, Mr. Awlaki seems to have been mostly in the southern heartland of his own powerful tribe, the Awaliq, where killing him would have been politically costly for the government, and capturing him nearly impossible. The area where Mr. Awlaki was finally killed, in the remote north, did not afford him the same tribal protection. There are also many tribal leaders in the far north who receive stipends from Saudi Arabia — the terrorist group’s chief target — and who would therefore have had more motive to assist in killing him.

The hunt for Mr. Awlaki has involved some close calls, including the failed American drone strike in May, and the previously unreported operation in the Yemeni village. Yemen’s elite counterterrorism commandos, backed by weapons from Yemen’s regular armed forces, formed a ring around the town as commanders began negotiating with local leaders to hand Mr. Awlaki over, said one member of the unit.

“We stayed a whole week, but the villagers were supporting him,” said the counterterrorism officer, who is not authorized to speak on the record. “The local people began firing on us, and we fired back, and while it was happening, they helped him to escape.”

What’s more, Al Aulaqi has been on notice for quite some time that he is wanted and has not sought to surrender or turn himself in, and the government has made clear it would accept his surrender. So there’s a strong basis on which the government can argue here that it has pursued remedies short of lethal force. It has tried to take Al Aulaqi alive and remained open to the possibility but the chance did not pan out. What did pan out was an opportunity to attack a car from a remote, stand-off position.

(3) Would the foreseeable result of not taking this chance have been the loss of innocent life? This question seems to me to answer itself. A government worth anything simply has to take seriously a man who has been personally involved in terrorist actions in the past, who promises more, and who is taking active steps to conduct them."

Answers about Iran's Nuclear Ambitions

The following are a few important segments of a fantastic NPR, Talk of the Nation radio program.

The reformist side has, for quite some time now, been supportive of improving relations with the United States, but they were sidelined after the political turmoil that occurred in 2009 and 2010. More recently, President Ahmadinejad has emerged as someone who has suggested that Iran would benefit from an improvement in relations with the United States, but he's been blocked by the supreme leader's camp.

SHUSTER: That's right. The Iranians have known to - have been known to discount their oil in the past in order to make sure that they have buyers for it. It's interesting, though, that a few weeks ago, the Chinese premier was in the Persian Gulf meeting with leaders of various Gulf states, obviously, to talk about the situation - the tense situation in the Gulf and the supply of oil. He went to Saudi Arabia and meet with other smaller Gulf Arab states, and he did not visit Tehran. And it was - it's believed that the discussions held, particularly with Saudi Arabia, were about whether Saudi Arabia could supply more oil to China in the event that there's some kind of an embargo imposed - serious embargo on Iran. Very interesting development, I thought.
====
The North Koreas certainly saw their acquiring of a nuclear weapon as a deterrent against attack, either from the United States or from South Korea or both. That example may be what's functioning in the minds of some Iranian leaders, if they are considering - and there are some who have said that they would like to see Iran acquire a bomb, not all but some. That might be the calculus that they are figuring in order to deter attack by the United States.


CONAN: There is talk of kicking Iran out of a program called SWIFT, which is based in Europe and which channels all of the financial transactions, pretty much, on the world market. It would pretty much cut off Iran's ability to export oil.


CONAN: Now the arrival of U.N. inspectors from the IAEA, International Atomic Energy Agency, in Tehran, this is part of a series of inspections. So far, Iran has not shown them what they want to see. 

CONAN: There's also the letter that was sent to the P5-plus-1, that's the group of the five permanent members of the Security Council plus Germany. This is the group that's been negotiating with Iran on and off on its nuclear program; talks founded, what, I guess about a year ago.

SHUSTER: That's right.

======

-SHUSTER: I don't think that President Obama is against direct talks with Iran. He came into office in 2009 advocating diplomatic engagement with Iran. It turned out that it was difficult. The Iranians don't always cooperate in the ways that the U.S. negotiators would like.

Hillary Clinton, secretary of the state, at the same time essentially imposed preconditions for talks with the Iranians that included a suspension of their uranium enrichment activities, which is in a number of U.N. Security Council resolutions. And there came a point when it seemed fruitless to pursue that notion sometime in 2009, 2010.

_

CONAN: And this is an idea to restart those talks and apparently, according to Secretary of State Hillary Clinton, without preconditions.

========

SHUSTER: That's right, and this seems to be an effort on the part of what you might consider to be the more open-minded faction in Iran, probably led by a current moderate who is foreign minister, Ali Akbar Salehi, and there does seem to be some remote chance that this time around there could be some negotiations that could take place between Iran and the Europeans and the United States.

CONAN: And more talk of that just this past weekend in Israel, as senior officials from the U.S. and Britain were there, they say, to advise Israel: Please don't, or at least wait. Let's give sanctions a chance.

Yesterday, both Martin Dempsey, the chairman of the Joint Chiefs of Staff, and British Foreign Secretary William Hague warned Israel not to attack Iran, to give harsh international sanctions more time.

SHUSTER: I'm not sure. It's - I think it's quite clear that the Obama administration has no stomach for military action against Iran. The British don't, either.

We've seen, in the last six months, a complete collapse of the Iranian currency, which has made it very difficult for ordinary Iranians to travel, ordinary businessmen in Iran to borrow foreign currency to use to finance their imports. Things are quite difficult in Iran economically right now, perhaps more so than in many recent years.

So this is having some - it is having some kind of an effect.

SHUSTER: It's difficult to predict, and your question requires a prediction. But it's important to note that in less than two weeks, there will be a parliamentary election. It'll be the first important election nationwide since the disputed presidential election in 2009.

And it's unclear really what this is for. The authorities, the clerical authorities have already crossed off the ballot hundreds of more - let's say more reformist-oriented candidates. The formal opposition is not taking part because they felt that the 2009 presidential election was stolen from them, and they won't take part.

Iranian leaders even on the conservative side have always boasted that Iran is a democracy and always put great store in elections, even if they didn't like the outcome of elections. I think now there'll be a lot of - there'll be a lot of attention paid to the turnout and whether the Iranian public is willing to go back to the polls given all that's happened since the presidential election in 2009.

And there is talk of extra-constitutional actions that could take place. It's not a far-fetched scenario, but at this point, there's no concrete signs that something like that is going to take place. It certainly looks like the parliamentary elections will come off.

And what's also interesting about them is they pit two conservative camps against one another, one supporting the supreme leader, Ali Khamenei, and one supporting President Ahmadinejad. And Khamenei and Ahmadinejad have had some really rough times in the last couple of years.

SHUSTER: Yeah, that's right. It's - this has been a constant theme in Iranian politics for all these years. And what's interesting is that in the last 10, there's been a kind of competition that's emerged among different political factions in Iran, focused on who might get the credit for improving relations with the United States.

The reformist side has, for quite some time now, been supportive of improving relations with the United States, but they were sidelined after the political turmoil that occurred in 2009 and 2010. More recently, President Ahmadinejad has emerged as someone who has suggested that Iran would benefit from an improvement in relations with the United States, but he's been blocked by the supreme leader's camp.

And it's been argued, I think effectively, that the supreme leader needs the notion of an enemy in the United States in order to maintain his hold on power in Iran, that if the United States were to be removed as the so-called Great Satan, that might remove one of the bulwarks of the Islamic revolution in Iran and raise questions about the future.

On the Shiite crescent, I think it - we heard a great deal of fear expressed about a growing Shiite crescent after the U.S. invasion of Iraq and the coming to power in Baghdad of a Shiite-led government that had friends in Tehran.

Things are so unpredictable in the Middle East, and now with more than a year of the Arab spring and this ongoing, very bloody confrontation in Syria, it looks less and less like Iran can maintain any kind of a regional control or even influence in politics, whether it seeks to ally with the Shiite in Baghdad or the Hezbollah in southern Lebanon or the Shiite protestors in Bahrain.

Iran seems set to lose its only real ally in the Arab world, the Syrian government of Bashar al-Assad, and it seems that the Iranian leadership is floundering as far as making the claim that it continues to be the - to lead the Muslim world in the Middle East.

=

JOHN: Hi. Thank you for taking my call. I was interested in knowing, is there any evidence at all that Iran wants or intends to have a program for nuclear weapons?

SHUSTER: That's - that sounds like a simple question to answer and it's not. It's a very complex question. And what's true is that Iran has been - has had a complex nuclear program - program of nuclear activities for more than 20 years. And it's fairly well known that before 2003, the Iranians actually had a full-pledged nuclear weapons program. It had started during the war with Iraq in the 1980s.

But after the U.S. invasion of Iraq and the discovery of components of this nuclear weapons program, the Iranians shut it down, and there's seems to be - the conclusion that the U.S. intelligence community came to and the International Atomic Energy Agency, that in 2003 it was shut down. The question - the questions risen since 2003 is to whether they've restarted components of this nuclear weapon program, and that's what the senior delegation from IAEA is trying to find out about in Tehran today and tomorrow. And they've been trying to find out answers to some of their tougher questions for quite a number of years.

So - and there was a recent report from the International Atomic Energy Agency back in November that said - that essentially said, we have a lot of questions because there's a lot of evidence that components that could only be understood to be for a nuclear weapon have been undertaken in Iran in recent years. But the IAEA and the U.S. intelligence community have stopped short of saying that Iran has restarted a full-pledge nuclear weapons program so that...

JOHN: Sorry for that being been undertaken.

SHUSTER: Well, there are some evidence that there are experiments that had involved elements of a nuclear weapon that - elements of a nuclear program that could only be applied for nuclear weapon. Like, for instance, the senior delegation wants to visit a place called Parchin, which is a military base not far from Tehran where there were explosives tests in the past, and there were some kind of an encasement where high explosives were used. The IAEA believes this has something to do with the design of a nuclear weapon. They want to go and they want to see this place, and they want to talk to engineers and scientists who are involved in this place. The Iranians won't let them - haven't let them in the past and are likely to resist allowing them to see this place right now. But there is evidence and there are questions about whether these involved experiments that could only be applied to nuclear weapon technology.

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

Fareed

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. 

Assassinating American Citizens?

http://www.longwarjournal.org/archives/2011/03/anwar_al_awlakis_ema.php

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.

http://www.cnas.org/files/documents/publications/CNAS_Rhetoric%20and%20Reality_Lynch.pdf

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.

=

The

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

exaggerated.

==

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

them.90

What Does the NDAA really do?

=
BEN WITTES

http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/

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.

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

http://www.foreignaffairs.com/articles/64844/f-gregory-gause-iii/the-return-of-the-old-middle-east

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.

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

http://www.wbur.org/npr/145046986/nuremberg-tribunals-and-justice-and-the-enemy

"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.

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