On Tuesday, General Petraeus Achieved Victory in Oceania; On Wednesday, He Led Us to War against Eastasia

The day after Obama declared victory (sort of) in Iraq, the Administration announced a whole package of sanctions against the Pakistani Taliban, Tehrik-e Taliban. The sanctions:

  • Designate TTP as a Foreign Terrorist Organization
  • Designate TTP as a Special Designated Global Terrorist Organization
  • Designate TTP’s two leaders, Hakimullah Mehsud and Wali Ur Rehman, as Special Designated Global Terrorists
  • Offer of $5 million reward leading to Mehsud or Rehman’s arrest
  • Charge Mehsud in connection with the Khost killings

Forgive me if I dismiss what are real measures against a genuinely dangerous organization. But I can’t help but suspect this lays the ground work to ensure we have a war against terror to fight (and with it, expanded executive powers) beyond July 2011.

Charging a formerly dead guy

Perhaps my favorite comment on the criminal charges came from reporter James Gordon Meek:

DOJ charges Pak #Taliban emir Hakimullah Mehsud in absentia for killing 7 CIA officers in #Afghanistan 12/09. Anybody tell CIA’s drone unit?

Presumably, Meek is referring to claims a US drone strike killed Mehsud in January, a claim the CIA once judged to have a 90% likelihood of being correct. There’s not much point in arresting Mehsud if he’s been dead nine months.

But the mention of CIA’s drone campaign in Pakistan raises a bunch more problems with DOJ’s charges. For starters, Mehsud’s wife–a civilian–was reportedly killed in that January drone strike too. Both the uncertainty the CIA has about its purportedly scalpel-like use of drones and the civilian deaths they’ve caused illustrate the problem with drones in the first place. Civilians–CIA officers–are using them in circumstances with significant collateral damage. It would be generous to call the use of drones in such situations an act of war; some legal experts have said the CIA officers targeting the drones are as much illegal combatants as al Qaeda fighters themselves.

The affidavit describing the evidence to charge Mehsud doesn’t say it, but underlying his alleged crime is the potential US crime of having civilians target non-combatants in situations that cannot be described as imminently defensive.

Charging someone for revenge on CIA’s illegal killing

Which leads us to the crimes for which they’re charging Mehsud: conspiracy to murder and conspiracy to use a WMD (bombs) against a US national while outside of the United States. Basically, DOJ is charging Mehsud with conspiring with Humam Khalil Mulal al-Balawi, the Jordanian doctor who committed the suicide bombing at Khost that killed 7 CIA officers and contractors.

Now, there’s not much doubt that Mehsud did conspire with al-Balawi. I just doubt whether it could be fairly called a crime. The affidavit describes two videos in which Mehsud stands side by side with al-Bawali. In one, both al-Balawi and Mehsud describe the upcoming attack as revenge for killings in the drone program–most importantly, of Mehsud’s brother Baitullah Mehsud from a CIA drone strike in August 2009.

Al-Balawi then continues alone: “This itishhadi [martyrdom-seeking attack] will be the first of the revenge against the Americans.” After additional declarations of revenge by al-Balawi, MEHSUD resumes speaking in Pashtu, explaining the motive for the upcoming suicide attack by al-Balawi, that is the death of the former emir of the TTP, Baitullah Meshud [sic] which MESHUD [sic] attributes to the Americans.

Remember, too, that al-Balawi was a double agent. The Americans believed he was helping them target people, people just like Mehsud. That means al-Balawi (and presumably through him, Mehsud) knew he was specifically targeting those behind the earlier killings in Pakistan when he killed them.

So al-Balawi successfully killed people who were either civilians, in which case their own strikes at Baitullah Mehsud and others may be illegal, or people who were acting as soldiers, in which case the attack on their base was presumably legal under the law of war. And for helping al-Balawi, DOJ is now charging Mehsud with conspiracy.

The affidavit, of course, neglects to mention any of these details. Here’s how they describe the US presence in Afghanistan:

In an effort to stabilize Afghanistan, the United States has maintained a presence in Afghanistan since the removal of the Taliban at several facilities throughout the country, including bases located along the Afghanistan-Pakistan border.

It’s a convenient description, given as how it might vaguely justify the drone strikes in Pakistan. Yet it doesn’t mention the actual legal purpose for US presence in Afghanistan authorized by the AUMF, which is to get the people who hit us on 9/11. That obviously can’t include the TTP, since even this affidavit said they formed in 2007 in what could fairly be read as a response to US actions in Pakistan tied to the Afghan war.

TTP’s primary purpose is to force withdrawal of Pakistani troops from the FATA of Pakistan–which is located along the Pakistan-Afghanistan border–unite against NATO forces in Afghanistan, and establish Sharia–or Islamic law–in the tribal territories.

It’s not a crime to advocate for sharia. TTP’s other two described goals–to force the withdrawal of Pakistani troops placed there at US behest, and to “unite” against NATO forces “in Afghanistan” which (the affidavit doesn’t say) support drone strikes in Pakistan are responses to US actions. Granted the TTP are dangerous creeps. But even this affidavit is largely describing them as an entity reacting in defensive fashion to US actions.

As to the killing of Baitullah Mehsud? The affidavit simply says he died, without any explanation of the drones that illegally (if their suggestion that al-Balawi targeted civilians is true) or legally (if they concede that al-Balawi struck a military target) struck in Pakistan.

The Tehrik-e-Taliban Pakistan (TTP) is a Taliban-inspired alliance of Pakistan-based Sunni tribal militants formed in or about late 2007 by Baitullah Mehsud, who was killed in August 2009.

[snip]

… the motive for the upcoming suicide attack by al-Balawi, that is the death of the former emir of the TTP, Baitullah Meshud [sic] which MESHUD [sic] attributes to the Americans.

Of course, they have to depict Baitullah Mehsud as just dying, with no further discussion. Because if they included such a discussion, then either the al-Balawi attack would not be a crime, or the CIA civilians killed in it were acting illegally when they committed the act that brought Mehsud to retaliate. (Note, too, that when State Department Counterterrorism Coordinator Daniel Benjamin was asked yesterday about ties between TTP and ISI, he claimed to know nothing.)

But no matter. We now officially have a new, named target, one to match Anwar al-Awlaki in Yemen, and one who (unlike Osama bin Laden, Ayman al-Zawahiri, or Mullah Omar) we might stand a chance of getting. Now the American people have a villain to root against.

Why impose these sanctions now

Which may be why the Administration has taken these steps, up to and including the dubious charges against Mehsud.

To a large degree, this is a reaction to Faisal Shahzad’s attempt to bomb Times Square in May. Yet curiously, the charges are not related to that strike, even though if the TTP was genuinely involved, it would be more clearly terrorism than the Khost strike. Though  a YouTube initially had the TTP claiming credit for the strike, shortly after Shahzad’s arrest, the TTP said it did not train him. Video later surfaced showing Shahzad and Mehsud together. And Shahzad himself said he had been trained by the TTP before his strike. The affidavit against Mehsud says that TTP has claimed responsibility for the attack, but makes no charges relating to it.

(Note, the government’s claims about TTP also repeatedly mention the Benazir Bhutto assassination, though they very carefully couch that claim in terms of what Pakistani authorities have claimed about TTP, not what TTP has claimed or the US has evidence to support.)

It may be tied to General Petraeus’ assumption of the command in Pakistan–though he has pushed for the listing of the Haqqani network more strongly than the TTP.

Ultimately, though, I suspect this is an effort to establish ties between the al Qaeda–those covered in the AUMF in Afghanistan–and the Pakistani Taliban not legally included in the AUMF before the justification for remaining in Afghanistan to fight the dozen al Qaeda members still in the country begins to look utterly ridiculous.

The TTP is very much part of the most dangerous terrorist threat the United States faces. The TTP and al-Qaida have a symbiotic relationship. TTP draws ideological guidance from al-Qaida while al-Qaida relies on the TTP for safe haven in the Pashtun areas along the Afghan-Pakistani border.This mutual cooperation gives TTP access to both al-Qaida’s global terrorist network and the operational experience of its members. Given the proximity of the two groups and the nature of their relationship, TTP is a force multiplier for al-Qaida.

While the terrorist designations undeniably gives law enforcement agencies the ability to prosecute anyone knowingly working with the TTP going forward (thus making it easier to try any Americans seeking out ties with them), it also seems to point to a lot of the problems with our hybrid legal-military strategy.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. b2020 says:

    “it also seems to point to a lot of the problems with our hybrid legal-military strategy”

    You mean that toxic brew of unconstitutional, illegal, contract-violating war crimes and felonies that makes for multiple undeclared wars of aggression?

    Not sure I see any strategy.

  2. phred says:

    our hybrid legal-military strategy

    I thought legal double-standards were supposed to be a feature, not a bug ; )

  3. WilliamOckham says:

    Forgive me if you have already mentioned this (I only skimmed your article, I’m watching my blood pressure closely these days), but isn’t this:

    conspiracy to murder and conspiracy to use a WMD (bombs) against a US national while outside of the United States.

    exactly what the Obama administration is doing with respect to Anwar al-Awlaki?

    How exactly is this dude guilty of something but Obama, et. al. aren’t?

  4. BoxTurtle says:

    Wonder if this was the the request of Pakistan. They know Obama is drone happy and this way we’ll get the blame if the baddies have accidents.

    Boxturtle (ObamaLLP ain’t guilty because the’re Americans. But why haven’t we charged the ISI?)

    • BoxTurtle says:

      Or an old war moving out in the open.

      Boxturtle (Or a bright shiny object to distract us from catfood at a critical time)

    • rosalind says:

      The AP article on the tanker that just ran aground in the Arctic (no damage/leaks so far) references a territorial dispute between Canada and U.S. over who owns the Northwest Passage.

      Maybe the next battle’ll be enjoined a little closer to home. At least the language barrier won’t be so bad, and they can send in the drones from Alaska. Go Canucks!

      (edited to remove link to article, didn’t realize it was AP)

      • Petrocelli says:

        Harpuh will surrender before the War even got started … can’t interrupt the Oil flowing from his buddies’ wells,
        yannow …

        • skdadl says:

          Kinda ironic given all the bluster-spin Harper has been giving to his Arctic initiative the last while, eh? We really need to defend ourselves against those Russkies who fly their planes around in their own airspace, which, oddly enough, is so close to ours, eh? Peter MacKay, aka Minister Dress-Up, will put on his defence drag for the Russians, but I don’t think he’s gonna resist Washington.

          Stan Rogers, Northwest Passage

          Ohai also, Petro. Hot enough for you?

          • Petrocelli says:

            You missed my comment to you yesterday … it’s hot and wonderful, unlike Alberta where some folks have to fire up their furnaces.

            That darn Earl is gonna bring us rain and cool air for the weekend …

            Peter McKay has become a shell of his soulless being … I guess he’s hoping that the next BigMac does in Harpuh, and Peter becomes PM.

      • john in sacramento says:

        Related

        The Arctic Ice Cap is Melting Away

        The Northwest Passage–the legendary shipping route through ice-choked Canadian waters at the top of the world–melted free of ice last week, and is now open for navigation…

        […]

        This summer marks the fourth consecutive year–and fourth time in recorded history–that the fabled passage has opened for navigation. Over the past four days, warm temperatures and southerly winds over Siberia have also led to intermittent opening of the Northeast Passage, the shipping route along the north coast of Russia through the Arctic Ocean. It is now possible to completely circumnavigate the Arctic Ocean in ice-free waters, and this will probably be the case for at least a month. This year marks the third consecutive year–and the third time in recorded history–that both the Northwest Passage and Northeast Passage have melted free … commercial shipping in the Arctic is on the increase, and there is increasing interest in oil drilling

  5. donbacon says:

    It’s so confusing.
    On the one hand the US is killing Pakistanis who support the US military’s enemy in Afghanistan, along with any innocents who happen to be nearby, while with the other hand the US gives hundreds of millions of dollars to the Pakistan government which General McChrystal assessed a year ago was probably supporting (via its intelligence agency) the US enemy in Afghanistan.

  6. Mary says:

    Maybe worth noting that prior to his suicide bombing, al-Balawi was reportedly being paid by the CIA for every target he provided them.

    So he was conspiring for money with the CIA in their assassinations.

    I don’t think there’s anyway, no matter what you try to use as a military authorization, to claim the CIA is anything other than illegal enemy combatants – non-uniformed sabateurs, spies, assassains.

  7. TarheelDem says:

    The Americans believed he was helping them target people, people just like Mehsud.

    And the huge problem with the drone program’s “surgical strikes” is exposed. If it’s not poor intelligence, it’s a opening to be played by a double agent.

    Why now? My guess is that this is a signal of support to the ISI and Pakistani military who want to shut down the Mehsud-led Talibanis because they have carried out attacks in Pakistan outside of the Northwest Territories and FATA. And my prediction is that when the Pakistani military clears out the area that the Mehsuds are operating from, including remaining foreign fighters, the US will pronounce “Mission Accomplished” and start going home. And this action provides notice to other countries that might shelter the Mehsuds that they are on a US watch list.

    It seems that Petraeus is under great pressure to deliver what he promised in the fall of 2009. I’m sure that being effectively demoted and sent into the field has cooled somewhat his ambition to be Caesar. It is clear that the US cannot do counter-insurgency, has never been able to do counter-insurgency, and winds up creating more enemies with counter-insurgency. The “we didn’t stay long enough in Vietnam” bunch are seeing their dreams go down the tubes.

    We’ll know more when we know who Obama is going to appoint to replace Gates.

  8. MadDog says:

    OT – In case folks missed this, via CREW – some of John Yoo’s missing emails:

    “Found” John Yoo Emails Shed No Light On What Mr. Yoo Did For The Department Of Justice

    Yesterday, as part of a lawsuit CREW brought against the Department of Justice (DOJ) for the missing John Yoo emails, DOJ produced 927 pages of emails located in Mr. Yoo’s mailbox. While this production suggests DOJ finally may have located what it told the Office of Professional Responsibility several years ago was missing, it sheds no light on Mr. Yoo’s role in drafting the torture memos or, indeed, on anything Mr. Yoo may have done while at DOJ. Instead, the vast majority of these 927 pages consists of email traffic regarding Mr. Yoo’s frequent stints as a lecturer and the various and sundry articles he published while employed by DOJ. It seems that Mr. Yoo, while on the federal payroll, was busy expanding his credentials for the next job on which he had set his sights – a return to academia…

    Those Yoo emails can be found here.

    • MadDog says:

      I would note the “curiosity” that there are no John Yoo emails provided from the period beginning September 7, 2001 until September 30, 2001. This is of course the frantic 9/11 period where one might expect terrorism and surveillance colloquies among the various Bush regime GWOT proponents including the White House Counsel’s Office, the OVP, the CIA, DOD, etc.

      It may be that John Yoo emails during this period are among those 169 being withheld and/or being reviewed by other “entities” per page 2 of the DOJ letter to CREW (3 page PDF).

      • rosalind says:

        thanks, MadDog for the Yoo e-mails. Even in early October Yoo was busy booking speaking engagements for 2001/2002. And for today’s trivia, pick out the one sentence Yoo contributed to the Jack Goldsmith/Bernard Meltzer Op-Ed Goldsmith e-mailed Yoo saying “You’ll notice one of your sentences in here:”. page OLC000038.

        (OK, backslashes aren’t showing up for that file location…)

        at the bottom of page OLC000051 the document info reads:

        file://C:Documents and SettingsdbrinleyLocal SettingsTemporary Internet FilesOLK6C 7/14/2010

        if that tells us anything about anything…

        • MadDog says:

          You’re welcome and ta right back at you!

          I downloaded the entire 927 page PDF (55 MB) rather than use that hokey system that Scribd provides, and having the PDF itself makes it far easier to read.

          I’m only on page 103 of 927 with nothing very notable just yet, but we’ll see.

            • MadDog says:

              You have to have either a Scribd account or it seems, a Facebook account. I’ve had a Scribd account for a while since CREW had been putting a lot of their missing White House Email PDFs there.

              Anyways, if you’d like, I can upload a copy to Mediafire so you could download it from there. Yes?

                • MadDog says:

                  I’m uploading a copy to Mediafire for you right now. It will be in a Zip file so I hope you have something to unzip it with (7-Zip is a freebie Windows app that works just fine You can download that here).

                  Zip…whirr…buzz…

                  Since it is a 52 MB zip file, it’s taking a while to upload.

                  Zip…whirr…buzz…

                  Ok, done now. The file is called Yooemails.zip and you can download it from this Mediafire link.

          • rosalind says:

            i enjoyed another Jack Goldsmith/Yoo exchange on OLC 000082:

            Goldsmith: Attached is the resume of another applicant I hope you’ll take very very seriously. Her name is —–. She’s the President of the Federalist Society and will be clerking for Easterbrook. She is absolutely first rate — my very highest recommendation. She’s so good that she’s the RA for about 5 faculty members. Seriously. You have to hire her.

            Yoo: Aside from the last name, she looks good to me.

            Ha! Anyone know who the President of the Harvard Federalist Society was in 2001/2002? Their website funnily enough skips that year, with no officer info available. I’m dying to know what last name elicited this response from Yoo.

            After Goldsmith pitches someone else’s son-in-law for a job, he asks Yoo about written testimony for a hearing.

            Goldsmith: They asked me to submit something for the record in these hearings is that worth doing?

            Yoo: Yes. I assume that means that you aren’t being asked to testify in person. But what you send will be included in the printed hearing record, which is always good.

            • MadDog says:

              I was looking for her name via Google for Easterbrook clerks 2001-2002, but I stopped after having no particular luck (or too many Google hits).

              How did you find out that she was at Harvard? I didn’t find her school which didn’t help my Google search.

              • rosalind says:

                Well, Goldsmith is recommending her and he was at Harvard at this time, right? So, and with his reference to her helping out faculty, I figure she was the President of the Harvard Chapter.

                • MadDog says:

                  That may be a good surmise on your part! Here’s the Harvard Federalist Society chapter history page with lists of officers, though 2001-2002 is sort of missing.

                  Probably classified, right? *g*

                  • MadDog says:

                    Oops Rosalind, I read too hurriedly or didn’t comprehend you already had the scoop in your comment about the missing 2001-2002 officers.

                    Doh! *g*

                • Mary says:

                  and previous –

                  He only got his Hahvard gig after putting in time with Haynes for DoD torture and Ashcroft for DOJ torture experience.

                  According to Sourcewatch:
                  http://www.sourcewatch.org/index.php?title=Jack_Goldsmith
                  he was prof at Univ Chicago from ’97 – 2003,
                  He worked for Haynes at DoD from 2002 to 2003,
                  then was at OLC from 2003 – 2004 and apparently managed to squeeze in being an assoc prof at UVA way over in Charlottesville during that same time frame.

                  • MadDog says:

                    Ahhh…so that new applicant may have been from University of Chicago.

                    That makes sense because Goldsmith makes mention that while the President of the Federalist Society (I’m now assuming at U of Chicago), she was clerking for Easterbrook who was/is a Federal judge (now Chief Judge) for the 7th Circuit Court of Appeals.

                    • rosalind says:

                      ok, back with the booze. and yes, i had goldsmith at harvard in 2001. we are looking for the president of the u of chicago federalist society. their home page only lists the current officers…

  9. rosalind says:

    ok, one more before i go on a booze run (looks like it’s gonna be one of those nights). on OLC 000078 there’s a hand-written address, so it looks like some of these were printed out e-mails sitting in a file folder somewhere, perhaps titled: “Speaking Engagements 2001 – 2002 (Or how I spent the first few months of the war)”

    (ew: can we haz working thread?)

  10. emptywheel says:

    Here’s the punchline on the OLC emails: They’ve excluded all those “available elsewhere in the Department.

    You know, like on the top secret servers? They’ve simply not included the interesting ones.

    • MadDog says:

      Yeah, I just hoping we can tickle out a missed or overlooked goodie or two.

      You’ll note of course that about half of the John Yoo emails they found are either being withheld in total or are under review by other “entities” (169 withheld/under review vs 201 made available).

      That’s likely where all the real good stuff lies.