James Ornstein Calls Out Jim Comey on His Prevarications about Democracy

At a 10 AM Senate Homeland Security hearing on October 8, Jim Comey read prepared testimony that reiterated his claim that encrypted devices is causing FBI problems, but stated that the Administration is not seeking legislation to do anything about it.

Unfortunately, changing forms of Internet communication and the use of encryption are posing real challenges to the FBI’s ability to fulfill its public safety and national security missions.. This real and growing gap, to which the FBI refers as “Going Dark,” is an area of continuing focus for the FBI; we believe it must be addressed given the resulting risks are grave both in both traditional criminal matters as well as in national security matters. The United States Government is actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services. However, the Administration is not seeking legislation at this time.

That statement got the Administration a lot of good press, with the WaPo declaring “Obama administration opts not to force firms to decrypt data — for now” and the NYT, even after this ruling had been unsealed, reporting, “Obama Won’t Seek Access to Encrypted User Data.” In the actual hearing, Comey was more clear that he did intend to keep asking providers for data and that the government was having “increasingly productive conversations with industry” to get them to do so, inspired in part by government claims about the ISIS threat. Part of that cooperation, per Comey, was “how can we get you to comply with a court order.”

Sometime that same day, on October 8, government lawyers submitted a request to a federal magistrate in Brooklyn to obligate Apple to help unlock a device law enforcement had been unable to unlock on their own.

In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple, Inc. (“Apple”) to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court’s warrant.

The next day the judge, James Orenstein, deferred ruling on whether the All Writs Act is applicable in this case (though he did suggest it probably wasn’t) pending briefing from Apple on how burdensome it would find the request. Orenstein released his memo after giving the government opportunity to review his order.

This is not the first time the government has tried to use the All Writs Act to force providers (Apple, in at least one of the known cases) to help unlock a phone. EFF described two instances from last year in a December post. It also reviewed a 2005 ruling where Ornstein refused to allow the government to use All Writs Act to force telecoms to provide cell site location in real time.

Of course, as Lawfare seems to suggest, it has taken a decade for the decision Ornstein made in that earlier ruling — that the government needs a warrant to get cell tracking from a phone — to finally get fully developed into a debate and some Supreme Court (US v. Jones) and circuit rulings. That’s because in the interim, plenty of magistrates continued to compel providers to give such information to the government.

It’s quite possible the same is true here: that this is not just the third attempt to get a court to issue an All Writs Act to get Apple to provide data, but that instead, a number of magistrates who are more compliant with government wishes have agreed to do so as well. Indeed, as Ornstein noted, that’s a suggestion the government made in its application when it claimed “in other cases, courts have ordered Apple to assist in effectuating search warrants under the authority of the All Writs Act [and that] Apple has complied with such orders.”

What Ornstein did, then, was to make it clear this continues to go on, that even as Jim Comey and others were making public claims (and getting public acclaim) for not seeking legislation that would compel production of encrypted data the government — including, presumably, the FBI — was seeking court orders that would compel production secretly. The key rhetorical move in Ornstein’s order came when Ornstein compared Comey’s public statements claiming to support debate on this issue to the attempt to claim the government had to rely on the All Writs Act because no law existed. In a long footnote, Ornstein quoted from Comey’s Lawfare post,

Democracies resolve such tensions through robust debate …. It may be that, as a people, we decide the benefits here outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in a world of universal strong encryption. Those are decisions Americans should make, but I think part of my job is [to] make sure the debate is informed by a reasonable understanding of the costs.

Then Ornstein pointed out that relying on the All Writs Act would undercut precisely the democratic debate Comey claimed to want to have.

Director Comey’s view about how such policy matters should be resolved is in tension, if not entirely at odds, with the robust application of the All Writs Act the government now advocates. Even if CALEA and the Congressional determination not to mandate “back door” access for law enforcement to encrypted devices does not foreclose reliance on the All Writs Act to grant the instant motion, using an aggressive interpretation of that statute’s scope to short-circuit public debate on this controversy seems fundamentally inconsistent with the proposition that such important policy issues should be determined in the first instance by the legislative branch after public debate – as opposed to having them decided by the judiciary in sealed, ex parte proceedings.

To be fair, even as the government was submitting its secret request to Ornstein, Comey was disavowing his former pro-democratic stance, and instead making it clear the government would try to find some other way to get orders forcing providers to comply.

But, given Ornstein’s invitation for Apple to lay out how onerous this is on it, Comey might get the democratic debate he once embraced.


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America’s Failed Quagmire

The WaPo has a report providing new (actually conflicting, especially as to start date) details on America’s “covert” efforts in Syria.

In all seriousness, Administration officials (some anonymous) and a former Syrian opposition figure told WaPo that the whole point of this was quagmire: weakening Bashar al-Assad, but not too much.

Supplied mostly from stocks owned by Saudi Arabia, delivered across the Turkish border and stamped with CIA approval, the [TOW] missiles were intended to fulfill another of the Obama administration’s goals in Syria — Assad’s negotiated exit from power. The plan, as described by administration officials, was to exert sufficient military pressure on Assad’s forces to persuade him to compromise — but not so much that his government would precipitously collapse and leave a dangerous power vacuum in Damascus.

Consider what this strategy means for civilians on the ground, especially refugees that the international community is already underfunding.

Even crazier, though, is that the US believed we could prevent our Saudi allies from pressing their advantage.

“A primary driving factor in Russia’s calculus was the realization that the Assad regime was militarily weakening and in danger of losing territory in northwestern Syria. The TOWs played an outsize role in that,” said Oubai Shahbandar, a Dubai-based consultant who used to work with the Syrian opposition.

“I think even the Americans were surprised at how successful they’ve been,” he added.


But the TOW missile program is already in progress, and all the indications are that it will continue. Saudi Arabia, the chief supplier, has pledged a “military” response to the Russian incursion, and rebel commanders say they have been assured more will arrive imminently.

In any case, our “strategy” in Syria seemed to misunderstand both our Saudi allies and Assad, not to mention Russia’s, intent (unless they intent was to expand the proxy war beyond Ukraine). As well as the consequences.

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Pure Michigan Trash Talk

Michigan’s official tourism and advertising campaign has been called “Pure Michigan” for a while now. They do some beautiful advertising that has commercials reaching nationwide, if not world wide. And so it is we go to Pure Michigan for this week’s trash talk. Because all the good ball is in Michigan this weekend.

First up in Pure Michigan is The Mighty Fighting Journalists of Northwestern at the Big House in Ann Arbor to take on obnoxious Coach Baggy Chinos and the Wolverweenies. Obviously, most Americans are properly rooting for the Journalists. Michigan got beat in week one when they went west to Rice-Eccles Stadium to visit Utah. Things did not turn out well for the Weens, but in hindsight it turns out that Utah is really good. Michigan has won all their games since then. Northwestern is undefeated and has been surprisingly good in getting there. The line favors Michigan by 10, and all the experts are picking them. I think 10 points is way too much with these two defensive minded teams (they rank one and two in defensive points allowed nationally), but no question Michigan is favored in the Big House. I think the game will come down to whether the Journalists can get Justin Jackson going on the ground. If they do, this could be an upset special. Frankly, the only other NCAA game of note is Cal at Utah. The last two undefeated teams in the Pac-12, and only one will leave still in that status. QB edge goes to Cal’s Jared Goff, but the Utes are awfully well coached and are at home. I’ll take the Utes.

The other Pure Michigan special this week is Cardinals at the Lions. The Battle of the Emptywheel Blog. The Kittehs are down on their luck, and got hosed at Seattle last week. The Cards got beat at home by the newly Todd Gurley invigorated Rams. The Cards were terribly off offensively. Much of that can obviously be attributed to St. Louis’ terrific defense, but it was more than that. Carson Palmer and the boys just never seemed in synch. I actually thought Detroit played a good game in Seattle and looked solid. It is still not clear they can keep Stafford from getting killed though, and that is not going to get any easier against the Cards defense. But the Lions have too much talent to lose every game, and they may well get off the snide this week in an upset.

Other games of interest in the NFL include Squawks at Bengals. This really could be a great game, and we are going to get a good glimpse as to whether Andy Dalton and the Bengals have really turned the corner this time. I think they have and beat the Squawks. Also the Rams visit the Tundra at Lambeau. The Rams are way better than you think, especially with Gurley untracked. But Lambeau, Rodgers and the Pack are a load I’m not sure St. Louis can overcome. Still, look for a great game. All the ESPN loud mouthed yokels are yammering about the Patriots at the Cowboys. This would have been worth the talk if Romo, Dez Bryant and a handful of others were not out for Dallas. But with a still pissed off Tom Brady, and Bill Bell coming off of an extra bye week to scheme? Yeah, good luck with that ‘Boys. Believe it or not, the Broncos at Raiders might also be pretty interesting.

The F1 Circus is in Sochi this weekend. There are still some rough edges on the young Sochi circuit. They barely got it ready for last year’s inaugural Russian Grand Prix. Far better this year, but still having growing pains. In spite of that, I really kind of Sochi. Toro Rosso’s Carlos Sainz had a nasty crash at Practice Three this morning, but has been pronounced okay at the hospital. Still, he will be held for observation, and will not join the grid tomorrow. Qualifying is going on as I write, with Rosberg and Hamilton fast, and Valterri Bottas and Vettel just behind as we reach the Q2 cutoff. Massa didn’t make Q3, but there is Bottas currently in P3. Bottas really clicks at Sochi, having made the podium last year. Massa, his Williams teammate, however, seems not to like Sochi. Was off the pace last year too. Weird.

Anyway, in other news Jeb! Bush did NOT, I repeat NOT, smoke weed with Bill Belichick in high school. Well, you know, of course not. Everybody knows Bill Bel smoked hash, not weed!

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Michael Mosman’s Deadlines Raise (More) Questions about the FISC Advocate

In the series of letters purporting to speak for “the judiciary,” Director of the Administrative Office of US Courts John Bates and (after Duff replaced him) James Duff expressed concern about how a FISC amicus would affect the timeliness of proceedings before the court. Bates worried that any involvement of an amicus would require even more lead time than the current one week requirement in FISC applications. He also worried that the presumption an amicus (and potentially tech experts) would have access to information might set off disputes with the Executive over whether they could really have it. Duff apparently worried that the perception that an amicus would oppose the government would lead the government to delay in handing over materials to the FISC.

Which is why I’m interesting in the briefing order Chief FISC Judge Thomas Hogan, signing for Michael Mosman, issued on Wednesday (see below for a timeline).

Back on September 17, Mosman appointed spook lawyer Preston Burton amicus. As part of that order, he gave the government 4 days to refuse to share information with Burton, but otherwise required Burton receive the application and primary order in this docket.

(Pursuant to 50 U.S.C. § 1803(i)(6)(A)(i), the Court has determined that the government’s application (including exhibits and attachments) and the full, unredacted Primary Order in this docket are relevant to the duties of the amicus. By September 22, 2015, or after receiving confirmation from SEPS that the amicus has received the appropriate clearances and access approvals for such materials, whichever is later, the Clerk of the Court shall make these materials available to the amicus.

Yet even after the almost month long delay in deciding to appoint someone and deciding that someone would be Burton, it still took Mosman two weeks after the date when Burton was supposed to have received the relevant information on this issue before setting deadlines. And in setting his deadlines, Mosman has basically left himself only 2 weeks during which time he will have to to decide the issue and the government will have to prepare to keep or destroy the data in question (in past data destruction efforts it has taken a fairly long time). That could be particularly problematic if Mosman ends up requiring the government to pull the data from EFF’s clients from the data retained under their protection order.

On November 28, the order authorizing the retention of this data expires.

To be fair, Mosman is definitely making a more concerted effort to comply with the appearance if not the intent of USA F-ReDux’s amicus provision than, say, Dennis Saylor (who blew if off entirely). And there may be aspects of this process — and FISC’s presumed effort to start coming up with a panel of amici by November 29 — that will take more time than future instances down the road.

Still, it’s hard to understand the almost 3 week delay in setting a briefing schedule.

Unless the government slow-walked giving even a spook lawyer not explicitly ordered to represent the interests of privacy approval to receive and then a packet of documents to review.

I suspect this represents a stall by the government, not FISC (though again, the month long delay in deciding to appoint an amicus didn’t help things, and FISC’s thus far 4 month delay in picking amici likely doesn’t help either). But whatever the cause of the delay, it may indicate a reluctance on someone’s part to use the amicus as intended.


July 27: ODNI declares that “NSA has determined” that “NSA will allow technical personnel to continue to have access to the historical metadata for an additional three months”

By August 20: Government asks for permission to retain data past November 28 (the government must submit major FISA orders at least a week in advance)

August 27: Mosman approves dragnet order, defers decision on data retention

September 17: Mosman appoints Burton and orders the government to cough up its application and the full order

September 21: Last date by which government can complain about sharing information with Burton

September 22: Date by which Burton must receive application and order

October 7: Mosman sets deadlines

October 29: Deadline for Burton’s first brief

November 6: Deadline for Government response

November 10: Deadline for Burton reply, if any

November 28: Expiration of authorization to retain data

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If Ending DOD’s Train and Assist Program Is about Returning to Covert Status, Will Congress Get Details?

When Mike Lee, Joe Manchin, Chris Murphy, and Tom Udall wrote the Administration calling for an end to the Syria Train and Equip Program last week, they addressed it to CIA Director John Brennan, along with Defense Secretary Ash Carter (its primary addressee, given the clear reference to details about DOD’s T&E mission) and Secretary of State John Kerry.

It appears the Senators got the result they desired. As a number of outlets are reporting, Carter has decided to end DOD’s T&E program, which has done little except arm al Qaeda affiliates in Syria. But it’s not that we’re going to end our involvement in Syria. The stories provide different descriptions of what we intend to continue doing. The NYT, which pretended not to know about the CIA covert program, described a shift of training to Turkey, while discussing armed Sunnis in eastern Syria.

A senior Defense Department official, who was not authorized to speak publicly and who spoke on the condition of anonymity, said that there would no longer be any more recruiting of so-called moderate Syrian rebels to go through training programs in Jordan, Qatar, Saudi Arabia or the United Arab Emirates. Instead, a much smaller training center would be set up in Turkey, where a small group of “enablers” — mostly leaders of opposition groups — would be taught operational maneuvers like how to call in airstrikes.


The official said the training was “to be suspended, with the option to restart if conditions dictate, opportunities arise.” The official also said that support to Sunni Arab fighters in eastern Syria was an example of focusing on groups already fighting the Islamic State, also known as ISIS or ISIL, “rather than using training to try to manufacture new brigades.”

The LAT to its credit did acknowledge the parallel CIA program in a piece vaguely describing our “new” approach of working with a wide range of groups on the Turkish border.

Under the new approach, the administration will continue to work with a range of groups to capitalize on the successes that Kurdish, Arab and Turkmen groups have had over the last several months driving the Islamic State forces out of much of the Turkey-Syria border region.‎


The decision to end the Pentagon training program does not appear to immediately affect a separate program run by the CIA.

While Ash Carter’s public remarks associated with this discussion make it clear Russia’s actions in the same region remain a concern, the reporting I’ve seen thus far hasn’t tied the decision to end the DOD program to the need to respond to Russia in any way.

Which raises the question: is this just an attempt to shift our existing T&E efforts entirely under a covert structure again? There are many reasons why you’d want to do that, not least because it would make it a lot easier to hide that not only aren’t your “rebels” “moderate,” but they’re al Qaeda affiliates (as David Petraeus and others were floating we should do). Given Qatari and Saudi efforts to flood more weapons into Syria in response to Russia’s involvement, you’d think the US would want to play along too.

But especially since Tom Udall is the guy who — a year ago — raised the crazy notion that Congress should know some details about the (at that point) two year long effort by CIA to support “moderate” forces …

Everybody’s well aware there’s been a covert operation, operating in the region to train forces, moderate forces, to go into Syria and to be out there, that we’ve been doing this the last two years. And probably the most true measure of the effectiveness of moderate forces would be, what has been the effectiveness over that last two years of this covert operation, of training 2,000 to 3,000 of these moderates? Are they a growing force? Have they gained ground? How effective are they? What can you tell us about this effort that’s gone on, and has it been a part of the success that you see that you’re presenting this new plan on?

… I wonder whether Congress has ever gotten fully briefed on that program — and whether they would going forward.

After all, none of the men who signed this letter would be privy to how a covert effort to train rebels was going under normal guidelines unless Udall or Murphy were getting details on the Appropriations Committee.

So while it may be — and I think it likely this is — just an effort to make it easier to partner with al Qaeda to defeat Bashar al-Assad and Putin (teaming with al Qaeda to fight Russia! just like old times!) — I also wonder whether this is an effort to avoid telling most of Congress just how problematic (even if effective from an anti-Assad perspective) both the DOD and CIA effort are.


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On Same Day Cabinet Decided to Punt on Back Doors, Tim Cook Said NSA Would Stop Asking for Them

The WaPo has an update on the Administration’s debate about whether to push for legislation for back doors. It reports that the Obama Administration decided to punt — and not ask for legislation right now while continuing efforts to cajole companies to back door their own products. WaPo even provided the date that decision was made: October 1.

“The administration has decided not to seek a legislative remedy now, but it makes sense to continue the conversations with industry,” FBI Director James Comey said at a Senate hearing Thursday of the Homeland Security and Governmental Affairs Committee.

The decision, which essentially maintains the status quo, underscores the bind the administration is in — between resolving competing pressures to help law enforcement and protecting consumer privacy.


The decision was made at a Cabinet meeting Oct. 1.

“As the president has said, the United States will work to ensure that malicious actors can be held to account – without weakening our commitment to strong encryption,” National Security Council spokesman Mark Stroh said. “As part of those efforts, we are actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services.”

I’m particularly interested in the date given that’s when Tim Cook gave an interview (see NPR’s excerpts) where he stated fairly clearly the NSA would not ask for back doors, but FBI might.

Apple CEO Tim Cook said he doesn’t think we will hear the U.S. National Security Agency asking for a back door into our iPhones, at least not any more. In an interview on NPR’s All Things Consideredon Thursday, Mr. Cook implied that even the FBI is coming around on the need for end-user encryption.

The intelligence community has asked for a back door. They want access into the communications that are going through Apple’s devices. No?

Tim Cook: I don’t think you will hear the [National Security Agency] asking for a back door.

Robert Siegel: The FBI?

Tim Cook: There have been different conversations with the FBI, I think, over time. And I’ve read in the newspapers myself. But my own view is everyone’s coming around to some core tenets. And those core tenets are that encryption is a must in today’s world. And I think everyone is coming around also to recognizing that any back door means a back door for bad guys as well as good guys. And so a back door is a nonstarter. It means we’re all not safe.

When I first read this interview, I was struck by Cook’s certainty about the NSA, compared to his uncertainty about FBI. I wondered at the time whether that certainty meant that the rumored FISC request for a back door was ultimately rejected, which would close off the possibility for NSA for the moment(that would affect FBI, too, but only part of FBI’s requests).

Given the coincidence of these two events — Cook’s stated certainty and the cabinet decision not to pursue back doors right now — I’m all the more curious.

Has FISC secretly told the government it can’t force Apple to back door its products?

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Obama’s Apology Fails to Convince Médecins Sans Frontières DOD’s Investigation Is Adequate

The MSF hospital in Kunduz after a US plane bombed it.

The MSF hospital in Kunduz after a US plane bombed it.

I noted yesterday how General John Campbell and Senator Dan Sullivan responded when Jeanne Shaheen raised the possibility of an independent investigation into the attack on the Médecins Sans Frontières hospital in Kunduz.

Since that time, MSF had a press conference reiterating its call for an independent investigation and released before and after video from the hospital, with lots of pictures of children receiving medical care.

Yesterday, when a journalist asked if President Obama planned to apologize to MSF, Press Secretary Josh Earnest said “we would want the investigations to be completed, to have a full accounting of what transpired, and some discussion about what next steps will be necessary,” suggesting the President would wait for the conclusions of the investigation.

Nevertheless, just a day later, Obama called MSF president Joanne Liu today and did just that, apologized.

While apology has been widely reported, what I have not seen reported is that Obama offered the same spiel that General Campbell offered yesterday, about how independent and swell DOD’s investigation would be.

President Obama spoke today by phone with Doctors Without Borders (MSF) International President Dr. Joanne Liu to apologize and express his condolences for the MSF staff and patients who were killed and injured when a U.S. military airstrike mistakenly struck an MSF field hospital in Kunduz, Afghanistan. During the call, President Obama expressed regret over the tragic incident and offered his thoughts and prayers on behalf of the American people to the victims, their families, and loved ones. Acknowledging the great respect he has for the important and lifesaving work that MSF does for vulnerable communities in Afghanistan and around the world, the President assured Dr. Liu of his expectation that the Department of Defense investigation currently underway would provide a transparent, thorough, and objective accounting of the facts and circumstances of the incident and pledged full cooperation with the joint investigations being conducted with NATO and the Afghan Government.

Shortly thereafter, Obama called Afghan President Ashraf Ghani, offered an apology to him too, then reiterated their ongoing cooperation.

I’m glad Obama apologized to MSF for DOD killing 22 people at their hospital, most of them MSF workers.

But given the effort to convince everyone that this investigation — which contrary to promises has already proven to be less transparent than leaks to the NYT — will be adequate, I can’t help but conclude that a similar effort at persuasion was as much the purpose of Obama’s call as any expression of remorse.

The US sure seems to want to avoid an independent investigation into this bombing. Why?

Update: And MSF isn’t buying it. Liu came reiterated her call for an independent investigation after the call.

We received President Obama’s apology today for the attack against our trauma hospital in Afghanistan. However, we reiterate our ask that the U.S. government consent to an independent investigation led by the International Humanitarian Fact-Finding Commission to establish what happened in Kunduz, how it happened, and why it happened.

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The Two Strands of (Non) Accountability on Kunduz

Contrary to much sloppy reporting, General Campbell did not change his story about the Kunduz strike in his testimony Tuesday. As I noted Monday, towards the end of his press conference that day, Campbell admitted, “Afghans asked for air support from a Special Forces team that we have on the ground to train, advise, and assist, in Kunduz,” which is precisely what some people claim was “new” yesterday.

The question, then, should turn to what the relationship between the US Special Forces who called in the strike and the Afghans who asked for it was — and what the thinking of both was. On that point, Campbell dodged, claiming that (and any details about Rules of Engagement) would come out in the investigation. Campbell was very insistent that SOF was only on the ground for a train, advise, and assist mission. But that clearly addressed their general status, not what they were doing at the moment the strikes were called in. And DOD-sourced reporting from last week made it clear US forces were doing more than training, advising, and assisting just days before the attack on Médecins Sans Frontières.

U.S. Special Forces traded fire with Taliban insurgents in the northern city of Kunduz, the U.S. military said Friday, a rare direct ground engagement for American troops stationed in the country.

The clash on Thursday marked the first time U.S. ground forces are known to have directly fought the Taliban since the militants stormed Kunduz on Monday. It came as the U.S. stepped up airstrikes this week against Taliban targets in Kunduz province and elsewhere in the country’s north.

U.S. Special Forces advisers “encountered an insurgent threat in Kunduz city” and “returned fire in self-defense to eliminate the threat,” said U.S. Army Col. Brian Tribus, spokesman for American and allied troops in Afghanistan.

About 100 U.S. and coalition special-operations forces advisers were deployed to Kunduz earlier this week to provide tactical guidance to their Afghan counterparts as they fought to reclaim the provincial capital from the Taliban.

So on Friday, DOD was willing to admit our TAA mission actually involved direct fire. The first reports from the field said that in response to direct fire, SOF called in air strikes. But as MSF called for investigations into a war crime, DOD switched that part of the story to a strict TAA role, without telling us where the forces who called in the strike were, or what they were doing.

Without answering that question, two stories have made it clear that whoever called in the strikes didn’t do what they should have with regards to vetting the strikes. There’s this WaPo story that notes AC-130 strikes, like that used in this attack, rely on visual targeting assist from the ground.

Unlike other military fixed-wing aircraft, an AC-130 is requested differently. While a jet requires a map coordinate to engage its target, the AC-130 relies on direction (a compass heading) and a distance to the enemy target from the friendly forces engaged on the ground. In short, it relies on visual targeting.

This difference might explain why the hospital was targeted even though Doctors Without Borders said it had given U.S. and Afghan forces its map coordinates before.

“It’s a visual acuity aircraft,” said a U.S. close-air support pilot who spoke on the condition of anonymity because of his active-duty status. “An AC-130 finds the friendly force, then fires over their left or right shoulder.”

The pilot went on to add that an AC-130 does not enter enemy airspace and look for targets. It specifically has to be guided onto the target by a force on the ground and will fire only after identifying friendly and enemy forces, he said.

It also notes that normally (Thursday’s events notwithstanding) when SOF comes under fire they (among other things) call in air strikes.

These “train, advise and assist” missions are a staple of U.S. Special Forces capabilities and have been conducted extensively in recent years. In combat situations, rather than return fire, U.S. troops on these missions are more likely to help direct communication, casualty evacuation and direct air support from an AC-130, for instance, if it is available.

As a result, there has been little direct contact between U.S. troops and the Taliban since most U.S. forces were relegated to the sidelines when official combat operations ended last year.

Last night, another passive voice-ridden NYT story reports that General Campbell, after promising full transparency, went around DC saying something rather different than what he was saying publicly: that what the WaPo says should have happened probably didn’t.

The American commander in Afghanistan now believes that United States troops who called in an airstrike that decimated a Doctors Without Borders hospital probably did not follow rules that allow for the use of air power only in dire situations, according to American officials familiar with the general’s thinking.

Under those rules, airstrikes can be authorized to kill terrorist suspects, to protect American troops, and in response to requests for help from the Afghan Army in battles that could significantly alter the military landscape in Afghanistan — such as the recent Taliban takeover of Kunduz — but not necessarily smaller firefights. The idea behind the rules of engagement was to give American troops leeway but not see them dragged back into daily, open-ended combat.

In private discussions with officials in Washington, Gen. John F. Campbell, the commander, has expressed his belief that the decision by Special Operations forces operating “in the vicinity” of the Afghan troops in Kunduz likely did not meet any of those criteria, according to the officials, who spoke on condition of anonymity because they were not authorized to discuss the incident.

The Special Operations forces also apparently did not have “eyes on” — that is, were not able to positively identify — the area to be attacked to confirm it was a legitimate target, before calling in the strike, the officials said.

If the NYT reporters who wrote this are aware that the MSF strike was the 12th in Kunduz province last week (to say nothing of the direct engagement by US forces), they failed to hint at that fact — perhaps because it would undermine much of this story.

In any case, even if Campbell’s non-transparent judgements are honest — that what caused the attack from the US stand point was a violation of procedures and/or rules of engagement — that shouldn’t end the story (but it appears to be doing so).

The one part of the story that has changed since Saturday was that the Afghans, and not the Americans, determined a strike was necessary (though that strike had to go through normal channels). Which ought to lead some focus back to what the Afghans were initially saying, which is that Taliban fighters were at the MSF compound (something MSF has vigorously refuted).

“When insurgents try to use civilians and public places to hide, it makes it very, very difficult, and we understand how this can happen,” Koofi said. “You have two choices: either continue operations to clean up, and that might involve attacks in public places, or you just let the Taliban control. In this case, the public understands we went with the first choice, along with our international allies.”

In Kunduz, the acting governor, Hamdullah Danishi, also suggested that the airstrike was warranted.

He said Taliban fighters had been using the Doctors Without Borders compound to plot and carry out attacks across the city, including firing rocket-propelled grenades from the property.

“The hospital campus was 100 percent used by the Taliban,” Danishi said. “The hospital has a vast garden, and the Taliban were there. We tolerated their firing for some time” before responding.

And some focus on the raid Afghan Special Forces launched on the hospital in July is also in order.

Afghan special forces raided a hospital run by medical aid group Médecins Sans Frontières in northern Afghanistan, in search of a suspected Al Qaeda operative being treated there, a commander of the elite force said on Thursday.

Raids on hospitals are rare because they are protected by international law and those run by foreign aid agencies in Afghanistan provide crucial support to war victims, who may travel for days to get assistance.

It was unclear if Wednesday’s raid by a contingent of special forces from the capital, Kabul, had succeeded in capturing its target, Kunduz special forces commander Abdullah told Reuters.

“I was told he was an al Qaeda member being treated at the MSF hospital,” Abdullah said.

Even if Afghan forces genuinely believed the Taliban was operating from within the hospital, there would be a lot of hoops they’d have to jump through before treating it as a legitimate target. If Afghan forces had SOF strike the hospital because they didn’t like that it accepted all people, then it’d be a clear war crime.

The point is, assuming US forces weren’t directly engaged in the fighting and didn’t themselves call in the strike, there are two levels of accountability here: on the Afghans who asked for the strike, and on SOF, which vetted it and carried it out.

If the Afghans deliberately targeted a hospital on unsound grounds, then the strike is in no way an accident — and may have been enabled when Americans failed to follow procedure.

There seems to be a strong desire to ignore the Afghan side of the equation (in part because the Afghans and the US military both want Obama to approve continued troops in Afghanistan). But no one should be declaring this an “accident” or “mistake” without fully accounting for the Afghan decision to call in the strikes. And that hasn’t happened yet.

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The Great Transformation Part 1: The Market

The Great Transformation by Karl Polanyi opens with a discussion of the changes in industrial societies in the 1920-30, which he says wiped out the social structures of the 19th Century. His explanation of that change begins with a history of markets, and their role in creating what he calls the market society. In mainstream economic theory, there is no definition of the term market, as I discuss here. I found a definition of market economy in Economics by Samuelson and Nordhaus, 2005 ed. p. 26.

A market economy is an elaborate mechanism for coordinating people, activities, and businesses through a system of prices and markets. It is a communication device for pooling the knowledge and actions of billions of diverse individuals. P. 26.

This is obviously not an analytical definition. I argue here that it means that a market economy is any economy except a command and control economy.

Polanyi takes a completely different tack in defining the term market. He begins with a discussion of the way economies functioned in the earliest societies. Production and distribution of goods, he says, are based on three different schemes. In some societies, all production from hunters and gatherers is shared as needed, a principle of reciprocity. In some, all such production is given to one person, a headman or a chief, whose responsibility it is to distribute them properly, a principle that Polanyi calls redistribution. The third principle is householding. In these societies, the basic unit of production is the household which may be as small as an extended family or much bigger. Each household is responsible for providing itself with its needs. In each society, the motives of production and of exchange of products are different, and each shares some facets of each of these three principles. Here’s Polanyi:

Broadly, the proposition holds that all economic systems known to us up to the end of feudalism in Western Europe were organized either on the principle of reciprocity or redistribution, or householding, or some combination of the three. These principles were institutionalized with the help of a social organization which, inter alia, made use of the patterns of symmetry, centricity, and autarchy. In this framework, the orderly production and distribution of goods was secured through a great variety of individual motives disciplined by general principles of behavior. Among thee motives gain was not prominent. Custom and law, magic and religion cooperated in inducing the individual to comply with rules of behavior which, eventually, ensured his functioning in the economic system. P. 57

Polanyi says that Aristotle drew a distinction between householding and production for gain. The household produced for its own needs. When production exceeded its needs either accidentally or purposefully, it sold the remainder for money to buy things it could not produce. Aristotle and Polanyi do not see this as a movement away from the basic system of householding, so long as the excess production could otherwise have been used by the household.

The genius of Aristotle is his recognition that the sale of the excess was motivated by a search for gain, not by the relations inherent in the society itself or in any household. Inside the groups, the basis of exchange remains what it was before, such as distribution by the head of the household. But gain was the primary motive for activity in the open markets. Here’s Polanyi on this difference:

In denouncing the principle of production for gain as boundless and limitless, “as not natural to man,” Aristotle was, in effect, aiming at the crucial point, namely, the divorce of the economic motive from all concrete social relationships which would by their very nature set a limit to that motive. P. 57.

It’s here we find Polanyi’s definition of the term “market”:

A market is a meeting place for the purpose of barter or buying and selling. P. 59

Polanyi explains that standard economics is based on some other understanding of the term markets, and that his research shows that the facts contradict every element of the standard definition and the role of markets in society before Mercantilism took over.

The reasons are simple. Markets are not institutions functioning mainly within an economy, but without. They are meeting place of long-distance trade. Local markets proper are of little consequence. Moreover, neither long-distance nor local markets are essentially competitive, and consequently there is, in either case, but little pressure to create territorial trade, a so-called internal or national market. Every one of these assertions strikes at some axiomatically held assumption of the classical economists, yet they follow closely from the facts as they appear in the light of modern research. P. 61

He goes on to show that as markets began to form, society began to regulate and control them. In some societies, the tools were custom and ritual. In larger societies, governments took over control, along with other institutions.

Polanyi says that markets are not part of a society, but outside it. Societies impose controls to protect themselves from these intruders.

As a side note, this simple definition coupled with the discussion of social control fits pretty well with my definition, and with my motivation for the definition, which is set out in that post. Perhaps that explains why I like this book.

A market is the set of social arrangements under which people buy and sell specific goods and services at a specific point in time.

Social arrangements means all of the things that constrain and organize human action, including laws, regulations, social expectations, conventions, and standards, whether created or enforced by governments, institutions or local traditions.

This summary of the early history of markets in The Great Transformation gives, I hope, a good sense of the basis of Polanyi’s argument. It differs from the standard economics version, where markets arose spontaneously out of people’s general love of truck and barter, and the introduction of coinage to ease the problems of different levels of value. There are substantive criticisms of Polanyi’s history, one of which was suggested by commenter Alan: The Reproving of Karl Polanyi, Santhi Hejeebu; Deirdre McCloskey Critical Review; Summer 1999, I’ll discuss some of the criticisms, but for now let’s take time to think about this alternative history. We know a lot of the support for neoliberalism arises from the story of the evolution of the market system in what seems to be a natural and inexorable process from the earliest times to the present. It makes it seem so natural, so obviously human and desirable. Polanyi asks us to consider this simple question: What if standard economic history is just plain wrong?

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General Campbell Not a Fan of an Independent Investigation into MSF Strike [Updated]

General John Campbell, who is in charge of military operations in Afghanistan testified before the Senate Armed Services Committee Tuesday. There was a telling exchange between him and Jeanne Shaheen.

After talking about how much everyone regrets the accident of targeting Médecins Sans Frontières, Shaheen asked Campbell if he would support an independent inquiry into what happened (that MSF continues to demand). Here’s the exchange:

Shaheen: I appreciate your talking about the effort to conduct an investigation on our part but do you have any reason to object to having an independent investigation done by the UN or another independent body of what happened?

Campbell: Ma’am, I have trust and confidence in the folks that will do the investigation for NATO, the folks that’ll do the investigation for DOD and the Afghan partners, and so all the very very tough questions that we’re asking they will get after that. My investigating officer again is a Brigadier General, Rich Kim, I have all the trust and confidence that he will, he will get answers to all of those questions, and he’ll continue to work that very hard and will continue to be transparent and provide all of that to this committee and to the American people as we move forward.

Shaheen: But as I understand your answer, then, you would not object to and would cooperate with an independent body, other than NATO or our Department of Defense in doing that kind of an investigation.

Campbell: I would let my higher headquarters or senior personnel make that decision. We are reaching out, again, to Doctors without Borders and the personnel that were on site, making sure that we get all side of the story, I did talk again to the investigating officer this morning, he has done that, he has talked to a few, he’s continuing to try to get out to locations where he can talk to doctors, nurses, survivors of that to make sure he gets all of that.

All of which is a roundabout way to say he’s been sent out here to try to squelch calls for an investigation by anyone besides a Brigadier General. Later in the hearing, Campbell dodged a question from Mike Rounds about how long this might take, though did say he would probably have a preliminary investigation done in a month.

Someone must have been panicked by Shaheen’s question because Dan Sullivan, in using his term to clean up some issues, addressed Shaheen’s question and helped the General shoot down the possibility of an investigation.

Sullivan: Senator Shaheen had asked about a UN investigation, possibly, into the hospital accident. Does the UN usually investigate major deliberative — deliberate attacks on civilians in Afghanistan when they’re conducted by the Taliban?

Campbell: Sir, I haven’t seen it in the past. Quite frankly I don’t know —

Sullivan: I don’t think they do, typically. Do you think it would seem fair or balanced if the UN conducted an investigation which was clearly on something that was accidental? — the hospital bombing — when they don’t investigate deliberate Taliban killing of civilians. Do you think that would be viewed as fair or balanced or as something the Command needs or would welcome?

Campbell: Sir I can’t comment on how the UN would do that. What I can comment on as I said up front earlier is I have complete trust and confidence in the team that we have to be thorough, transparent. And if there were mistakes made, we’ll make sure that those come out, if there’s people we have to hold accountable, we’ll make sure we’ll do that. I have every trust and confidence in the US and the NATO investigation ongoing, uh, —

Sullivan: I think so do, most of us here do as well. Not, I don’t, I certainly don’t think an additional investigation by the UN would be warranted or be welcome by this committee.

In other words, people really don’t want an independent investigation of this.

Update: Sullivan is wrong about whether the UN investigates Taliban killing of civilians. While the UN hasn’t done a lot of recent human rights reporting — aside from a report on the status of women — when it did do reporting It includes the Taliban’s targeting of civilians in its findings, as in this 2008 report.

27. Over the past four months, the Taliban and other anti-government elements have killed approximately 300 civilians. Roughly three quarters of these civilians were killed in suicide attacks. While the majority of suicide attacks appear to target legitimate military objectives, many of these attacks are nonetheless unlawful because it should be obvious that they will result in far more civilian than military deaths.

28. Most of the other civilians killed by the Taliban die as a result of targeted assassinations. While these killings are fewer in number, they are significant in terms of intimidating and repressing the population. Often, killing one teacher will close an entire area’s schools, killing one proponent of the Government will intimidate many others, and killing one worker will end humanitarian access to a district. These assassinations are completely unlawful, and their consequences are dramatic. The Taliban have also engaged in a high level of unlawful killing of non-civilians.

There’s far more discussion of the Taliban’s war crimes, including discussions of specific incidents, in this 2009 report.

Update: I understated how much work the UN is doing on human rights violations in Afghanistan, as Sarah Knuckey lays out at Just Security.

The UN’s mid-year and annual reports on civilian casualties in Afghanistan typically detail anti-government attacks. The photo on the front cover of the most recent UN report on Afghanistan, for example, shows the horrific scene directly after an anti-government element attack in April 2015, in which 32 were killed and 126 injured. The report’s executive summary begins with the testimony of a schoolteacher who witnessed the attack and describes “the blood, the human limbs, the corpses, and the other wounded people all over the street.” Pages 41-77 of the report detail Taliban violence, describing suicide attacks, the use of improvised explosive devices, indiscriminate and deliberate attacks on civilians, and the war crime of murder. It includes a section specifically on suicide and complex attacks, in which 1,022 civilian casualties occurred in just the first six months of 2015.

Many other UN reports also detail the findings of its investigations into Taliban/anti-government element attacks: July 2014 (the cover shows a child injured by a Taliban attack on the Serena hotel), February 2014 (the cover shows a child injured in an IED attack), July 2013 (the cover shows children running from a Taliban attack), February 2013 (the executive summary begins with a gruesome witness account of an IED attack, obtained through UNAMA interviews) , February 2012 (cover shows the aftermath of a suicide attack), July 2012 (cover shows the consequences of an IED attack that killed 13 and injured 57), and so on. A great many UN press statements also regularly condemn Taliban violence.

There are also examples of other parts of the UN system reporting on Taliban attacks. In 2009, for example, a separate part of the UN – the UN Special Rapporteur on extrajudicial executions – carried out investigations in Afghanistan, including into killings by the Taliban, and detailed reckless as well as deliberate Taliban attacks, including Taliban assassinations of civilians.

Update: This post has been significantly updated with the transcripts of the two exchanges and links to UN reporting on Taliban targeting of civilians.

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bmaz @OBEYshiba Yep. Finally starting to cool off a little.
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