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Who Will the Government Scapegoat Now on the Wuhayshi Leak?

Yesterday, I noted that McClatchy, the first outlet to publish (though probably not the first outlet to get the leak) the news that the big terror alert stems from an intercepted communication between Ayman al-Zawahiri and Nasir al-Wuhayshi, clearly labeled its source as a Yemeni official.

HuffPo not only confirmed this, but got McClatchy’s editor James Asher to provide a little lesson in journalism.

Our story was based on reporting in Yemen and we did not contact the administration to ask permission to use the information. In fact, our reporter tells me that the intercept was pretty much common knowledge in Yemen.
On your larger question about the administration’s request, I’m not surprised. It is not unusual for CNN or the NYT to agree not to publish something because the White House asked them. And frankly, our Democracy isn’t well served when journalists agree to censor their work.

As I’ve told our readers in the past: McClatchy journalists will report fairly and independently. We will not make deals with those in power, regardless of party or philosophy.

Now, predictably, some of the same people who generated the outrage over UndieBomb 2.0 have squawked about the danger of this leak (which, if it is what has been described, must be damaging).

“I’m very worried about leaks to the media of classified information because it warns the enemy,” Sen. John McCain, R-Ariz., told Ward. “That’ll be the last intercept of that kind, of means of communication that we intercept.”

Added Sen. Lindsey Graham, R-S.C., “If we compromise our ability to find out what these guys are up to and stop them before they act, we’ll pay a heavy price. They’re not deterred by dying. They embrace dying. They just want to take me and you with ’em.”

Frankly, McCain and Lindsey are right this time around. This feels like a politicized leak, and if the underlying intelligence was what the reports say, it may well badly damage our legitimate SIGINT efforts.

All that said, I confess I popped a little popcorn when I read this last night. Because it’s clear the Yemenis weren’t the only ones leaking like a sieve. Someone in the Administration (NYT’s sources)  It’ll be hard for the Administration to target McClatchy given that they’ve already made clear where their source is (though I can’t help to suspect McClatchy’s sharp response to relates to the reported treatment of McClatchy freelancer Jon Stephenson). So who are they going to scapegoat this time?

Declaring “Wars” the President Didn’t Ask For

I’ll probably have a few posts on Harold Koh’s speech opposing what he calls the “Forever War” at the Oxford Union. For now, I want to look at his argument against a new Authorization to Use Military Force.

I strongly disagree with those who claim that new legislation is now necessary to authorize the Administration to fight against new enemies. The burden of proving that such legislation would be either necessary or wise should fall on the proponents. As a lifelong international and constitutional lawyer who has worked on these legal issues for a decade, I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat. Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration. Nor would adopting new domestic legislation make actions in preemptive self-defense lawful under international law. And unless we can clearly define just who the new enemies are–and why existing legal authorities are insufficient to defend ourselves against them–we have no basis for passing new laws that would perpetuate the Forever War against shadowy foes whose association with those who have attacked us on 9/11 cannot be proven.

It’s hard to tell where the boundaries between good faith and deception lie here. After all, in several places in the speech — including this passage purportedly distinguishing what Obama has done from what Bush did — Koh’s language admits the possibility that Congressional sanction for military force is not the only authority Obama is working with (though he does admit that Congressional authority is one source of authority).

First, the Obama Administration has not treated the post-9/11 conflict as a Global War on Terror to which no law applies, in which the United States is authorized to use force anywhere, against anyone. Instead, it has acknowledged that its authority under domestic law derives from Acts of Congress, not just the President’s s vague constitutional powers.

And so when he says things like “I see no proof that the U.S. lacks legal authority to defend itself against those with whom we are genuinely at war or who pose to us a genuine and imminent threat,” it seems likely he’s preserving the ability to rely on Article II authority for something called an “imminent threat.” The same is true when he invokes “existing legal authorities” when he talks about fighting people who are clearly not Al Qaeda.

In other words, even while he seems to be opposed to treating our newer enemies as war opponents, he also seems to be reserving the right to rely on Article II authority to go after them. Which is not necessarily a better proposition for those who truly value other tools rather than killing.

That’s why I’m struck by this sentence.

Significantly, Congress has never declared war against an enemy when the President has not asked for such a declaration.

What Koh seems to be worried about is shifting the balance of the Youngstown test — whether Presidential power is expansive or limited — of the AUMF itself (Koh pretends authorizing military force is the same thing as declaring war, but in any case, last I checked, the authority to declare war belonged to Article I).

That’s true, first of all, because the way the existing AUMF was written — which allows the President to determine the enemy and has been interpreted consistently but wrongly as authorizing war powers here in the US. A new AUMF might (though probably wouldn’t) explicitly clarify the limits to war powers in the US or at least with US citizens.

But as even the 2012 NDAA showed, it can work the other way, with Congress requiring that Obama default to military detention and commissions with any new terrorist suspects. Mind you, Obama took the limits on what he could do in Gitmo far, far more seriously than he did the requirement that DOD give every one of its detainees a meaningful review, so he’s already picking and choosing what legislative requirements he fulfills. But in theory at least, Congress can mandate the President treat certain targets as enemies of war, rather than criminals.

But that, it seems to me, is ultimately what this debate about a new AUMF comes down to. Koh and, presumably, others who have served the President won’t want Congress to change the delicate balance that offers the President a great deal of flexibility to operate under both the AUMF and Article II. And to some degree, they’re right to worry about what batshit stuff the Lindsey Grahams of the world will mandate. But I suspect they’re just as worried that a new AUMF will put real limits to the President’s current fairly unlimited authority.

Look, I don’t trust Congress to write a new AUMF either. If they do one, it’s going to contain all manner of batshittery.

But bizarrely, in our crazy world, passing a new one might actually be a more effective way to limit what the President can and can’t do as anything else that has been tried. If we want to force the Executive Branch to stop waging war against Americans in America, we’re going to have to do so explicitly.

Sheldon Whitehouse: Cybertheft Is [May Be] Biggest Transfer of Wealth in History

In an attempt to scare Congress into passing the cybersecurity legislation they failed to pass last year, Sheldon Whitehouse scheduled a hearing on cybersecurity today. In the hearing — and in this op-ed he penned with Lindsey Graham — he repeated a claim he has made before: cybertheft may be the biggest “illicit” transfer of wealth in history.

Almost every facet of American life is threatened when intruders exploit our cyber-vulnerabilities. And the risk is not from China alone. Foreign governments such as Iran and terrorist groups such as al-Qaida seek to worm into national infrastructure and threaten catastrophe here at home. Foreign agents raid companies, stealing plans, formulas and designs. Foreign criminal networks take money out of banks, defraud consumers with scams and sell illicit goods and products, cheating U.S. manufacturers. It may be the greatest illicit transfer of wealth in history. [my emphasis]

I think in the hearing itself, Whitehouse wasn’t as careful to always use that word “might.”

The greatest illicit transfer of wealth in history.

Don’t get me wrong: cyberattacks of all sorts are a real threat. They cost consumers a great deal of inconvenience and, at times, lots of money. They cost defense contractors far more (though of course, some of that is built into our model of defense). They cost sloppy companies as well.

But the biggest illicit transfer of wealth in history?

Ignore recent unpunished giant transfers of wealth in the wake of the financial crisis, which the Senate Judiciary Committee has largely ignored.

I guess the reason I find this so stunning is all the obviously huge transfers of wealth it ignores that were part of slavery and colonization.

Were those licit?

Those were, like Chinese or Iranian or Russian cyberattacks on the US, examples of states (and private entities) taking advantage of vulnerabilities elsewhere. They were certainly considered legitimate at the time, because Europeans got to write the history of colonization, and because they made up claptrap about “civilization” to justify it. But from a distance they look more like the kind of exploitation states often engage in if they’ve got an obvious advantage over another state or organization.

All that’s not to say Montezuma shouldn’t have resisted the Spaniards. That’s not to say we shouldn’t defend against cyberattacks.

But what really makes the US so vulnerable to cyberattacks are 1) that we’re so reliant on the Internet and 2) we’re so reliant on intellectual property (indeed, the very claim that cybertheft is the biggest transfer of wealth relies on a certain understanding of IP as wealth that itself depends on a legal infrastructure that is contingent on our relative world power). And also that so much of our critical infrastructure and IP holders are in private hands and therefore much harder to demand diligence from. That is, our vulnerability to cyberattacks is in part a fragility of our own bases for power (a vulnerability that will probably end up being less lethal than the fact that the immune systems of indigenous peoples hadn’t been exposed to European diseases).

Also, this entire discussion — which danced around the question of an international regime that might limit such attacks — completely ignored the StuxNet attack, the fact that a nation as vulnerable as we are pushed the limits of the offensive capability first. One of the witnesses (I think FBI Assistant Director Jonathan Demarast) even suggested that if our government were chartered to attack the private sector (cough, Echelon) of other countries we’d be damn good at it too — as if our attacks on the public infrastructure of Iran doesn’t count.

I get the value of a good fear campaign (I wish Whitehouse would fearmonger more in his regular addresses on climate change). But there’s fearmongering and there’s absurdity. And I think suggesting that cybertheft is worse than the stealing of entire continents is the latter.

The Folks Who Brought You Military Detention in the NDAA Are Rewriting the AUMF

Yesterday, the Senate Armed Services Committee announced a hearing to revisit the 2001 Authorization to Use Military Force. In addition to a bunch of DOD figures (but not the recently departed Jeh Johnson, the DOD-connected person who said the most interesting things about the AUMF), it’ll have (I’ve linked their most salient comments on the AUMF):

Rosa Brooks, Professor of Law, Georgetown University Law Center

Geoffrey Corn, Professor of Law, South Texas College of Law

Jack Goldsmith, Professor of Law, Harvard Law School

Kenneth Roth, Executive Director, Human Rights Watch

Charles Stimson, Manager, National Security Law Program, The Heritage Foundation

Curiously, John Bellinger who (as far as I understand) started the discussion of a new AUMF is not slated to testify. Also note that the Deputy Director of Special Operations for Counterterrorism will testify, but no one from CIA is scheduled to; while JSOC can operate under the President’s inherent authority, it likely prefers the legal cover of an AUMF (and therefore may be one of the entities pushing for an AUMF that matches reality on the ground).

Politico reports that this hearing is more than speculative: Levin and no-longer-SASC-Ranking-Member-but-he-might-as-well-be John McCain are planning to rewrite the AUMF, with help from Bob Corker, Dick Durbin, and Lindsey “all detainees must be military” Graham.

And if the inclusion of Graham in that group doesn’t scare you, remember that this crowd is substantively the same one that enshrined military detention in 2012’s NDAA. While that effort might be regarded as “reasonable” Carl Levin and John McCain’s attempt to present something more reasonable than House Armed Services Committee Buck McKeon was pushing for, and while the NDAA originally included exceptions for US citizens, in the event, the White House pushed Carl Levin to effectively rubber stamp its claims to unlimited authority, including detaining (or killing) US citizens.

And if that doesn’t have you worried enough about this effort, consider this quote, which mocks the contributions Rand Paul or Ted Cruz might make to this debate.

“Can you imagine what Paul or Cruz would do with this?” said one top Democratic aide. “It could be a disaster. And it would be worse in the House.”

As a threshold matter, a top aide who can’t distinguish between Paul’s more heartfelt libertarianism from Cruz’ authoritarianism pretending to be libertarianism is a concern. But to call the influence of both as “a disaster” is troubling.

Ultimately, though, what is likely to happen with this debate is that all players will be unwilling to discuss openly what we’ve actually been doing in the name of war against al Qaeda, up to and including waging war in the “homeland.”  That’s one thing the 2001 AUMF was written to exclude. And I can almost guarantee you, it’s an authority the President — and the top Democratic aides who mock Rand Paul — will want to preserve.

Two Years after Missing Abdulmutallab because of a Spelling Variance, Government Missed Tsarnaev because of a Spelling Variance

On the Sunday shows yesterday, House Intelligence Chair Mike Rogers suggested that the government missed Tamerlan Tsarnaev’s trip to Russia in 2012 because he used an alias. This morning, Lindsey Graham explained that the problem was slightly different. Tamerlan’s travel documents misspelled his name.

“He went over to Russia, but apparently, when he got on the Aeroflot plane, they misspelled his name,” Graham, a South Carolina Republican said on Fox television this morning. “So it never went into the system that he actually went to Russia.”

Graham, a member of the Armed Services Committee, said in answer to a follow-up question that he did not know whether Tsarnaev, the 26-year-old terrorist suspect who died early Friday following a shootout with law enforcement, had misspelled his name on purpose.

The FBI “said Aeroflot gave us the information” that Tsarnaev had traveled there, Graham said, though he did not specify when that occurred.

Now, Lindsey doesn’t appear to know whether misspelling was the government’s or Aeroflot’s fault or Tamerlan’s deceit. Assuming Lindsey’s right about the larger point, whatever the source, a misspelling suggests a very different issue than an outright alibi (which would raise questions about the documents Tamerlan used, rather than the tracking of those documents).

Update: At the very end of the Senate Judiciary Committee Immigration hearing, Chuck Schumer said the error arose from Aeroflot typing in Tamerlan’s name incorrectly, so it appears it was not an attempt to deceive by Tamerlan.

Two years before Tsarnaev departed for Russia in January 2012, the government spent a good deal of time reviewing what prevented the government from responding to the several warnings about Umar Farouk Abdulmutallab, the UndieBomber, to prevent him from traveling to the country. One of the problems (though by no means the most serious one), was that the cable conveying warnings from Abdulmutallab’s father spelled his name wrong.

As was widely reported within hours of the failed bombing attempt, Abdulmutallab’s father—a former Nigerian government minister and prominent banker—went to the US embassy in Abuja in November to warn that his son was involved with radical Islamists in Yemen and had broken off contact with his family. The family said they had given US officials extensive information about their son in the expectation that they would “find and return him home.”

In his prepared statement to the House Committee on Homeland Security on January 27, State Department Under-Secretary for Management Patrick Kennedy said: “In the case of Umar Farouk Abdulmutallab, on the day following his father’s November 19 visit to the Embassy, we sent a cable to the Washington intelligence and law enforcement community through proper channels (the Visas Viper system) that ‘Information at post suggests [Farouk] may be involved in Yemeni-based extremists.’”

Kennedy confirmed that all US intelligence agencies received warnings that Abdulmutallab was training with terrorists in Yemen. He noted that the initial diplomatic cable from Abuja misspelled Abdulmutallab’s name.

As I said, that was not the most important problem leading to missed warnings. But it was one identified in the lessons learned period.

Yet it appears likely that one of the potential (if Tamarlan’s trip ends up showing any contact with extremists, which it hasn’t yet) lessons learned here will be one we purportedly learned 3 years ago: that our software needs to be better at using wildcards to identify close but not exact spellings.

We’re already seeing hints that facial recognition may not have served as the miracle solution it often gets sold as. It now appears we might not even have the databases running our watchlist system working as well as it needs to.

Update: Swapped out the Politico version of this report for the BoGlo one, which was more informative and changed the language to reflect the additional information.

 

Dzhokhar Tsarnaev: The Big Issue Is Not Miranda, It’s Presentment

Particularly given Lindsey Graham’s persistent tweeting yesterday that “the last thing we may want to do is read Boston suspect Miranda Rights,” there was a lot of discussion in the moments after Boston Marathon bombing suspect Dzhokhar Tsarnaev was captured last night about whether he would be read his rights.

At first, there were reports he would be. But then DOJ announced he would not be read Miranda immediately; they would invoke the public safety exception to question him.

“The suspect is en route to the hospital for immediate treatment,” the official tells TPM’s Sahil Kapur. “But we plan to invoke the public safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.”

As of about 40 minutes ago, he had still not been read his rights.

Now, thus far, I’m actually not that worked up about Miranda rights (though I may get there soon). As Orin Kerr explains, the public safety exception is a legally recognized law, and Miranda itself only limits what can be admitted as testimony against Dzhokhar in his trial (I’m betting he’ll plead guilty in any case). The government appears to have so much evidence against him in any case, any confession he makes will likely not be necessary to convict him.

Mind you, as Charlie Savage reported two years ago, the government has been institutionalizing longer delays before they give Miranda warnings, most notably with people they (or foreign proxies) interrogate overseas first, followed by a clean team Mirandized interrogation. And as the reference to “gain[ing] critical intelligence” above suggests, the Obama Administration is stretching the intent of pre-Miranda interrogations to include more substantive interrogation (update: Emily Bazelon also made this point).

But here in the US, the delays on Miranda warnings aren’t that long. The best–quite similar–example is the 2009 UndieBomber, who was interviewed for about 50 minutes under a public safety exception when he was captured. That entire interrogation was deemed admissible and in fact formed a significant part of the opening arguments in his trial (which didn’t get much further than opening arguments before he plead guilty). So the UndieBomber’s case is one reason the Administration is confident they could question Dzhokhar without Mirandizing him at first (though the length of time has gotten far longer than used with the UndieBomber).

There’s a precedent from the UndieBomber I find more troubling though. The judge in that case also allowed the use of UndieBomber’s statements from the hospital after he had been given a fair amount of sedation. While there was a dispute about how much he got and what kind of effect that might have had, conversations he had with a nurse were also used in the opening arguments of the trial. The two issues together — a suspect interviewed without a lawyer after he’s been given serious drugs, both of which will be apply to Dzhokhar, as well — is troubling on legal, humanitarian, and practical grounds. The High-Value Interrogation Group had already been brought in last night, which suggests he may well be asked questions while in precarious medical state.

But the big issue, in my opinion, is presentment, whether he is brought before a judge within 48 hours. In addition to stretching Miranda, the government has also been holding and interrogating suspects for periods — up to two weeks for American citizens and far longer for non-citizens — before they see a judge. Not only does this postpone the time when they will be given a lawyer whether they ask or not (because judges are going to assign one), but it gives the government an uninterrupted period of time to use soft coercion to get testimony and other kinds of cooperation.

In my opinion, two of the most troubling cases like this, both involving naturalized citizens accused of terrorism, are Faisal Shahzad and Manssor Arbabsiar.

Read more

Karzai Claims Final Handover of Parwan Prison Coming, Will Release “Innocents”

In a move that is guaranteed to provoke another tantrum from Lindsey Graham, Afghan President Hamid Karzai announced to the Afghan parliament today that final handover of the Detention Facility in Parwan to full Afghan control will take place on Saturday and that he plans to release prisoners that he says are innocent. Both AFP and Radio Free Europe have reported Karzai’s claims. From AFP:

“Our efforts for the transfer of the US-run prison, years-long efforts, have eventually paid off and next week the transfer will at last take place,” Karzai told the opening of a new parliamentary session in Kabul.

“This transfer of prison will take place on Saturday,” he added.

“We understand that there are some innocent people in these jails, I will order their release, no matter if there is criticism.”

Radio Free Europe also carried Karzai’s call for abuse to end in Afghan prisons:

Karzai on March 6 also called on his security forces to end incidents of torture and abuse of their countrymen.

“Today, I want to promise the people of Afghanistan that they are safe inside their houses,” Karzai said. “The law should take its course only in relations to the criminals. I call on their parliament to raise their voice and react strongly to cases of abuse, if they hear about it. As long as we do not end abuse and torture in our own institutions, we cannot stop others.”

An investigation by the government last month unveiled widespread abuse in prisons run by Afghan forces. The findings backed a recent United Nations investigation that Kabul initially rejected.

These words from Karzai on ending abuse in Afghan prisons are an encouraging development. Let’s hope the words are followed with action against those who have been involved in torture.

If it does occur, this handover will be an important next step in the US transferring authority to the Afghan government. However, handover of the prison has been a very long process in which the US has bargained in bad faith. Back in November, Karzai lashed out at US deception in this process.

Note also Karzai’s reference today to Afghans being “safe inside their houses”. That is clearly a reference to the hated US practice of night raids, which Karzai has also been looking to end. Of course, US night raids are the primary source of innocent Afghans being in US-run prisons, so it should be no coincidence that Karzai would speak of innocents being detained and night raids in the same speech.

It should also be noted that the US has a long history of secret prisons in Afghanistan and, as Marcy has noted, Obama still claims the right of indefinite detention without charges in Afghanistan, so don’t look for Saturday’s handover, if it occurs, to include those prisoners that Obama and Holder believe to be their most important, even if they can’t come up with a way to charge these prisoners with any actual crimes.

Karzai’s move to release prisoners he says are innocent could well provoke a showdown. As I reported last April, the prison agreement (and the night raid agreement, for that matter, too) although described as giving the Afghans full authority, in reality was a sham that left the US with full veto power over the release of prisoners. Will the US try to prevent Karzai releasing these prisoners? Or will the US simply re-arrest them and take them to a facility still under US control?

Hagel Hearing: Twilight of the Neocons Makes Senate Armed Services Committee Dysfunctional

[youtube]http://www.youtube.com/watch?v=XiXTyDnA2TI#![/youtube]

The disgusting bullying of former Senator Chuck Hagel (R-NE) during his hearing yesterday on his nomination to be Secretary of Defense is demonstrated clearly in the short clip above where Senator Lindsey Graham (R-Closet) asks Hagel to “Name one person, in your opinion, who’s been intimidated by the Israeli lobby.” Hagel said he couldn’t name one. A quick look at this word cloud from the hearing, though, or at this tweet from the Washington Post’s Rajiv Chandrasekaran: “At Hagel hearing, 136 mentions of Israel and 135 of Iran. Only 27 refs to Afghanistan. 2 for Al Qaida. 1 for Mali.” shows that Hagel should be at the top of the list of those intimidated by the Israeli lobby, which yesterday was embodied by the SASC.

Hagel did himself no favors when he stumbled badly on one of the few substantive and relevant topics brought up. On Iran’s nuclear program, even after being handed a note, he bungled the Obama administration’s position of prevention, stating first that the US favors containment. [His bungled statement of the Obama administration’s position should be considered separately from the logic of that position, where containment of an Iran with nuclear weapon capability is seen by some as a stabilizing factor against Israel’s nuclear capabilities, while prevention could well require a highly destabilizing war.]

Overall, however, the combative nature of Republican questioning of Hagel was just as hostile as the questioning last week of former Secretary of State Hillary Clinton over the Benghazi incident. Why would Republicans turn on one of their own with a vengeance equal to that shown to their long-term nemesis? Writing at Huffington Post, Jon Soltz provides an explanation with which I agree when he frames yesterday’s hearing as a referendum on neocon policy (emphasis in original):

“Tell me I was right on Iraq!”

Essentially, that’s what Sen. McCain said during most of his time in today’s confirmation hearing for Chuck Hagel. And that sums up why the die had been cast on the Hagel nomination, before we even got to these hearings today, which I am currently at. This vote, I believed (and now believe more than ever) is a referendum on neocon policy, not on Chuck Hagel.

Much of McCain’s bullying of Hagel was centered on McCain trying to get Hagel to admit that he had been wrong to oppose the Iraq surge. This clinging to the absurd notion that the Iraq surge was a success sums up the bitter attitude of the neocons as the world slowly tries to emerge from the global damage they have caused. And that this view that the surge was a success still gets an open and unopposed position at the Senate Armed Services Committee highlights the dangerous dysfunction of one of the most influential groups in Washington.

A functional SASC would have spent much time in discussion with Lt. Col. Daniel Davis, who provided a meticulous debunking of the myth that the Iraq surge was a success. His report, however, has been quietly ignored and allowed to fade from public view. Instead, this committee has essentially abandoned its oversight responsibilities in favor of pro-war jingoism. That Hagel refuses to engage in their jingoism is at the heart of neocon hatred of him.

Hagel would have done himself and the world a favor by turning the tables on the Committee during the hearing. A report (pdf) released Wednesday by the Special Inspector General for Afghanistan Reconstruction highlights a massive oversight failure by the Senate Armed Services Committee that lies at the juxtaposition of US defense policy in both Iran and Afghanistan. Despite long-standing sanctions against US purchases of Iranian goods, the Committee has allowed the Department of Defense to purchase fuel for use in Afghanistan that could well have come from Iran. Here is the conclusion of the report (emphasis added):

DOD’s lack of visibility—until recently—over the source of fuel purchased for the ANSF raises some concerns. DOD lacked certification procedures prior to November 2012 and had limited visibility over the import and delivery sub-contracts used by fuel vendors. As a result, DOD is unable to determine if any of the $1.1 billion in fuel purchased for the ANA between fiscal year 2007 and 2012 came from Iran, in violation of U.S. economic sanctions. Controls—recently added by CJTSCC to the BPAs for ANSF fuel—requiring vendor certification of fuel sources should improve visibility over fuel sources. To enhance that visibility, it is important that adequate measures are in place to test the validity of the certifications and ensure that subcontractors are abiding by the prohibitions regarding Iranian fuel. Recently reported steps to correct weaknesses in the fuel acquisition process may not help U.S. officials’ in verifying the sources of fuel purchased with U.S. funds for the ANSF. Given the Afghan government’s continued challenges in overseeing and expending direct assistance funds, it will become more difficult for DOD to account for the use of U.S. funds as it begins to transfer funds—in March 2013—directly to the Afghan government for the procurement and delivery of ANSF fuel. In light of capacity and import limitations of the Afghan government, the U.S. government may need to take steps to place safeguards on its direct assistance funding—over $1 billion alone for ANSF fuel from 2013-2018—to ensure that the Afghan government does not use the funds in violation of U.S. economic sanctions.

Imagine the sputtering that would have ensued if Hagel had managed to ask Graham or McCain why the committee had failed to enforce the sanctions against purchasing Iranian fuel by the Defense Department. While he was busy singing “Bomb, bomb, bomb, bomb, bomb Iran” on the campaign trail in 2008, McCain was failing in his responsibility to see that Iranian fuel wasn’t purchased by the Defense Department.

Lindsey Graham Must WANT the Terrorists to Have Kittens and Beard Dye

In the last week, we’ve had two stories about how terrorists at Gitmo have made themselves comfortable.

First there was Michelle Shephard’s investigation into whether Majid Khan has a cat.

A week-long investigation into Guantanamo’s feline affairs couldn’t determine the case for sure.

“No detainees are provided pets, and detainees are not authorized to keep animals, as they present a health and sanitation hazard,” wrote Navy Capt. Robert Durand, the director of Joint Task Force Guantanamo’s Public Affairs, in a lengthy response to my cat query.

“Wild animals often carry diseases and pests such as rabies, lice, mites and other infections.”

However: “Recreation yards are surrounded by security fences that keep detainees in and unauthorized people out, but small animals can and do squeeze through any gaps.”

Durand’s emailed response goes on to describe the island’s wildlife: “The Cuban Rock Iguana is a protected species, and banana rats and feral cats lack natural predators, so these populations thrive in the areas immediately adjacent to the various camps.”Yes, but does Khanhave a cat?

“We do not discuss the details of any individual detainee.”

And now there’s Carol Rosenberg’s story explaining that Khalid Sheikh Mohammed hennaed his beard with berries and juice.

Tuesday, Army Lt. Col. Todd Breasseale said in response to a five-month-old question that Mohammed “did craft his own natural means” inside the prison camps to concoct his self-styled beard dye.

“I don’t have his exact procedure,” Breasseale said, “but can confirm the use of at least berries and juice to create a kind of harmless dye.”

We paid Halliburton a lot of money to build this prison–and still shell out $800,000 a year to keep terrorists there. But apparently Halliburton couldn’t even keep feral cats out?

I’m guessing Jose Padilla doesn’t have a kitten in Florence SuperMax. And even when Umar Farouk Abdulmutallab was held at the local minimum security prison in Milan, he didn’t show up in court in a camo vest and dyed beard (he asked to wear a Yemeni dagger, mind you, and he looked too young to grow one, mind you).

So I’m beginning to think that Lindsey Graham and all the others that insist terrorists must be held in Gitmo rather in the real prisons in the US want the terrorists to have kittens.

Upate: h/t to joanneleon for alerting me that, by my spelling, I tried to kill KSM’s beard rather than color it.

Latif’s Death: A Blow to the Head of Our System of Justice

I’d like to take issue with Ben Wittes’ post on the sadness of Adnan Farhan abd al Latif’s death. I certainly agree with Wittes that Latif’s death is terribly sad. But I object to Wittes’ take on three related grounds. Wittes,

  • Provides a problematic depiction of the justification for Latif’s detention
  • Misstates the importance of Latif’s clearance for release
  • Assigns responsibility for Latif’s continued detention to the wrong people

Wittes tries hard to downplay how much Latif’s death in custody damns Gitmo. But he does so by obscuring a number of key facts all while accusing Gitmo foes of building up “myths.”

A problematic depiction of the justification for Latif’s detention 

Before he talks about how sad this is, Wittes tries to refute the “myths” Gitmo opponents have spread. First, he argues, we should not be arguing Latif was innocent.

Guantanamo’s foes are building up a lot of myths about the Latif case—many of which I don’t buy at all. While I have criticized the D.C. Circuit’s opinion in the case, it does not follow from the decision’s flaws that Latif was an innocent man wrongly locked up for more than a decade. Indeed, as I argued inthis post, it is possible both that the district court misread the evidence as an original matter and that the D.C. Circuit overstepped itself in reversing that decision. The evidence in the case—at least what we can see of it—does not suggest to me that Latif had no meaningful connection to enemy forces. [my emphasis]

After twice using the squirreliest of language, Wittes finally settles on a lukewarm endorsement of the argument that Latif had some “meaningful connection” to the enemy. Curiously, though, he exhibits no such hesitation when he describes Latif this way:

Latif—a guy whose mental state was fragile, who had suffered a head injury, and who seems to have had a long history of self-injury and suicide attempts. [my emphasis]

That’s curious because whether or not Latif continued to suffer from his 1994 head injury was a central issue in whether or not Latif was credible and therefore whether he should be released. Moreover, it is one area where–as I explained in this post–Janice Rogers Brown fixed the deeply flawed argument the government made, thereby inventing a new (equally problematic, IMO) argument the government had not even plead to uphold the presumption of regularity that has probably closed off habeas for just about all other Gitmo detainees.

As you’ll recall, Henry Kennedy found Latif’s argument he had traveled to Afghanistan for medical treatment for his head injury credible because DOD’s own intake form said he had medical records with him when they took custody of him in Kandahar.

Furthermore, there are indications in the record that when Latif was seized traveling from Afghanistan to Pakistan, he was in possession of medical records. JE 46 at 1 (noting that Latif was seized in a “[b]order [t]own in [Pakistan]” with “medical papers”); JE 66 (unidentified government document compiling information about Latif) at 2 (stating that “[Latif] had medical papers but no passport or weapon” when he “surrendered himself to [Pakistani] authorities”).12

David Tatel, too, pointed to that in his dissent: “the most plausible reason for why Latif would have had medical papers in his possession when first seized is that his trip in fact had a medical purpose.”

Yet the government argued that Latif offered no corroboration for his story.

The court improperly gave no adverse weight to the conclusory nature of Latifs declaration, and the lack of corroboration for his account of his trip to Afghanistan, both factors which should have weighed heavily against his credibility.

[snip]

Latif also provided no corroboration for his account of his trip to Afghanistan. He submitted no evidence from a family member, from Ibrahim, or from anyone to corroborate his claim that he was traveling to Pakistan in 2001 to seek medical treatment.

That’s a laughable claim. Latif submitted one of the government’s own documents as corroboration for his story. The government, however–in a brief arguing that all government documents should be entitled to the presumption of regularity–dismissed that corroborating evidence by implying that government document didn’t mean what it said–which is that Latif had medical papers with him when captured.

Respondents argue that these indications are evidence only that Latif said he had medical records with him at the time he was seized rather than that he in fact had them.

The claim is all the more ridiculous given that, unlike the CIA interrogation report the government argued should be entitled to the presumption of regularity, there’s a clear basis for the presumption of regularity of Latif’s intake form: the Army Field Manual. It includes instructions that intake personnel examine documents taken into custody with detainees. They don’t just take detainees’ words for it, they look at the documents.

I’m not suggesting that the government’s claim–that the screener just wrote down whatever Latif said–is impossible; I think it’s very possible. But they can only make that argument if they assume the intake screener deviated from the AFM, and therefore a document created under far more regulated conditions than the CIA report, and one created in US–not Pakistani–custody, should not be entitled to the presumption of regularity. Read more