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In Constitutional Showdown, Pakistan Supreme Court Cites Quaint Olmstead v. US on Rule of Law

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Pakistan's Supreme Court today cited Louis Brandeis' eloquent dissent in Olmstead v. United States

The precarious hold that Pakistan’s civilian government has on power took another severe blow today, as the Supreme Court handed down a decision (pdf) which threatens to find Prime Minister Yousuf Reza Gilani unfit to hold office. At issue is the failure of Pakistan’s executive branch to implement a number of corruption probes ordered by the Supreme Court when it overturned the 2007 National Reconciliation Ordinance in 2009. The NRO had provided amnesty to a number of political figures and parties in paving the way for a US-brokered planned transition from a Musharraf government to a likely Bhutto government. President Asif Ali Zardari’s government has steadfastly refused to implement the probes, citing immunity. Ironically, the Supreme Court cited the 1928 case Olmstead v. United States, in which the US Supreme Court upheld the use of illegal wiretaps in the prosecution of a bootlegger. The passage cited by Pakistan’s Supreme Court is from Justice Brandeis’ dissent and is an elegant call to observe the rule of law. Although Olmstead v. United States eventually was overturned, it is particularly ironic that Pakistan’s Supreme Court would cite this case in responding to executive branch claims of immunity at a time when the US is once again litigating the extent of executive branch and corporate immunity in a new era of illegal government wiretaps.

In documenting the crisis, Dawn quotes Supreme Court Justice Asif Saeed Khosa:

Tuesday, Supreme Court’s Justice Asif Saeed Khosa remarked that despite clear court orders, the government and the NAB [National Accountability Board] were not serious about implementing court orders, DawnNews reported.

Justice Khosa said that the apex court was giving a last chance to the government to implement its verdict on the National Reconciliation Ordinance by Jan 16.

He said in case of non-implementation, the court would be forced to take certain steps which would not be “pleasant”.

Khosa goes on to complain that the government has had over two years to respond to the overturning of the NRO, but refuses to act:

He moreover referred to President Asif Ali Zardari and said that the president had, “in an interview, refused to accept the court’s orders”.

The prime minister and the law minister also publicly refused to accept the apex court’s orders, Justice Khosa said, adding that the president and the prime minister preferred loyalty to party over loyalty to state.

It is in response to this failure to act that the written decision cites Justice Brandeis’ dissent in Olmstead v. United States:

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Read more →

While NY Times Agitates for Resumption of Drone Strikes, Peace Talks Set to Add Afghanistan, Haqqani Network

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Over the weekend, the New York Times published a piece whose headline seemed to cry out that drone strikes in Pakistan need to resume: “Lull in Strikes by U.S. Drones Aids Militants in Pakistan”. In reading the article, it is difficult to find strong evidence for the claim that the lull in strikes has helped militant groups. While the article does note a slight uptick in some forms of violence, there have been no major attacks on US forces in Afghanistan as one would expect if the insurgent groups truly had gained significant additional strength and operational capability. An alternative reading of the lull in strikes, however, is that it has provided an important opening for negotiations aimed at ending hostilities in Afghanistan. Two very important developments on that front are now in place, as Afghanistan is sending a delegation to Qatar to visit the newly established Taliban office there and the Express Tribune reports that the US is ready for the Haqqani network to take part in the peace negotiations. In the meantime, the Express Tribune also reports that negotiations between Pakistan and the US have nearly reached the point that drone strikes will resume. If the strikes resume, will progress in the peace talks be slowed or halted?

The poor footing on which the Times bases its claim that insurgents have been aided by the suspension of drone attacks is given away in the opening sentence of the article:

A nearly two-month lull in American drone strikes in Pakistan has helped embolden Al Qaeda and several Pakistani militant factions to regroup, increase attacks against Pakistani security forces and threaten intensified strikes against allied forces in Afghanistan, American and Pakistani officials say.

Attacks on the US have not increased, we only have American and Pakistani officials saying that “intensified” strikes on NATO forces are possible or threatened. As for the increase in attacks on Pakistani security forces, we have this:

Other militant groups continue attacking Pakistani forces. Just last week, Taliban insurgents killed 15 security soldiers who had been kidnapped in retaliation for the death of a militant commander.

The spike in violence in the tribal areas — up nearly 10 percent in 2011 from the previous year, according to a new independent report — comes amid reports of negotiations between Pakistan’s government and some local Taliban factions, although the military denies that such talks are taking place.

So that’s it when it comes to documentation of the strengthening of militant groups: a 10% increase for the year in violence in tribal areas, when the drone “pause” has only been for the last two months or so, with earlier shorter pauses over the Raymond Davis incident and the killing of Osama bin Laden.

The article also notes that the drones have not stopped flying, it’s just that they are not launching missiles. Perhaps US intelligence personnel will take this opportunity to improve the quality of their intelligence so that fewer innocent civilians will be at risk when missile strikes resume.

Meanwhile, we learn that the newly established office for the Taliban in Qatar is about to be visited by a delegation from Afghanistan’s High Peace Council: Read more →

As US-Iran Threat Exchange Continues, Pakistan Detains Three Iranian Border Guards

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[youtube]http://www.youtube.com/watch?v=yaqllTmpcKc[/youtube]

Iran and the US continued to exchange threats over the long holiday weekend. On Saturday night, Barack Obama signed the NDAA, which put into place the ability to enact strong sanctions on banking institutions involved in the sale of Iranian oil. Substantial flexibility is built into the legislation to allow the US to exempt various players in the oil market, so it is still quite uncertain how the sanctions will be implemented. As the video here shows, Iran also test-fired two types of missiles over the weekend prior to the ending of the ten days of naval war games. However, the threats have not ceased, as Iran has now issued a vague warning to the US not to bring the aircraft carrier John C. Stennis, which exited the Persian Gulf on Tuesday, back into the Gulf.

With all of these events taking place, it would be easy to overlook a strange incident on the Iran-Pakistan border on Sunday. Both Iran and Pakistan now say that Pakistan has detained three Iranian border guards who crossed into Pakistan. The guards shot two men who were in a car they were chasing, and one of the men died. The shooting victims are Pakistani nationals.

One of the most detailed accounts appears in the Washington Post via AP:

Pakistani authorities have yet to decide what to do with three Iranian border guards who they say crossed into southwestern Pakistan while chasing after smugglers and killed one them, a government official said Monday.

The incident occurred Sunday in the Mazah Sar area of Baluchistan province, a desolate, unpopulated region where the border is not clearly marked.

Aalam Farez, a senior government official in Washuk district, where Mazah Sar is located, said the Iranians admitted to inadvertently crossing into Pakistan. But, he said, they claimed the two people they shot — one of whom died — were bystanders and that the people they were chasing escaped.

After the shooting, Pakistani border personnel chased the Iranians back across the border and detained them, Pakistani officials have said. They also seized the surviving gunshot victim and determined both of those who had been shot were petty smugglers.

The Express Tribune (via AFP) adds significant background on the region where this event took place:

The Iranians reached Mazan Sar Mashkail, in Washuk district, three kilometres (1.8miles) inside Pakistan where they opened fire on a vehicle they were chasing, according to officials in Balochistan.

“All three personnel of Iranian border security force were taken into custody for their penetration inside Pakistan and killing a Pakistani national on our soil”, Saeed Ahmad Jamali, Deputy Commissioner of Washuk district told AFP.

/snip/

Mazan Sar Mashkail is around 600 kilometres southwest of Quetta, the main town of insurgency hit Baluchistan province, which borders Iran’s Sistan-Baluchestan province.

Iranian embassy officials in Islamabad were unavailable for comment late Sunday but Iran in the past has blamed a Sunni extremist group, called Jundallah, for launching attacks inside Pakistan [sic] from Sistan-Balochistan.

Jundallah says it is fighting Tehran’s Shiite rule to secure rights for Sunni Balochis who form a significant population in Sistan-Balochistan, which borders both Afghanistan and Pakistan. Read more →

More Collateral Damage From Mad Rush to Rely on Drones

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A drone crashed in Afghanistan earlier this week. (Wikimedia Commons photo via Bakhtar News)

Marcy already covered the very important Greg Miller Washington Post article on drones and the way the Obama administration is growing ever more reliant on their use. I would like to focus on more of the collateral damage from drone use as described in two Los Angeles Times articles from this week.  Today’s article discusses the growing reliance on civilian contractors in the use of drones.  Earlier in the week, we learned about the “death squads” roaming the tribal areas of Pakistan doling out revenge on those thought to have sold information used by the US in developing target information. Taken together, these articles demonstrate how the excessive reliance on drones is outstripping the military and CIA support infrastructure. This matter will be only be made worse by the fact that the number of US personnel on the ground within Pakistan to develop intelligence has been cut to one fourth the previous level.

Today’s LA Times article opens with a description of the difficulties that ensue when civilians take part in analysis of video feeds from drones that hit civilian targets:

After a U.S. airstrike mistakenly killed at least 15 Afghans in 2010, the Army officer investigating the accident was surprised to discover that an American civilian had played a central role: analyzing video feeds from a Predator drone keeping watch from above.

The contractor had overseen other analysts at Air Force Special Operations Command at Hurlburt Field in Florida as the drone tracked suspected insurgents near a small unit of U.S. soldiers in rugged hills of central Afghanistan. Based partly on her analysis, an Army captain ordered an airstrike on a convoy that turned out to be carrying innocent men, women and children.

We learn in the article that maintaining drones in the air requires a very large contingent of ground support, with Predators requiring over 150 ground crew for a 24 hour flight and twice that amount for the larger drones. We are already short on these ground crews and yet the number of these medium and large drones is expected to go from the current 230 to 960 within ten years. But don’t worry, only 44 hours of training are required to certify a pilot!

In relying so heavily on civilian contractors, the US is flirting with breaking the international laws of war.  Also from today’s article: Read more →

With US Attention on Memogate Fallout and Taliban, Khan’s Tsunami Gathers Strength

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[youtube]http://www.youtube.com/watch?v=iidC31wuEpE[/youtube]

As reported late yesterday by the New York Times, the US is finally acknowledging that it faces a diminished role in Pakistan. However, restoring even a diminished level of relations with Pakistan after the November 26 airstrike that killed 24 Pakistani troops is complicated by the fact that “civilian and military leaders are clashing over purported coup plots”. At the same time, the US continues its efforts at negotiating with the Taliban on a peace agreement for Afghanistan once the US leaves, and has even arranged for the Taliban to open an office in Qatar. These diplomatic moves are all focused on the scheduled 2014 withdrawal of combat troops from Afghanistan, but standing between now and then are the scheduled Pakistan elections in 2013.  Former cricket star Imran Khan appears to be gaining a huge political following and so it seems likely that whether it is the long-rumored military coup or an electoral loss, the Zardari government appears to have lame duck status while participating in these critical discussions.

The Times describes the reduced US role with Pakistan:

With the United States facing the reality that its broad security partnership with Pakistan is over, American officials are seeking to salvage a more limited counterterrorism alliance that they acknowledge will complicate their ability to launch attacks against extremists and move supplies into Afghanistan.

The United States will be forced to restrict drone strikes, limit the number of its spies and soldiers on the ground and spend more to transport supplies through Pakistan to allied troops in Afghanistan, American and Pakistani officials said. United States aid to Pakistan will also be reduced sharply, they said.

It appears that the reduced number of “spies and soldiers” is down to about 100 from a high of 400. It is also very interesting to note that there have been no drone strikes in Pakistan since November 16, a full ten days before the November 26 border post attack. Today marks the one month mark for the blocking of supply lines through Pakistan in response to the border post attack.

While trying to sort out whether the Zardari government is stable enough to negotiate with over US involvement, the US is continuing its frequently ill-fated attempts to negotiate with the Taliban.   Read more →

Zardari Returns to Pakistan; Liaison Officers Return to Border Centers; Stage Set for Haqqani as Double Scapegoat

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Two major steps toward stability in Pakistan and restoration of relations with the United States have taken place, as President Asif Ali Zardari returned to Pakistan yesterday while liaison officers have now returned to the border coordination posts from which they were withdrawn as part of the response to the November 26 NATO attack that killed 24 Pakistani troops. NATO supply routes remain blocked, however.  In a very interesting move, former Pakistani Ambassador to the United States Husain Haqqani has been forced to submit a statement and to appear before the Abbotabad Commission. The Commission is seeking information on visas issued by the Washington embassy during his tenure as Ambassador.

Despite the earlier statements that Zardari would take two weeks of rest before resuming his duties, Zardari yesterday returned to Pakistan from Dubai:

Pakistani President Asif Ali Zardari returned home from medical treatment in Dubai to face rising tension between his civilian government and the military over a memo accusing the country’s generals of plotting a coup.

It’s not clear when the deeply unpopular leader who has uneasy ties with the army will return to work. He flew into the southern city of Karachi after treatment for a heart condition.

It would appear that Zardari immediately took up at least ceremonial duties:

State television showed him at his residence, looking relaxed as he met senior provincial officials.

Multiple media reports had addressed the fact that Zardari and Army Chief Ashfaq Kayani had talked on the phone prior to Zardari’s return. An article today by Dawn provides more details on that conversation: Read more →

Zardari Released From Hospital, Remains in Dubai; Memogate Reply Delayed

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Pakistan’s President Asif Ali Zardari was released from the hospital in Dubai on Wednesday, but has not returned to Pakistan. His reply to Pakistan’s Supreme Court investigation into the Memogate scandal had been expected today, but could be submitted tomorrow since the deadline has been extended.

Reuters gives us details on Zardari’s release from the hospital:

“President Zardari has been discharged from the hospital and he has moved to his residence in Dubai,” presidential spokesman Farhatullah Babar said.

The article also has more information on the ongoing question of whether Zardari suffered a stroke:

Zardari’s office had released a statement earlier on Wednesday from his doctor saying the president had been admitted to hospital with numbness and twitching in his left arm and had lost consciousness for a few seconds.

“All investigations are within normal range and he was kept for observation for a few more days,” Khaldoun Taha said, adding that Zardari would now rest at home and continue with his regular heart medications.

Zardari likely suffered a transient ischemic attack, senior sources in Zardari’s party said last week, an ailment that can produce stroke-like symptoms but no lasting damage to the brain.

Admitting to a TIA appears to thread the needle nicely in providing a few symptoms consistent with the widespread rumors of a stroke while avoiding any long-term stroke damage which would be obvious should Zardari return to public life. With Zardari now out of the hospital, his need for “rest” begins to look more suspicious, especially with the rest taking place in Dubai. I’m having a hard time seeing how Zardari can take two weeks of rest outside the country at a time when such crucial questions are facing Pakistan’s government and then come back and resume his duties.

One immediate crisis facing Zardari is the investigation into Memogate being carried out by the Supreme Court. Read more →

Gilani to BBC: Zardari to Remain in Dubai Hospital Two More Weeks

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[youtube]http://www.youtube.com/watch?v=yxfZ2706b0U[/youtube]

Pakistan’s Prime Minister Yousef Raza Gilani granted an extended interview to BBC on Sunday.

Although many important topics were covered in the interview, the subject of the health of Pakistan’s President Asif Ali Zaradari was perhaps the most crucial.  The health part of the interview starts at around 1:50 of the video.  I find it interesting that Gilani states that Zardari has now been moved from the ICU to “his room” at the hospital.  If I recall correctly, early reports had stated that Zardari was in the ICU in order to cut down on the number of visitors. Gilani’s reference to this move to a regular room appears to be more in the context of Zardari’s recovery, so now there is reason to believe that Zardari’s health when he arrived in Dubai was poor enough to warrant an extended stay in the ICU.

Gilani rejected outright the rumors that Zardari has suffered a stroke.  Those rumors have persisted on Twitter for the entire time that Zardari has been hospitalized.

Most importantly, though, is Gilani’s statement that Zardari now will “take rest” and that the rest will be for “about two weeks”.  Recall that when it was first revealed that Zardari was hospitalized in Dubai, the story was that he had suffered a mild heart attack and that he had undergone angioplasty.  In my post about that news, I had this to say:

It should be kept in mind that if Zardari did suffer a mild heart attack and then was treated with angioplasty, patients in this situation often are discharged from the hospital the next day and are usually free to resume normal activities fairly quickly. Should the hospitalization continue into next week, then either the status of Zardari’s health or the status of the political situation should be assumed to be different from what has been reported.

If we were to work only from the assumption that this was a mild heart attack followed by angioplasty, then Zardari remaining in Dubai for two more weeks would seem to point pretty strongly to the likelihood that Zardari has deemed it either not safe or not prudent for his return to Pakistan.  However, that interpretation is complicated by Gilani linking Zardari’s shift out of the ICU as part of his recovery.  A stay of four or five days in the ICU is not consistent with the initial health status that was reported.  As a result, it appears that we are stuck in a holding pattern where we cannot fully ascribe Zardari’s extended hospital stay as wholly health-dependent or wholly politics-dependent. Read more →

Zardari in Dubai Hospital; Coup Rumors Quelled for Now

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Pakistan's President Asif Ali Zardari (Wikimedia Commons)

Late Tuesday afternoon, Twitter was awash in a flurry of rumors on the status of Pakistan’s President Asif Ali Zardari. One tweet that was repeated over and over stated that Zardari had been sedated, flown to Abu Dhabi, and would leave as soon as possible for London due to a medical condition. Then Josh Rogin put up a story at Foreign Policy stating that Zardari was in Dubai after complaining of chest pains and that there was a possibility that he would resign before returning to Pakistan. After first stating that Zardari was in Dubai only for medical tests relating to a known previous heart condition, the Pakistani government later stated that Zardari had suffered a minor heart attack and was in Dubai for treatment, which many have described as angioplasty.  Zardari is expected to return to Pakistan soon.

The tweet that set things off appears to have come from Najam Sethi, whose twitter profile lists him as “Editor, The Friday Times, & Group Advisor GEO TV; Senior Fellow New America Foundation, Washington DC; Eric Lane Fellow Clare College Cambridge University UK”. Although the tweet doesn’t seem to be in his timeline now, retweets put it as: “Prez Zardari sedated and taken to hosp in AbuDhabi. He will go to London asap. Faranaz Ispahani with him but not HH!” Tweets that are still in his timeline state that he meant to say Dubai, but he had just returned from Abu Dhabi and typed that instead. There is an additional tweet stating that he still expects Zardari to go to London.

Faranaz Isphahani is Zardari’s spokeswoman, “HH” is presumed to refer to former US Ambassador Husain Haqqani, who resigned in the memo scandal and has been placed on the Exit Control List, preventing his exit from Pakistan.

An even higher level of Twitter activity ensued after Josh Rogin Tweeted a link to his story at Foreign Policy.  The key aspect to Rogin’s story was information received from “a former US government official”:

A former U.S. government official told The Cable today that when President Barack Obama spoke with Zardari over the weekend regarding NATO’s killing of the 24 Pakistani soldiers, Zardari was “incoherent.” The Pakistani president had been feeling increased pressure over the Memogate scandal. “The noose was getting tighter — it was only a matter of time,” the former official said, expressing the growing expectation inside the U.S. government that Zardari may be on the way out.

The former U.S. official said that parts of the U.S. government were informed that Zardari had a “minor heart attack” on Monday night and flew to Dubai via air ambulance today. He may have angioplasty on Wednesday and may also resign on account of “ill health.”

Rogin then went on to quote another source on a potential coup: Read more →

Pakistan Withdraws Cooperation From Key Border Posts, McCain and Graham Stir Pot

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Pointy heads John ("Get Off My Lawn!") McCain and Lindsey ("Holy Hell!") Graham grab some microphone time in Kabul on July 5, 2010. (ISAFMedia photo)

Although it is now a week and a half since the November 26 NATO attack on two border posts that killed 24 Pakistani soldiers, it appears that the barrage of official statements and official actions is not yet slowing. Despite a Sunday phone call from President Obama to President Zardari that was meant to emphasize cooperation, Pakistan withdrew its representatives today from two of three key border posts that coordinate communications between troops on both sides of the border region. And, as if things weren’t already bad enough with Pakistan boycotting the Bonn conference on the future of Afghanistan, Senators John McCain and Lindsey Graham decided that they should issue their own set of demands for Pakistan.

On Sunday, President Obama made a phone call to Pakistan’s President Zardari.  Here is the statement on the call released by the White House:

Earlier today the President placed a phone call to Pakistani President Asif Ali Zardari to personally express his condolences on the tragic loss of twenty-four Pakistani soldiers this past week along the border of Afghanistan and Pakistan.  The President made clear that this regrettable incident was not a deliberate attack on Pakistan and reiterated the United States’ strong commitment to a full investigation.  The two Presidents reaffirmed their commitment to the U.S.-Pakistan bilateral relationship, which is critical to the security of both nations, and they agreed to stay in close touch.

Even though this statement ends by claiming both presidents “reaffirmed their commitment to the US-Pakistani bilateral relationship”, Pakistan followed that reaffirmation up by withdrawing its cooperation from key border posts that provide coordination and communication:

Pakistan is pulling out troops from two of the three border coordination units at the Pak-Afghan border set-up for communication between Nato and Pakistani troops in retaliation to the Nato November 26 attack, said a report by the The Associated Press. Read more →