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Time to End the War in Iraq

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The War Powers Resolution 6-Month Report has gotten unusual attention because it officially announces we’re at war in Yemen and Somalia (though I suspect the Administration has only finally officially announced we’re at war against al Qaeda in Yemen precisely because we’re not, just).

While everyone’s looking, let’s look more closely at this bit:

MILITARY OPERATIONS IN IRAQ

The United States completed its responsible withdrawal of U.S. forces from Iraq in December 2011, in accordance with the 2008 Agreement Between the United States of America and the Republic of Iraq on the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq.

Jeebus pete. Can’t we avoid propaganda like “responsible withdrawal” in even these bureaucratic communications? (Or “working closely with the Yemeni government to operationally dismantle … AQAP”?)

Nevertheless, even dripping with propagandistic language as it is, this passage seems to be official notice to Congress that the war in Iraq is over, done, kaput.

So now can we repeal the Iraq AUMF?

As you’ll recall, over six months ago, Rand Paul proposed an amendment to repeal the still-active Iraq AUMF. It failed miserably, 30-67. During the debate on it, a bunch of reasonable Democrats (and all the usual suspect unreasonable ones) stood up and blathered on about why we need an AUMF for a war that is over. If you asked now they’d probably point to the bad crowd Iraq is hanging out with in OPEC circles.

Iran and Iraq are forming a strengthening alliance inside Opec, raising concerns among moderate Arab Gulf producers like Saudi Arabia and increasing the potential for discord in the oil producers’ group.

[snip]

A particular bone of contention was a proposal by Venezuela – backed by other Opec hardliners like Iran, Iraq and Algeria – that the group should protest against the EU sanctions against Tehran over its nuclear programme. The move was rebuffed by Saudi Arabia and other moderates including Nigeria, Libya and Kuwait, who argued that such protests were the preserve of foreign ministers, not oil ministers.

(Yes, you read that right: Saudi Arabia is considered a “moderate” state in this context.)

Or they’d point to the series of bombings al Qaeda in Iraq has claimed credit for recently.

But the real reason they won’t repeal an AUMF for a war that has officially ended is because that AUMF expands the authority to fight terrorism beyond simply al Qaeda to whatever “terrorist” groups the President claims is in armed conflict with and poses a threat to the US. Indeed, in Mark Udall’s effort to “fix” the NDAA, he even suggested the Iraq War AUMF pertained to “covered persons” who could be detained indefinitely under that law.

I know it sounds funny, having to insist on ending a war the Administration just informed Congress is over. But it’s not over.

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A Tale of Two Senators: Feinstein Calls for Apology to Pakistan, Paul Attempts to Defund

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You know that things are truly screwed up regarding US policy on Pakistan when the “best of Senators” is Dianne Feinstein, but it’s hardly surprising that Rand Paul would step up in the Senate to carry Dana Rohrabacher’s sentiments forward and attempt to cut all funding from Pakistan until Dr. Shakeel Afridi is released.

First, the good news from Feinstein. While many in Washington were getting overheated in response to a cost estimate finally being attached to the closure of NATO supply routes through Pakistan ($100 million a month), Dianne Feinstein made the courageous observation that the US could likely move ahead through the current diplomatic standoff with Pakistan by issuing a simple apology over the Salala raid:

A senior US lawmaker said on Wednesday that apologising to Pakistan over the Salala incident would improve Washington’s relations with a key ally.

“National security of the US will be better served with a positive relationship with Pakistan,” Senator Dianne Feinstein told a Senate hearing on budget priorities for 2013.

The Senator, who chairs the Senate Intelligence Committee, observed that both sides made mistakes in handling the Nov 26 incident, which caused the death of 24 Pakistani soldiers in a US air raid.

/snip/

Senator Feinstein noted that the dispute over the supply lines could be solved “with some civilian acceptance of the mistakes” the US had made.

Such an acceptance could also lead to the reopening of Nato supply lines, she said, adding that “it would do well to apologise” for the mistakes made.

Pakistan’s ambassador to the US was very quick to respond to this overture:

“We appreciate Senator Feinstein for showing the way forward in normalising ties in a relationship that is important to both sides and critical for stabilising the region,” said Pakistan’s Ambassador Sherry Rehman while welcoming the gesture.

Rehman’s time in Washington this week has been difficult, as seen by Rand Paul’s attempt at “diplomacy”:

US Senator Paul Rand was blocked from attaching an amendment to the farm bill that would withhold US aid to Pakistan.

The amendment would have defunded US aid to Pakistan until the country frees an imprisoned doctor, who worked for CIA in hunt for al Qaeda chief Osama bin Laden.

Rehman was happy for the move to block Paul’s action, but it appears that her task is doomed: Read more →

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Day of Surprises in Afridi Case: Conviction Not Related to CIA Help; Ignatius Chastises CIA

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There are many developments today surrounding Pakistan’s sentencing of Dr. Shakeel Afridi to 33 years in prison, including two that are quite unexpected. According to documents released today to multiple news agencies, it turns out that Afridi’s conviction is not on the treason charges relating to his work with the CIA in finding Osama bin Laden that many thought were the basis of the charges against him. Instead, the documents indicate that Afridi was convicted for aiding the outlawed group Lashkar-e-Islam, which is said to be in open conflict with Pakistan. Equally unexpected is today’s column by CIA spokesman reporter columnist David Ignatius in the Washington Post where he chastises the CIA for using Afridi in a vaccination ruse, citing the resultant danger to public health as vaccination programs come more generally under suspicion in the areas where they are needed most urgently.

Reuters gives us the basics on the documents released today by the court:

A Pakistani doctor who helped the United States find Osama bin Laden was imprisoned for aiding militants and not for links to the CIA, as Pakistani officials had said, according to a court document released on Wednesday.

Last week, a court in the Khyber tribal region near the Afghan border sentenced Shakil Afridi to 33 years in jail. Pakistani officials told Western and domestic media the decision was based on treason charges for aiding the CIA in its hunt for the al Qaeda chief.

But in the latest twist in the case, the judgment document made available to the media on Wednesday, states Afridi was jailed because of his close ties to the banned militant group Lashkar-e-Islam, which amount to waging war against the state.

Dawn fills in more details:

The order said intelligence reports had indicated that the accused had close links with the defunct LI and “his love for Mangal Bagh, Amir of Lashkar-i-Islam, and his association with him was an open secret”.

Referring to the report submitted by the JIT, it said the accused had paid Rs2 million to LI when he was serving at the Tehsil Headquarters Hospital Dogra, Bara, Khyber tribal region.

The court also accused Mr Afridi of providing medical assistance to militant commanders like Said Noor Malikdinkhel, Hazrat Sepah, Wahid Shaloberkhel and others at the hospital which he headed.

It also referred to statements by some people that militant commanders used to visit the hospital and hold private meetings with the accused. “These meetings were usually of longer duration and most often those meetings were followed by attacks by militants on security forces’ checkposts and other places at night,” the order read.

It said LI’s design to wage war against the state of Pakistan was a reality known to all and that those attacks were planned in the office of the accused. Being a public servant, the involvement of the accused in subversive activities and his role in facilitating the waging of war and attacks on security forces made him liable to be proceeded against, it added.

There is one more point that stands out in the Dawn article: Read more →

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Senate Passes Defense Authorization

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The final vote was 86-13. No votes were Lee, Paul, DeMint, Risch, Crapo, and Coburn (the last three not on civil liberties grounds), and Cardin, Wyden, Sanders, Durbin, Franken, Harkin, and Merkley.

I’m sure Obama will sign this in time for us all to be indefinitely detained this weekend.

Update: Senator Franken sent out a statement explaining his no vote. It ends, “Today is the anniversary of the ratification of the Bill of Rights, and this wasn’t the way to mark its birthday.”

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Why the Iraq AUMF Still Matters

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The big headline that came out of yesterday’s American Bar Association National Security panels is that DOD General Counsel Jeh Johnson and CIA General Counsel Stephen Preston warned that US citizens could be targeted as military targets if the Executive Branch deemed them to be enemies.

U.S. citizens are legitimate military targets when they take up arms with al-Qaida, top national security lawyers in the Obama administration said Thursday.

[snip]

Johnson said only the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy.

We knew that. Still, it’s useful to have the Constitutional Lawyer President’s top aides reconfirm that’s how they function.

But I want to point to a few other data points from yesterday’s panels (thanks to Daphne Eviatar for her great live-tweeting).

First, Johnson also said (in the context of discussions on cyberspace, I think),

Jeh Johnson: interrupting the enemy’s ability to communicate is a traditionally military activity.

Sure, it is not news that the government (or its British allies) have hacked terrorist “communications,” as when they replaced the AQAP propaganda website, “Insight,” with a cupcake recipe (never mind whether it’s effective to delay the publication of something like this for just one week).

But note what formula Johnson is using: they’ve justified blocking speech by calling it the communication of the enemy. And then apparently using Jack Goldsmith’s formulation, they have said the AUMF gives them war powers that trump existing domestic law, interrupting enemy communications is a traditional war power, and therefore the government can block the communications of anyone under one of our active AUMFs.

Johnson also scoffed at the distinction between the battlefield and the non-battlefield.

Jeh Johnson: the limits of “battlefield v. Non battlefield is a distinction that is growing stale.” But then, it’s not a global war. ?

Again, this kind of argument gets used in OLC opinions to authorize the government targeting “enemies” in our own country. On the question of “interrupting enemy communication,” for example, it would seem to rationalize shutting down US based servers.

Then, later in the day Marty Lederman (who of course has written OLC opinions broadly interpreting AUMF authorities based on the earlier Jack Goldsmith ones) acknowledged that Americans aren’t even allowed to know everyone the US considers an enemy.

Lederman: b/c of classification, “we’re in armed conflicts with some groups the American public doesn’t know we’re in armed conflict with.”

Now, as I’ve noted, one of the innovations with the Defense Authorization passed yesterday is a requirement that the Executive Branch actually brief Congress on who we’re at war with, which I take to suggest that Congress doesn’t yet necessarily know everyone who we’re in “armed conflict” with.

Which brings us to how Jack Goldsmith defined the “terrorists” whom the government could wiretap without a warrant.

the authority to intercept the content of international communications “for which, based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are reasonable grounds to believe … [that] a party to such communication is a group engaged in international terrorism, or activities in preparation therefor, or any agent of such a group,” as long as that group is al Qaeda, an affiliate of al Qaeda or another international terrorist group that the President has determined both (a) is in armed conflict with the United States and (b) poses a threat of hostile actions within the United States;

It’s possible the definition of our enemy has expanded still further since the time Goldsmith wrote this in 2004. Note Mark Udall’s ominous invocation of “Any other statutory or constitutional authority for use of military force” that the Administration might use to authorize detaining someone. But we know that, at a minimum, the Executive Branch used the invocations of terrorists in the Iraq AUMF–which are much more generalized than the already vague definition of terrorist in the 9/11 AUMF–to say the President could use war powers against people he calls terrorists who have nothing to do with 9/11 or al Qaeda.

So consider what this legal house of cards is built on. Largely because the Bush Administration sent Ibn Sheikh al-Libi to our Egyptian allies to torture, it got to include terrorism language in an AUMF against a country that had no tie to terrorism. It then used that language on terrorism to justify ignoring domestic laws like FISA. Given Lederman’s language, we can assume the Administration is still using the Iraq AUMF in the same way Goldsmith did. And yet, in spite of the fact that the war is ending, we refuse to repeal the AUMF used to authorize this big power grab.

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Give Them a Damn Ticker Tape Parade Already

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“Who will be the last senator to not want to end a mistake? Me.” – John Kerry

That’s the way MightyOCD interpreted John Kerry’s vote–along with 66 of his colleagues–not to repeal the Iraq war that is ending whether they like it or not next month.

The vote was on a Rand Paul amendment to repeal the 2002 Iraq War AUMF.

Along with Paul, DeMint, Heller, and Snowe, a bunch of liberals and Blue Dogs like Bad Nelson and Manchin voted to end the Iraq mistake.

Yet liberals like Levin, Stabenow, Reed, and Whitehouse voted to continue the war that is ending.

By my count, something like 25 men and women who weren’t around to vote for the AUMF when it first passed in 2002 voted in favor of continuing this infernal war–and that’s not counting people like Levin and Stabenow who voted against it the first time.

So we’re going to have all these AUMFs lying around on the books. authorizing secret powers we’re not allowed to know, rather than simply and cleanly declaring a war over. Done.

In the good old days, you’d declare victory and give the men and women who served a big parade. How I’d love a parade about now.

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Patrick Leahy in Big Rush to Reconfirm the Guy Who Won’t Solve Leahy’s Attempted Murder

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By now, it should be clear that, contrary to their claims, the FBI has not solved the anthrax killings. Sure, Bruce Ivins can’t be ruled out as having been involved. But the FBI has offered no plausible explanation for the following:

  • How a small sample of anthrax from Ivins’ flask was cultured into at least two larger samples of anthrax with a number of materials added
  • How those samples were dried
  • When that happened and how long that took
  • How and why the anthrax got sent from Princeton (I consider the KKG story implausible)
  • Why Leahy and Daschle were targeted

The FBI hasn’t even offered an explanation for several of these questions (they’ve offered weak explanations for the Princeton mailing and the Leahy and Daschle targeting).  And yet, based largely on Bruce Ivins’ long hours in a lab that was not amenable to producing the anthrax used in the attack, the FBI insists he’s the culprit (his lab hours are close to being an alibi at this point).

Which is why Patrick Leahy’s push to reconfirm Robert Mueller–particularly Leahy’s citation of urgency surrounding the 9/11 anniversary (which after all means the 10 year anniversary of the unsolved anthrax attack is approaching as well)–is so odd. In comments on the Senate floor on Monday, Leahy pressured Rand Paul to release his hold on Mueller’s reconfirmation.

“There is no good reason for delay. At first it was reportedly Senator Coburn who was holding up consideration of the bill, then Senator DeMint, and now apparently it is an objection by Senator Paul of Kentucky that is preventing the Senate from proceeding. This sort of delay is inexplicable and inexcusable.”

Leahy continued, “Given the continuing threat to our Nation, especially with the tenth anniversary of the September 11, 2001, attacks approaching, and the need to provide continuity and stability on the President’s national security team, it is important that we respond to the President’s request and enact this necessary legislation swiftly. I urge the Senate to take up this critical legislation and pass it without further delay.”

We’ve gotten the people behind 9/11. We have not yet gotten the people behind a government-connected terrorist attack on its own people. And yet Leahy–one target of that attack–is unquestioningly pushing the guy who refuses to solve the case (much less allow an independent review of the FBI’s investigation into it) for two more years.

Leahy’s pressure on Paul is all the more weird considering that Leahy, with his support for PATRIOT Act improvements in the past, has basically ceded the legitimacy of a number of the questions Paul wants answered before Mueller is reconfirmed, notably those about how the PATRIOT Act is used and abused.

I don’t often think Rand Paul is smarter than Patrick Leahy, but in this case, Leahy’s rush to reconfirm Mueller without asking any questions or getting any commitments on these issues is “inexplicable and inexcusable,” not Paul’s efforts to exercise a tiny bit of oversight.

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Rand Paul’s Timely Questions

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Charlie Savage has a report describing how Rand Paul’s hold the reconfirmation of Robert Mueller threatens to push the process beyond the time when Mueller’s ten year appointment date.

[A] necessary first step — enacting legislation that would create a one-time shortened term and make an exception to a 10-year limit on the amount of time any person may serve as director — has been delayed by Senator Rand Paul of Kentucky, a libertarian-leaning Republican who was elected last year. He is invoking a Senate rule that allows any member to block a swift vote on a bill.

There may be significantly less time to complete the steps necessary to avoid a disruption at the F.B.I. than had been generally understood.

The widespread understanding has been that Mr. Mueller’s term will expire on Sept. 3, because he started work as F.B.I. director on Sept. 4, 2001.

But the administration legal team has decided that Mr. Mueller’s last day is likely to be Aug. 2, because President George W. Bush signed his appointment on Aug. 3, 2001. Coincidentally, Aug. 2 is also the day the government will hit a debt ceiling if Congress does not raise it.

I’ll be curious, though, whether the questions Paul has submitted to be answered before the vote might also lead to a delay, too In addition to questions about:

Circumstances implicating the Iraqis indicted in Bowling Green, KY
Investigative lapses of Zacarias Moussaoui that happened under Mueller’s predecessor
A Resource Guide: Violence Against Reproductive Health Care Providers calling boycotts “intimidation” (that might be more easily answered if the government would get over its squeamishness about calling Scott Roeder a terrorist)
A Missouri fusion center report suggesting support for Ron Paul (and Bob Barr!) might be a political risk factor for domestic terrorism

Paul also asks for the FBI to describe how many time it used each of the following tools, whether against citizens or non-citizens, and how many convictions resulted:

John Doe roving wiretaps
Section 215 orders (including its use for library records)
National Security Letters
Suspicious Activity Reports

He also asked, with respect to SARs, whether they got minimized after being investigated.

Now, Paul did not ask for this data in the most savvy fashion. For example, he did not specify on his Section 215 request that he wanted details on the secret program that uses cell phone data to collect geolocation. Nor did he ask generalized questions about minimization. Nor did he specify he wanted this data in a form which he could release publicly.

But these questions are, to a significant extent, the kind of disclosures that Democrats and Paul had been pushing to add to the PATRIOT Act.

In the past, DOJ has not exactly been forthcoming with some of this information. Even assuming they’ll answer Paul in classified form (particularly his question about SARs minimization), it’s not clear how quickly they’ll be able to produce some of this information.

All of which adds to the possibility that Paul’s request might hold up Mueller’s re-confirmation past August 2. If that happens–Tom Coburn has suggested–there are a range of surveillance authorizations that might be open to challenge because no confirmed FBI Director had approved them.

Nice to see someone wring some transparency out of this silly reconfirmation process.

 

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The PATRIOT Act Vote: One Quarter of the Way to a Fourth Amendment

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The final vote in the Senate opposing yet another sunset of the PATRIOT act was 72-23-5, meaning we’re almost a quarter of the way to regaining some semblance of a Fourth Amendment.

Heh.

Those voting against the forever PATRIOT?

Akaka (D-HI)

Baucus (D-MT)

Begich (D-AK)

Bingaman (D-NM)

Brown (D-OH)

Cantwell (D-WA)

Coons (D-DE)

Durbin (D-IL)

 Franken (D-MN)

Harkin (D-IA)

Heller (R-NV)

Lautenberg (D-NJ)

Leahy (D-VT)

Lee (R-UT)

Merkley (D-OR)

Murkowski (R-AK)

 Murray (D-WA)

Paul (R-KY)

Sanders (I-VT)

Tester (D-MT)

Udall (D-CO)

Udall (D-NM)

Wyden (D-OR)

Though note we’re not really a quarter of the way to a Fourth Amendment. Most of these Dems, I suspect, oppose the passage of another sunset without a debate. Some are particularly pissed about the latest interpretation of Section 215. But most still support the concept of PATRIOT powers.

Which means we’re not really making all that much progress.

One aspect of today’s vote I did find interesting, however, was that five Republicans voted against tabling Rand Paul’s gun amendment (limiting the use of Section 215 to get gun records), but voted in favor of the overall sunset. These five are: Barrasso (WY), DeMint (SC), Enzi (WY), Moran (KS), and Shelby (AL).

In other words, these men seem to object only to the use of super government powers when it threatens their gun rights, but not their First Amendment, nor their financial privacy, nor their associations.

While I happen to think figuring out what kind of guns suspected terrorists are buying is a reasonable use of a counter-terrorism law, if we have to have one, I am curious whether this vote will make gun nuts realize that their privacy’s at stake, too (though Saxby Chambliss got up to make it clear that domestic terrorists–like the right wing terrorists who might most object to using PATRIOT to collect gun purchase records–were not at risk). This vote also has the makings of one that TeaParty politicians might use to distinguish themselves from other Republicans.

Because right now, opposition to PATRIOT excesses is still mostly a Democratic issue (though Rand Paul definitely took the leadership role Russ Feingold would have had in the past). Until more Republicans join Paul, Heller, and Lee in opposing PATRIOT, it’ll remain on the books, particularly so long as we have a Democratic President whom Democratic Senators are happy to have wielding such power.

Update: After a half hour of debate, the extension passed the House 250-153.

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Clapper: We Need to Pass PATRIOT to Make Sure Apple Continues to Track Your Location

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I’m very sympathetic to what Glenn and bmaz and Spencer and Julian have to say about the stupid fear-mongering around today’s PATRIOT extension. Julian’s explanation of how the grandfather clause would work is particularly important:

. A lapse of these provisions for a few days—or a few weeks—would have no significant effect. First, they’re all covered by a grandfather clause.  And contrary to what the New York Times implies, that doesn’t just mean that orders or warrants already issued under these authorities remain in effect.  Rather, as the Congressional Research Service explains (using the sunset deadline from prior to a short-term extension):

The grandfather clauses authorize the continued effect of the amendments with respect to investigations that began, or potential offenses that took place, before the provision’s sunset date.108 Thus, for example, if an individual were engaged in international terrorism on the sunset date of February 28, 2011, he would still be considered a “lone wolf” for FISA court orders sought after the provision has

expired. Similarly, if an individual is engaged in international terrorism on that date, he may be the target of a roving wiretap under FISA even after authority for new roving wiretaps has expired.

Got that? Every investigation already in progress at the time of sunset gets to keep using the old powers. Every new investigation where the illegal conduct in question began before the sunset date gets to keep using the old powers. Over the span of a few days or weeks, that’s going to cover almost every actual investigation. For the tiny number that don’t fall into those categories, if there are any at all in the space of a short lapse, investigators will be “limited” to relying on every other incredibly broad tool in the Foreign Intelligence Surveillance Act arsenal—with, of course, the option to use plain old criminal investigative authorities as well.

And James Clapper’s fearmongering letter–which was liberated by Sam Stein–is particularly absurd on most counts.

I mean, are we supposed to worry that the government can’t “conduct timely surveillance on a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States,” when the government has never had a need to use this authority, not even with Khalid Ali-M Aldawsari, who was a “a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States”?

I mean, if Clapper wants to make bullshit claims, he just encourages us to treat everything he says as bullshit.

That said, I wonder whether the underlying issue here isn’t the explicit powers–the ability to find out about “terrorist [and non-terrorist] purchases of bomb-making chemicals” with Section 215, for example, but instead the secret collection programs. Clapper says,

Important classified collection programs might be forced to shut down, causing us to lose valuable intelligence information that could be used to identify terrorists and disrupt their plots.

After all, we presume the government is collecting geolocation data not through an actual investigation related to an individual suspect and therefore grandfathered in under the terms Julian laid out. We presume the government is playing fast and lose with the word “related to” in Section 215.

And so it’s not so much that we’ll lose track of Muslims who buy hydrogen peroxide. It’s that the corporations being forced (we presume) to turn over geolocation data are going to respond to the very public lapse of PATRIOT and refuse to keep turning that data over.

(In this way, this fearmongering is precisely like the fearmongering used in February 2008 after the Protect America Act expired; the real issue was the complaints of the telecoms who were legally on the line.)

Of course, none of this means anyone ought to cave to the fearmongering. After all, if the legal basis for this collection is so sketchy that it wouldn’t qualify for the grandfathering that the real authorities do, the government probably ought not be relying on it, right?

Or maybe Reid is just channeling Dick Cheney because he’s anxious to start his long holiday weekend.

 

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