Who Will Be the Last 31 Americans to Die in Effort to Kill the Last 31 Al Qaeda Members in Afghanistan?

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There are early reports out that the Taliban shot down a NATO helicopter with a rocket propelled grenade. Hamid Karzai has said the casualties include 31 Americans and 7 Afghans. And while President Obama has not put a number on the deaths, he has put out a statement mourning the loss.

My thoughts and prayers go out to the families and loved ones of the Americans who were lost earlier today in Afghanistan. Their deaths are a reminder of the extraordinary sacrifices made by the men and women of our military and their families, including all who have served in Afghanistan. We will draw inspiration from their lives, and continue the work of securing our country and standing up for the values that they embodied.  We also mourn the Afghans who died alongside our troops in pursuit of a more peaceful and hopeful future for their country. At this difficult hour, all Americans are united in support of our men and women in uniform who serve so that we can live in freedom and security.

So it seems America has suffered around 31 deaths in one incident, in a war ostensibly being fought to destroy al Qaeda.

Yet David Petraeus has said there are fewer than 100 al Qaeda members in Afghanistan, and fewer than 10-20 al Qaeda leaders remain alive anywhere.

In this one incident, we lost roughly as many Americans as remaining members of our purported enemies exist.

That’s not the way to win the war on terror.

Update: Yochi Dreazen’s thoughts on significance of this incident.

Update: Reports now say that at least 20 of the men killed in the crash were SEAL Team 6, the same unit (though not necessarily the same men) that killed OBL.

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Obama Administration: Don’t Cut Construction Funding to Bahrain

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In its statement of Administration policy on HR 2055–which funds military construction–the Administration expressed concern that the Senate had cut $100 million funding for two projects in Bahrain.

The Administration is worried, you see, that such cuts would signal that we do not “stand by its allies.”

The Administration is concerned about the reduction in funding for military construction projects in Bahrain as well as those associated with the relocation of United States Marines to Guam. Deferring or eliminating these projects could signal that the U.S. does not stand by its allies or its agreements such as the realignment of forces from Okinawa to Guam.

Because it’s very important to “stand by” our allies, I guess, when the abuse their own people.

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Hamid Karzai’s Brother Killed by Guard

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This is going to make it more difficult for us to declare victory and withdraw from Afghanistan.

Ahmed Wali Karzai, the Kandahar provincial council chief, was killed during a gathering, said provincial governor Tooryalai Wesa. He did not know a motive.

While the governor initially said a friend killed Karzai, his spokesman later clarified that the death was at the hands of a guard.

The Taliban claimed responsibility for the shooting, saying that the guard accused of shooting him was working for them.

There are reports saying the guard had a grudge, and was not working for the Taliban; whether or not that’s spin, though, it highlights the lack of security in the country. In any case, for all AWK’s corruption, he was a key figure in Hamid Karzai’s exercise of power. (Not to mention the CIA’s past monetary support of AWK.)

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Government: Risen Shouldn’t Be Able to Reveal We Want(ed) to Trump Up War against Iran

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The government has now responded to Risen’s attempt to quash his subpoena in the Jeffrey Sterling case. I fear the government will succeed in at least getting Risen to the stand, not least because of the gimmicks they’ve used to claim they need information not protected by any confidentiality agreement Risen might have had with Sterling.

But a more interesting political debate–albeit one that likely will be dismissed from a legal standpoint–pertains whether Risen was right to expose a program to deal fabricated nuclear materials to Iran at the moment when the government was using fabricated nuclear materials to try to drum up a war against Iran.

The government’s weak rebuttal to Risen’s harassment claim

I think the government’s subpoena of Risen is still very vulnerable to the argument that they are harassing Risen. The government dismisses the claim by emphasizing that the grand jury approved this indictment, as if that eliminated any animus from the government officials presenting the case to them, or the way that the government could “affirmatively operat[e] with furtive design or ill will” (the government’s own definition for harassment) to jail Risen in pursuit of his testimony.

Moreover, the Indictment in this matter was returned by a grand jury that found probable cause that serious crimes were committed by Sterling, and that Risen was a witness to those crimes. As such, any alleged harassment prior to that time – which the Government denies – is of no moment. Risen does not even attempt to address this central fact, or challenge in any way the detailed allegations against Sterling in the Indictment for which he is an eyewitness.

But Risen’s team would need to emphasize more strongly the extent to which the government is going to shield illegal behavior in the al-Haramain case. Moreover, the question of how the government got a list of Risen’s phone contacts remains a crucial one impacting the proof of harassment.

If secret unrebutted witnesses claim something is false, then journalists have to testify

I’m also amused (or perhaps disgusted) by a new tack the government takes here, by insisting that Risen must disclose his source because–they argue–the grand jury has found that his reporting included false information.

Risen’s beliefs that his confidential source(s) provided him truthful information, no matter how sincerely held, do not alter the indisputable fact that the grand jury found otherwise.

Aside from the fact that the government does not dispute that some of what it claims Sterling told Risen is true, the grand jury, of course, is not a confrontational proceeding. Sterling and his Russian asset did not, to the best of my understanding, testify before the grand jury. No final judgment on whether Sterling lied or not has been rendered.

And of course, the government would adamantly refuse to make any information with which the jury could assess such information available in court (indeed, I doubt they have made it available to Judge Brinkema here). In other words, the government wants to be able to force a reporter to testify based solely on its unrebutted assertion–endorsed by a grand jury–that Sterling lied. Given the asymmetry of access to classified information, given the government’s repeated success in withholding information from such trials, that is a very dangerous approach to allow to stand.

Risen’s efforts to prevent another war

But I’m most interested in the government’s weak response to Risen’s claim to have published the information because it was newsworthy. They don’t deal with the substance of Risen’s claim to newsworthiness, which basically argues he published the information in 2006 because the government was threatening to trump up another war, this time against Iran.

I gave this type of serious consideration to my publication of the information contained in Chapter 9 of State of War. I actually learned the information about Operation Merlin that was ultimately published in Chapter 9 of State of War in 2003, but I held the story for three years before publishing it. I made the decision to publish the information about Operation Merlin only after: (1) it became clear that the main rationale for fighting the Iraq War was based on flawed intelligence about Iraq’s non-existent weapons of mass destruction, including its supposed nuclear program; (2) the press, patiicularly The New York Times, had been harshly criticized for not doing more independent investigative reporting before the Iraq War about the quality of our intelligence concerning Iraq’s weapons of mass destruction; (3) the March 31, 2005 Report to the President by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction described American intelligence on Iran as inadequate to allow finn judgments about Iran’s weapons programs, making it clear that the CIA’s intelligence on weapons of mass destruction in Iran was just as badly flawed as it had been on Iraq; and (4) there was increasing speculation that the United States might be planning for a possible conflict with Iran, once again based on supposed intelligence concerning weapons of mass destruction, just as in Iraq. After all of this, I realized that U.S. intelligence on Iran’s supposed weapons of mass destruction was so flawed, and that the information I had was so important, that this was a story that the public had to know about before yet another war was launched.

Instead, they just talk about how dangerous (because trumped up wars aren’t dangerous) it would be excuse Risen from testifying because he published information that was newsworthy.

Moreover, the practical effect of a court’s engaging in such an analysis, by explicitly recognizing “good leaks” of classified information, would effectively destroy the system through which the country protects that information. It would encourage government employees who are provided access to classified information to betray their commitment to safeguard it by suggesting that they, too, should undertake their own independent analysis of the effect of their disclosure of that information should they desire to do so. It would also provide a ready-made defense for every disgruntled intelligence community employee or contractor who discloses such information to the press because he harbors a grudge against the institution for which he works.

(They also revert to their unproven claim that Sterling provided Risen with false information.)

But consider the environment in which Risen published this. Just a month before the publication of Risen’s book, it was becoming increasingly clear that the government had been trying for a year to generate support for actions against Iran by using a dodgy dossier and selectively tailored presentations based on non-traditional intelligence analysis.

The Bush Administration (or at least State Department officials) may not have believed that intelligence was ready for prime time a year ago. But they apparently believe it is ready now. In September we learned BushCo had itself another powerpoint presentation, this one titled “A History of Concealment and Deception” (did they get the same guy who came up with the name for the WHIG product, “A Grave and Gathering Danger” to name this one?):

The PowerPoint briefing, titled “A History of Concealment and Deception,” has been presented to diplomats from more than a dozen countries.

[snip]

Several diplomats said the slide show reminded them of the flawed presentation on Iraq’s weapons programs made by then-secretary of state Colin L. Powell to the U.N. Security Council in February 2003.

BushCo may think this is ready for prime time. But some people who have seen the presentation are not so sure.

Several diplomats said the presentation, intended to win allies for increasing pressure on the Iranian government, dismisses ambiguities in the evidence about Iran’s intentions and omits alternative explanations under debate among intelligence analysts.

The presenters argue that the evidence leads solidly to a conclusion that Iran’s nuclear program is aimed at producing weapons, according to diplomats who have attended the briefings and U.S. officials who helped to assemble the slide show. But even U.S. intelligence estimates acknowledge that other possibilities are plausible, though unverified.

The problem, acknowledged one U.S. official, is that the evidence is not definitive. Briefers “say you can’t draw any other conclusion, and of course you can draw other conclusions,” said the official, who would discuss the closed-door sessions only on condition of anonymity

Sounds familiar, huh? Omitting alternative explanations … again? But the most important line from this passage is this: “But even U.S. intelligence estimates acknowledge that other possibilities are plausible, though unverified.” Quick, someone tell Condi that somewhere deep in the bowels of the agency there are people who doubt this intelligence, because she will deny it later, mark my words.

We’re in the middle of arguments about the intelligence used to get us into the Iraq War, where Republicans try to prove that BushCo didn’t withhold information and Democrats point out that the Administration suppressed the doubts within the IC. But why are we having the argument about the last war, when they’re doing it again??? The Bush Administration is withholding information in the present–regardless of what it did in the past.

One more thing. This slide show? You’d think it’d reflect the consensus opinion of the IC, right? Well, no. Rather, it looks a lot more like the product of the reincarnation of OSP or WHIG than something respectable intelligence professionals (if there are any left who haven’t been hounded out by BushCo) would buy off on:

The presentation has not been vetted through standard U.S. intelligence channels because it does not include secret material. One U.S. official involved in the briefing said the intelligence community had nothing to do with the presentation and “probably would have disavowed some of it because it draws conclusions that aren’t strictly supported by the facts.”

The presentation, conducted in a conference room at the U.S. mission in Vienna, includes a pictorial comparison of Iranian facilities and missiles with photos of similar-looking items in North Korea and Pakistan, according to a copy of the slides handed out to diplomats. Pakistan largely supplied Iran with its nuclear infrastructure but, as a key U.S. ally, it is identified in the presentation only as “another country.”

Two months ago, the Bush Administration presented an explicitly politicized presentation to diplomats from other countries in an attempt to drum up support for a hardline against Iran.

Since that time, the IAEA has received evidence that the “laptop of death” on which this fearmongering was based might be a fabrication. Later, evidence came out to suggest the laptop of death came from the MEK (the same terrorist group the neocons are trying to rehabilitate, oddly without being prosecuted for material support for terrorism) via Mossad.

In other words, Risen published a story about the US providing fabricated nuclear plans to Iran. He published it–in spite of the government’s earlier success at persuading the NYT not to publish it–because the US had since been proven to have used fabricated intelligence to trump up a war against Iraq, and the government was in the process of using probably-fabricated materials (which included fabricated blueprints) to trump up action against Iran.

Now, I think Leonie Brinkema will do what District Court judges tend to do when the government says judges are unqualified to measure the importance of secrecy: I think she’ll cede to the government’s argument, no matter what she does on the other legal arguments.

But that doesn’t mean the conflict shouldn’t be one of the primary  topics of public discussion about this case.

The government is basically arguing that Risen shouldn’t have published information that helped us (so far) avoid a trumped-up war against Iran. It is quite possible he will end up spending time in jail–for protecting his sources–for having done so (as well as for having exposed illegal wiretapping that has never been punished). While the legal arguments may not work in Risen’s favor, that is what is at stake.

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Obama War Powers Treachery and The Founders’ Remedies

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Signing-constitutionAs most know by now, Charlie Savage at the New York Times let loose a stunning blockbuster of an expose of the conduct of Barack Obama and his inner circle in relation to the Libyan war vis a vis the War Powers Resolution:

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

Let’s be crystal clear as to what happened here: The Attorney General, Head of the Office of Legal Counsel and the General Counsel for the Pentagon/DOD all listened to Obama’s plan to flat out ignore the War Powers Resolution (50 U.S.C. 1541-1548), and the Article I power it represents, and they unanimously said it was untenable and illegal in the face of the War Powers Resolution.

Mr. Obama knows the War Powers Resolution exists, does not challenge its viability or Constitutionality and, against the direct opinion and advice of the three most germane attorneys in the United States Government, has just blithely and unilaterally blown it off. There are nine fairly short provisions in the statutory delineation of the “War Power Resolution” and, despite the yammering from the Administration and dithering by the press, they are actually remarkably clear in their intent and letter.

A criminal can nuance, excuse and rationalize himself around pretty much every statutory criminal provision, but society as a whole has no problem looking at the statute and seeing that there is offending conduct. And so it is here; Obama has thrown up sophistry, excuse and self indulgent rationalization. But any honest review of the WPR yields the unmistakable conclusion Obama is in direct violation, and has been from the outset. Congress has been crystal clear that they have NOT authorized Read more →

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The Oil Weapon and the Fight for Hegemony of the Middle East

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Saudi Arabia’s efforts to get OPEC to raise production has foundered on opposition, mostly from those on the other side of the fight for hegemony of the Middle East and the world, starting with Iran. The vote came down to Saudi Arabia, Qatar, Kuwait, and UAE against Iran, Iraq (!), Libya, Algeria, Angola, Ecuador, and Venezuela.

But as that breakout makes clear, this is as much about making things difficult for the US as anything else.

Analysts said that while there were opposing views on whether markets required more crude, the backdrop to the disagreement revolved around political tensions in the Middle East and North Africa and differences over how to respond to consumer demands.

“One factor is a diverging market view. Another is politics,” said analyst Samuel Ciszuk at IHS. “At times of heated politics/ideological debate, Saudi struggled to dominate as much as it could have given its size vis-a-vis others in OPEC.

Gulf Arab producer Qatar has given support to Libyan rebels fighting the government of Libya’s Muammar Gaddafi. And Saudi Arabia has angered Shi’ite Iran by using force to support the Sunni Bahraini government in suppressing a Shi’ite rebellion.

Easily OPEC’s biggest producer, Saudi Arabia normally gets its way.

But this time those in OPEC politically opposed to the United States — led by Iran and Venezuela — found enough support to block Riyadh.

“Saudi is the cartel member most interested in earning political points’ with consuming countries, and maintaining its image as a reliable supplier of last resort,” said Katherine Spector at CIBC World Markets.

“Venezuela and Iran likely feel they have less to gain politically by increasing quotas as a symbolic gesture.”

The IEA responded by begging Saudi Arabia to increase supply anyway.

“Of course what really matters is actual supply, which should move in line with seasonally rising demand, and we urge key producers to respond accordingly,” the IEA said.

It also once again made oblique reference to the only real tool it has at its disposal to battle high prices — the 1.5 billion barrels of government held oil inventories that it coordinates on behalf of its 28 members, a reserve meant to be used only in the event of an emergency outage.

“The IEA stands ready to work with its member governments and others to help ensure that markets are well supplied,” the agency said in an email.

And Ed Markey was the first member of what will surely be many members of Congress advocating to tap the Strategic Reserve.

“OPEC, led by Iran and Venezuela, has snubbed its nose at the United States and the rest of the Western nations addicted to OPEC oil,” said Markey, the top member of the minority party on the Natural Resources Committee in the House of Representatives, said in a release.

“This is a clear sign that America must engage in a long-term plan to break our ties to this OPEC-controlled market, and prepare to deploy America’s oil reserves now to head off an economic collapse from continued high gas(oline) prices.”

Well, if there was any doubts Congress would find the Libyan war legal yesterday, those doubts will be dispersed today. And fracking? Expect more of it in your local drinking water.

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Obama Issues Veto Threat on Forever War

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The Administration just issued its official position on the House Armed Services Committee Defense Authorization bill. In it, Obama issues veto threats on several issues, including an extra engine for the Joint Strike Fighter and limits on START nuclear reductions (but not, it must be said, on any delay of DADT repeal, though he did oppose efforts to delay repeal).

Most interesting, though, is the veto threat on the forever war (see Ben Wittes for a good summary of most of these sections):

Detainee Matters:  The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards.  At a minimum, this is an issue that merits more extensive consideration before possible inclusion.  The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees.  Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests.  It unnecessarily constrains our Nation’s counterterrorism efforts and would undermine our national security, particularly where our Federal courts are the best – or even the only – option for incapacitating dangerous terrorists.  For decades, presidents of both political parties – including Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and George W. Bush – have leveraged the flexibility and strength of our Federal courts to incapacitate dangerous terrorists and gather critical intelligence.  The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts – a powerful tool that must remain an available option.  The certification requirement in section 1040, restricting transfers to foreign countries, interferes with the authority of the Executive branch to make important foreign policy and national security determinations regarding whether and under what circumstances such transfers should occur.  The Administration must have the ability to act swiftly and to have broad flexibility in conducting its negotiations with foreign countries.  Section 1036 undermines the system of periodic review established by the President’s March 7, 2011, Executive Order by substituting a rigid system of review that could limit the advice and expertise of critical intelligence and law enforcement professionals, undermining the Executive branch’s ability to ensure that these decisions are informed by all available information and protect the full spectrum of our national security interests.  It also unnecessarily interferes with DoD’s ability to manage detention operations.  Section 1042 is problematic and unnecessary, as there already is robust coordination between the Department of Justice, the Department of Defense, and the Intelligence Community on terrorism-related cases, and this provision would undermine, rather than enhance, this coordination by requiring institutions to assume unfamiliar roles and could cause delays in taking into custody individuals who pose imminent threats to the nation’s safety.  If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President’s senior advisors would recommend a veto.

While I would have preferred a full-throated rejection of the forever war, this is a neat approach that, given realistic assumptions of what we can expect from Obama, pushes back in an interesting fashion.

What the Administration has done is list five different provisions:

  • 1034: redefining the AUMF to be a forever war (and also giving the President the power to detain people in the forever war)
  • 1039: barring the use of funds for civil trials
  • 1040: imposing certification requirements on the Secretary of Defense to transfer detainees
  • 1036: codifying an indefinite detention system, with fewer detainee rights than Obama’s own EO calls for
  • 1042: requiring the Attorney General ask permission from the DNI and Secretary of Defense before prosecuting “terrorist offenses” in civilian courts

And then said, generally, if “these provisions that challenge critical Executive branch authority” remain in the bill, his advisors would recommend a veto.

Of course, on its face, the forever war section doesn’t “challenge critical Executive branch authority,” unless you argue that by granting the President the ability to constantly redefine this war, you’re infringing on his authority to do so without a grant of such authority from Congress. That’s not how I understand the Constitution, but you can never be too sure anymore about the people who run our war machines.

Nevertheless, Obama is including that with a bunch of other restrictions (some of which passed in similar form on other laws, to which he responded with a non-signing statement signing statement, and some of which are new), so as to be able to say his opposition is grounded in separation of power concerns rather than the judgment that Congress shouldn’t mandate a forever war the President hasn’t asked for.

Again, I’d rather have a loud denunciation of the forever war. I’d rather have a clear argument about how we will start moving away from a war footing in our opposition to terrorism.

But I’m not going to get that, so I’ll take this graceful veto threat instead.

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Why Didn’t FBI Investigate AFIP’s Role in Starting the Iraq-Anthrax Rumors?

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I’ve been reading the National Academy of Sciences Anthrax Report and noted something odd in follow-up to the McClatchy report of the other day describing unexplained tin and silicon in one of the anthrax samples. (Here’s Jim White’s post on the report.) As McClatchy reported, there’s some weird data about silicon and tin in some of the samples.

The lab data, contained in more than 9,000 pages of files that emerged a year after the Justice Department closed its inquiry and condemned the late Army microbiologist Bruce Ivins as the perpetrator, shows unusual levels of silicon and tin in anthrax powder from two of the five letters.

[snip]

To arrive at that position, however, the FBI had to discount its own bulk testing results showing that silicon composed an extraordinary 10.8 percent of a sample from a mailing to the New York Post and as much as 1.8 percent of the anthrax from a letter sent to Democratic Sen. Patrick Leahy of Vermont, far more than the occasional trace contamination. Tin — not usually seen in anthrax powder at all — was measured at 0.65 percent and 0.2 percent, respectively, in those letters.

But it turns out that the weirdest data–showing the 10.8 silicon in the NY Post sample–didn’t come from FBI. As NAS explained, that data came from the Armed Forces Institute of Pathology.

Early in the investigation, AFIP performed [scanning electron microscopy-energy-dispersive X-ray] SEM-EDX analysis of a New York Post letter sample and found regions in the sample having high silicon content but no oxygen, suggesting the presence of silicon-rich material that was not related to nanoparticulate silica. While this observation could have led to an explanation for the difference between the bulk and individual spore measurements, follow-up experiments apparently were not performed.

A release from AFIP describing their analysis of the Daschle letter (not the NY Post letter) is one of the most cited sources of the claim that the anthrax was weaponized in a uniquely Iraqi fashion.

“Ft Detrick sought our assistance to determine the specific components of the anthrax found in the Daschle letter,” said Florabel G. Mullick, MD, ScD, SES, AFIP Principal Deputy Director and department chair. AFIP experts utilized an energy dispersive X-ray spectrometer (an instrument used to detect the presence of otherwise-unseen chemicals through characteristic wavelengths of X-ray light) to confirm the previously unidentifiable substance as silica. “This was a key component,” Mullick said. “Silica prevents the anthrax from aggregating, making it easier to aerosolize. Significantly, we noted the absence of aluminum with the silica. This combination had previously been found in anthrax produced by Iraq.”

This was the analysis that a USAMRID scientist used to declare that the anthrax was weaponized–which said scientist retracted after later Sandia analysis was done (from the NAS report).

An initial finding by the Armed Forces Institute of Pathology (AFIP) found, upon gross examination, that the spores exhibited a silicon signal and sometimes exhibited an oxygen signal. Subsequent studies conducted by Sandia National Laboratories (as described in Chapter 4 of this report) determined that the silicon was localized to the spore coat within the exosporium—that is, it was incorporated into the cell as a natural part of the cell formation process. The USAMRIID scientist who first reviewed the AFIP results and made statements regarding the presence of silicon and possible weaponization retracted those earlier statements.

So some of this was known before–that AFIP served a key role in early rumors that the anthrax was weaponized in a way that pointed to Iraq. But the NAS report seems to confirm that the Iraq rumors originated at least in part from AFIP.

That’s all very interesting for several reasons. First, because FBI claims to have gotten data on AFIP’s SEM-EDX tests just last year.

The committee notes that this information was not made available to it or to the FBI until spring 2010.

That would mean FBI didn’t get (or ask for?) the information until after it had closed the investigation (they closed the investigation in February 2010)!

It would also suggest–rather incredibly–that FBI didn’t hunt down this information when they were stonewalling Jerry Nadler about it (as McClatchy reminds).

New York Democratic Rep. Jerrold Nadler asked FBI Director Robert Mueller how much silicon was in the Post and Leahy letters at a hearing before the House Judiciary Committee in September 2008. The Justice Department responded seven months later that silicon made up 1.4 percent of the Leahy powder (without disclosing the 1.8 percent reading) and that “a reliable quantitative measurement was not possible” for the Post letter.

More interesting still, NAS can’t explain what relationship existed between FBI and AFIP.

The committee also reviewed reports of work carried out in parallel at the AFIP although it is not clear how closely AFIP and the FBI investigative and scientific teams worked together or coordinated their efforts.

I’m also confused about when AFIP did these tests. In its list of official tests, NAS describes the AFIP SEM-EDX tests as having taken place in November 2001.

But somewhere along the way, perhaps along with information about the investigation of a claimed al Qaeda anthrax site explored in 2004, NAS got additional materials from AFIP dating to October 2001.

AFIP Materials related to USAMRIID Specimens October 2001 (41 pages)

And still more interesting is the reference to documents provided to NAS in December 2010–at the time when FBI was trying to stall the release of this document–showing AFIP, along with USAMRID, purportedly conducted anthrax studies on the remains of the Flight 93 9/11 hijackers.

Finally, in the new materials provided to the committee it is noted that [polymerase chain reaction] PCR analysis was performed on human remains from United flight 93 on 9/11/2001 that were identified as those of the hijackers (B3D1). Analysis was performed at USAMRIID and at AFIP for sequences diagnostic of B. anthracis. One assay at USAMRIID gave positive results, but these results were believed by the FBI to be due to laboratory contamination. All other results were negative. As the committee learned at the January 2011 meeting, there were no tests done on remains from any of the other September 11, 2001 hijackers. [my emphasis]

So let’s see. At some point during the anthrax attacks in 2001, USAMRID and AFIP decided to do anthrax tests on material from Flight 93. They purportedly  found the hijackers tested positive for anthrax! But on second thought, FBI tells us, that positive result came from “lab contamination.” And then, presumably just after those tests, USAMRID and AFIP, perhaps working outside the chain of the official FBI investigation of anthrax, discover evidence implicating Iraq in the anthrax attacks. Results that, once again, further testing suggested was inaccurate.

Another example of lab contamination, I guess. Funny how that happens.

And the FBI wants us to believe that over the course of a 9 year investigation, they never decided to investigate the circumstances surrounding this partnership that somehow always resulted in convenient propaganda?

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War, Intelligence, Law and Forever

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There are a number of oddly coinciding legal issues that I wanted to pull together into one post.

The Administration Fudges the War Powers Act

First and most obviously, today is the day the 60-day grace period for Libya under the War Powers Act expires. Obama should, by law, have to go to Congress to get sanction for our third war against a Muslim country.

Mind you, Congress isn’t going to make the President do that.

But just to be safe, the Administration is going to conduct some kind of legal hocus pocus to make sure it can claim it isn’t violating the WPA.

A variety of Pentagon and military officials said the issue was in the hands of lawyers, not commanders. Several officials described a few of the ideas under consideration.

One concept being discussed is for the United States to halt the use of its Predator drones in attacking targets in Libya, and restrict them solely to a role gathering surveillance over targets.

Over recent weeks, the Predators have been the only American weapon actually firing on ground targets, although many aircraft are assisting in refueling, intelligence gathering and electronic jamming.

By ending all strike missions for American forces, the argument then could be made that the United States was no longer directly engaged in hostilities in Libya, but only providing support to NATO allies.

Another idea is for the United States to order a complete — but temporary — halt to all of its efforts in the Libya mission. Some lawyers make the case that, after a complete pause, the United States could rejoin the mission with a new 60-day clock.

My money, given the way that the OLC wrote a memo retroactively justifying the first several weeks of the war that culminated with us ceding control to NATO (and for other reasons), is that we’ll choose option A; we’ll pretend that we’re just conducting a very expensive unfunded intelligence operation in support of our NATO allies and call that good.

Congress Tries to Force Obama to Fight the Forever Whereever War

Then there’s the Republicans efforts to rewrite the AUMF in the spending bill, which would make it a lot easier to pass without a lot of debate and certainly without concerted attention to it. Ben Wittes has been orchestrating a debate on this topic over at Lawfare (here, here, here, here, here, here, and here).

There are a couple of elements to this. First, the belief by both the right and left that the Administration has already exceeded the terms of the Afghan AUMF by striking at groups that either didn’t exist in 2001 or didn’t support the 9/11 attacks. If we’re right, it would mean such things as drone strikes in Yemen are legally questionable. And for those who believe we must use drones in Yemen and Somalia, it seems clear we must rewrite or expand the AUMF to incorporate these new targets.

In addition, there’s the question of detention. I believe that we are close to sufficiently achieving the objectives in the 2001 AUMF that it might require Obama to base the detention of Gitmo detainees on something more permanent. McKeon would like to institutionalize Obama’s preferred indefinite detention, but by endorsing detention going forward, might invite further indefinite detention.

There are probably some other things our government is doing under the guise of war that we don’t know about (but that McKeon presumably does and endorses).

But for the moment, let’s assume that the forever whereever war authorizes the President to continue to make up the rules of this war as he goes forward, with no defined end point.

And, as Adam Serwer implies, McKeon is doing this not via free-standing statute (which is what he first tried), but on the spending bill, making it much harder to oppose.

But the country never made that decision–the country made the decision to go to war against the perpetrators of the 9/11 attacks. That’s why I think that this new AUMF shouldn’t be something that gets tucked into a spending bill–it’s the kind of thing that the American people need to consider carefully. I suspect public opinion is probably on McKeon’s side here, but at the very least, a separate vote on a new AUMF would have the advantage of sanctioning this larger conflict in a more public and accountable manner. More importantly, we could be having a conversation of what the end of the “war on terror” is supposed to look like.

This is, in other words, the head of the House Armed Services Committee acting where he has greatest powers, in mapping out how DOD can spend money, to institutionalize the authority of the President to evolve the terms of the war against terrorists as he goes on.

PATRIOT without Sunset

At the same time as one corner of Congress is acting at the area of its strength, another corner of Congress is acting with typical cowardice. John Boehner, Mitch McConnell, and Harry Reid are pushing a vote on Monday to extend the PATRIOT Act another 4 years, until June 1, 2015.

Mind you, it might not be just their idea. This is the kind of thing Obama might encourage (though the Administration reportedly backed some, but not all, reforms on the table). This is a way for everyone involved–except for the liberals and handful of TeaParty candidates who will oppose the bill–to just endorse the status quo rather than acknowledge that PATRIOT has some real problems as well as some unnecessary authorities.

And so, with each new extension of a PATRIOT sunset, the myth that it actually will ever sunset gets weaker and weaker.

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Obama’s Middle East Speech: Applause Lines for Democracy

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Obama gave an inspirational speech advocating for change in MENA–“Prosperity also requires tearing down walls that stand in the way of progress – the corruption of elites who steal from their people”–that I wish he’d advocate in the US. And after comparing the uprisings in the Middle East to the Civil Rights movement, I found this line particularly powerful:

I would not be standing here today unless past generations turned to the moral force of non-violence as a way to perfect our union.

In addition, there were some key points of utter contradiction, as in this passage:

As for security, every state has the right to self-defense, and Israel must be able to defend itself – by itself – against any threat. Provisions must also be robust enough to prevent a resurgence of terrorism; to stop the infiltration of weapons; and to provide effective border security. The full and phased withdrawal of Israeli military forces should be coordinated with the assumption of Palestinian security responsibility in a sovereign, non-militarized state. [my emphasis]

But I was most intrigued by two subtle details of the delivery of the speech.

First, the audience watching the speech (which I believe was made up of State Department employees, but I’m trying to clarify) clapped just twice before the end of the speech. First, after Obama said this line:

The United States opposes the use of violence and repression against the people of the region.

And after Obama finished this passage:

Bahrain is a long-standing partner, and we are committed to its security. We recognize that Iran has tried to take advantage of the turmoil there, and that the Bahraini government has a legitimate interest in the rule of law. Nevertheless, we have insisted publically and privately that mass arrests and brute force are at odds with the universal rights of Bahrain’s citizens, and will not make legitimate calls for reform go away. The only way forward is for the government and opposition to engage in a dialogue, and you can’t have a real dialogue when parts of the peaceful opposition are in jail.

This was an audience that gave Obama just two key punctuation marks, pushing the US further for its support of this democracy movement, and very specifically on Bahrain, the place where our engagement has been most hypocritical.

Which also brings us to the other most interesting detail, IMO, about the delivery of the speech. Keep in mind this speech was late, reportedly because of some last minute changes.

Now, before he reached the section on Bahrain, Obama had mentioned just about every other uprising in the region: Tunisia, Libya, Egypt, Syria, Yemen, and even Iran. Several of us on Twitter were discussing whether he’d even mention Bahrain, where the Saudis are assisting the government in brutally repressing a largely Shiite uprising.

Which is why it’s interesting that Obama stumbled on the beginning words of this passage. This is an observation that @krmaher made too, on Twitter, suggesting that perhaps the stumble meant he hadn’t rehearsed this part of the speech. It’s a good point: did Obama stumble, just this once in the entire speech (it’s not something Obama does often anyway), because he changed the speech at the last minute to push for change in Bahrain, too? Or because he realized that supporting change in Bahrain, even as the Saudis try to turn it into a proxy war against Iran, was going to be the hardest thing to deliver?

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