Joshua Rovner has a thoughtful post up at The National Interest‘s The Skeptics today, and it reminded me to plug Josh’s book, and the event that we are hosting with him, Paul Pillar, and Mark Lowenthal on Monday, October 31st. It should be a terrific discussion. Details here.

Rovner’s blog post fits directly with the themes addressed in the book, but it also touches on something that I wrote about several months ago: would the appointment of David Petraeus as CIA Director subtly affect the agency’s assessment of progress—or lack thereof—in Afghanistan? Josh nicely summarizes the relevant concerns as Petraeus prepared to assume his new duties:

Petraeus was the public champion of the counterinsurgency doctrine that he claimed was necessary to defeat the Taliban and deliver stability to Afghanistan. How could he protect the objectivity of CIA analyses when he had such an obvious conflict of interest? Would he faithfully transmit analysts’ conclusions to policymakers, even if they implicitly criticized his approach to the war?

Petraeus addressed these concerns during his Senate confirmation hearings in June. “My goal has always been to ‘speak truth to power,’” he said, “and I will strive to do that as Director of the CIA.”

Rovner then explains what happened next, beginning last Thursday with Kim Dozier’s story for the AP that described a change in CIA analysis of Afghanistan that incorporated more information from military commanders on the ground. Citing a senior intelligence official, the story explained that ”Critics of the change say allowing the military more pushback will have a chilling effect on the analysts’ ability to give the war a failing grade.” Another “intelligence official expressed concern that this would institutionalize the former general’s habit when in Afghanistan of challenging the CIA’s unflattering conclusions.”

CIA officials denounced the report the following day, and Petraeus responded with a memorandum to all CIA employees on the AP story which, he said, “presents an inaccurate picture of my thoughts on the CIA’s Afghanistan analysis.” The change was made before Petraeus assumed duties as director, the memo explains, and it “will in no way undermine the objectivity of DI analysis on the war in Afghanistan. We will still ‘call it like we see it,’ but now with even better ground truth.”

The original story, and the CIA and Petraeus’s responses to it, have an air of “he said, she said” about them. Perhaps this was an honest attempt to improve the quality of intelligence from Afghanistan? Perhaps it was intended to shape the outcome in a more positive direction? Who knows? Rovner hones in on the essential question:

Take Petraeus at his word, accept his promises that he will not let vested interests affect his management decisions, and assume that the shift in the assessment process is not an attempt to manipulate intelligence. Is it still a good idea?

There is obvious value in incorporating military views into intelligence products. Field commanders can offer uniquely detailed views on the nature of the conflict. Continued fighting allows them to monitor enemy tactics as well as changes in the enemy’s level of effort. Their interaction with civilians also allows them to gauge public sentiment, at least at the local level. Done well, military assessments can paint a vivid portrait of the overall course of the war.

But assessments are not always done well. One reason is that they are inherently narrow. This is not to criticize: troops operating in a small area inevitably see the war through a soda straw. Nonetheless, they might conclude that trends in their own area are representative of larger trends throughout the country. Avoiding this problem requires methodical efforts to aggregate micro-level military perspectives into macro-level analyses while remaining cognizant of the serious analytical dangers involved.

Rovner concludes:

Accurate and timely intelligence will be critical as the Obama administration reconsiders what kinds of political outcomes are possible with a stripped-down force in Afghanistan. Integrating military views might lead to more comprehensive CIA assessments, but it might lead to more confusion if bad metrics are included for the sake of keeping estimates current. Hopefully the dust-up over the AP report will remind CIA officials to remain on guard against politicization, and to make sure that the changes in the assessment process do not lead to false optimism.

Read the whole thing here. And register for the event here.

Rovner on the CIA and Afghanistan is a post from Cato @ Liberty - Cato Institute Blog

Today in Politico I have an op-ed titled “How Washington changed Obama.” In the piece, I argue that the recent appointments of Leon Panetta as secretary of defense and Gen. David Petraeus as director of the CIA, combined with revelations in the recent New Yorker article by Ryan Lizza, suggest that President Obama has given up on changing U.S. foreign and defense policy:

Panetta is a dubious choice to fulfill Obama’s recent pledge to trim military spending. Any secretary charged with realizing that pledge would need extraordinary credibility with Capitol Hill Republicans, many of whom are determined to continue raining money on the Pentagon regardless of the nation’s parlous fiscal position. Despite having once been a Republican, Panetta ran for Congress as Democrat and has served prominently in Democratic administrations. He is unlikely to craft the pragmatic consensus needed to give the Pentagon a haircut.

Petraeus’s nomination poses a different problem. He has spent the past decade focused— at the behest of his commanders in chief —  on what we used to call the “global war on terrorism.” But is U.S. nation-building in the Muslim world the most important national security and intelligence problem we face today?

[…]

The U.S. desperately needs to change its focus. We account for roughly half the world’s military spending, yet we feel terribly insecure. We infantilize our allies so that they won’t pay to defend themselves and instead allow us to do it for them. We stumble into small- and medium-sized foreign quagmires the way many people eat breakfast — frequently and without much thought.

Read the rest of the op-ed here.

Cross-posted at The National Interest.

Has President Obama Given up on Changing U.S. Foreign Policy? is a post from Cato @ Liberty - Cato Institute Blog

There is good news and bad news about the report that the Obama administration authorized CIA teams to go into Libya to liaise with the Libyan opposition before instituting a no-fly zone over that country. (The phrase “sneakers on the ground” has emerged in response to the administration’s firm insistence that there are no US boots on the ground there.)

Get the map out

The good news is that the administration, despite prior appearances, does indeed have a strategy in Libya: siding with the rebels in their effort to depose Muammar Qaddafi. The bad news is that siding with the rebels in their effort to depose Muammar Qaddafi is not a good strategy.

It is probably important to make clear at the outset that I do not mean to overstate the stakes here. I am not suggesting that the Libya intervention necessarily will produce a Vietnam or Iraq-scale blunder. And it is always possible that Col. Qaddafi will be deposed swiftly and a reasonably orderly transition to a reasonably decent replacement will take place.

But I would not bet on it.

Why not? For one, the Director of National Intelligence James Clapper yesterday described the opposition itself as a “pick-up basketball team.” This, to my ear, does not sound like a group of people prepared for modern governance of a national state.There also have been somewhat murky reports that jihadists, if not inner-circle al Qaeda types, number among the opposition with whom we are siding. It is probably worth noting that Paul Wolfowitz, a vocal advocate of throwing our lot in with the Libyan opposition, responded to a question (at 56:50 of the video here) whether he could name the leaders of the opposition by admitting that he could not, advising instead that “you can Google and find out.” We just don’t know these people terribly well.

In addition, it is far from clear that the pick-up basketball team can win. A “senior U.S. intelligence official” yesterday reported that Qaddafi’s people have rather rapidly adapted to the no-fly zone:

Gadhafi’s forces have adopted a new tactic in light of the pounding that airstrikes have given their tanks and armored vehicles, a senior U.S. intelligence official said. They’ve left some of those weapons behind in favor of a “gaggle” of “battle wagons”: minivans, sedans and sport-utility vehicles fitted with weapons, said the official, who spoke anonymously in order to discuss sensitive U.S. intelligence on the condition and capabilities of rebel and regime forces. Rebel fighters also said Gadhafi’s troops were increasingly using civilian vehicles in battle.

The change not only makes it harder to distinguish Gadhafi’s forces from the rebels, it also requires less logistical support, the official said.

This seemed to me a blazingly obvious approach for Qaddafi to take, given that were he to move his armor or artillery, it would almost certainly become a target for the coalition, but it would be much harder to detect small groups of men armed with small arms. You fight with what you can use.

All of this seems to mitigate in favor of the government, but it should be pointed out that the unsophisticated, poorly led, and poorly armed rebels have some notable advantages as well. A reasonably unsophisticated force in Afghanistan currently has the modern world’s mightiest military power bogged down in that country with only limited organization, arms, and leadership of their own. From a defensive standpoint, a few thousand men with small arms who are willing to fight and die can cause a big headache for counterinsurgents, particularly were Qaddafi to attempt to retake Benghazi with these men he’s shipping eastward.

Secretary Gates was right to say that there is no vital U.S. interest at stake in Libya over the weekend, and he is right to threaten to quit if the administration moves to insert U.S. ground forces. It wasn’t worth war to get rid of Muammar Qaddafi two months ago, and it isn’t worth war today.

The Good News and Bad News about ‘Sneakers on the Ground’ is a post from Cato @ Liberty - Cato Institute Blog

That’s what the attorney for former CIA officer Jose Rodriguez is saying about his client. Rodriguez and other CIA personnel destroyed videotapes of detainee interrogations. The Justice Department announced that Rodriguez will not face criminal charges, but did not elaborate on the reasoning behind the decision.

Rodriguez’s decision to get rid of the tapes came after White House lawyers, responding to a court order, instructed the CIA not to destroy any evidence associated with detainee interrogations.

I know that the term “slippery slope” is overused, but it’s clearly evident here. Thwart the rule of law by declaring torture legal, thwart it again to cover up your actions.

Destroying Evidence = American Hero is a post from Cato @ Liberty - Cato Institute Blog

From this week’s Washington Post:

Afghanistan’s Central Bank has taken control of the country’s biggest and most politically potent private bank and ordered its chairman to hand over $160 million worth of luxury villas and other real estate purchased in Dubai for well-connected insiders, according to Afghan bankers and officials.

Farther down the page the article continues:

Kabul Bank previously had been shielded by the political clout of its shareholders who, in addition to Mahmoud Karzai [President Hamid Karzai’s brother, who partly owns Kabul Bank], include Haseen Fahim, the brother of Vice President Mohammed Fahim.

If this hostile takeover wasn’t questionable enough, the article goes on to report:

Kabul Bank’s biggest creditor, bank insiders said, is Haseen Fahim, a minority shareholder, who borrowed tens of millions of dollars to fund various business ventures, which in turn won contracts at U.S. bases and sites in Afghanistan operated by the CIA.

So, in an effort to stamp out corruption, which U.S. officials have prodded Afghanistan’s President Hamid Karzai to do, he orders his Central Bank to take managing control of the country’s largest private bank, which, I might add, “also contributed to President Karzai’s reelection campaign last year.”

At the risk of oversimplifying, the above-cited transaction sounds like a stark lesson in crony capitalism: an allegedly capitalist economy based on close relationships between politically connected business figures and the state. This U.S.-led nation-building charade in Afghanistan sounds eerily reminiscent of the state-controlled corruption surrounding Afghanistan’s mineral mining laws:

“Article 4: Ownership of Minerals

(1) All naturally occurring Minerals and all Artificial Deposits of Minerals on surface or subsurface of the territory of Afghanistan or in its water courses (rivers and streams) are the exclusive property of the State.”

Well, it’s nice to see that we are exporting our system around the world!

Lessons in Crony Capitalism is a post from Cato @ Liberty - Cato Institute Blog

Glenn Greenwald has a good post about Arrar v. Ashcroft, an appeals court ruling that came down the other day.  Here’s an excerpt:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” – despite his pleas that he would be tortured — to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I’ve appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.

Read the whole thing.   Also, the ACLU has put together a short film about the experiences of some prisoners released from Guantanamo.

Greenwald on the Arrar Ruling is a post from Cato @ Liberty - Cato Institute Blog

The Hill‘s Congress blog has a regular series that provides policy experts a forum to discuss current topics of the day. This week, the editors posed this question:

President Obama has taken a very different approach to diplomacy than President Bush. Does the new approach serve or undermine long-term U.S. interests?

My response:

What “very different approach?” Sure, President Bush implicitly scorned diplomacy in favor of toughness, particularly in his first term. But he sought UN Security Council authorization for tougher measures against Iraq; a truly unilateral approach would have bombed first and asked questions later. By the same token, President Obama has staffed his administration with people, including chief diplomat Hillary Clinton and UN Ambassador Susan Rice, who favored military action against Iraq and Serbia in 1998 and 1999, respectively, and were undeterred by the UNSC’s refusal to endorse either intervention.

There are other similarities. George Bush advocated multilateral diplomacy with North Korea, despite his stated antipathy for Kim Jong Il. President Obama supports continued negotiations with the same odious regime that starves its own people. Bush administration officials met with the Iranians to discuss post-Taliban Afghanistan and post-Saddam Iraq. In the second term, President Bush even agreed in principle to high-level talks on Iran’s nuclear program. President Obama likewise believes that the United States and Iran have a number of common interests, and he favors diplomacy over confrontation.

This continuity shouldn’t surprise us. Both men operate within a political environment that equates diplomacy with appeasement, without most people really understanding what either word means. Defined properly, diplomacy is synonymous with relations between states. As successive generations have learned the high costs and dubious benefits of that other form of international relations — war — most responsible leaders are rightly eager to engage in diplomacy. Perhaps the greater concern is that they feel the need to call it something else.

Bush v. Obama on Diplomacy is a post from Cato @ Liberty - Cato Institute Blog

Columbia University IR guru Robert Jervis has a smart post at Foreign Policy’s “Af-Pak” blog.  For those who couldn’t get enough at yesterday’s Cato forum on Afghanistan, Jervis’ post is well worth a look:

Prof. Robert Jervis

Most discussion about Afghanistan has concentrated on whether and how we can defeat the Taliban. Less attention has been paid to the probable consequences of a withdrawal without winning, an option toward which I incline. What is most striking is not that what I take to be the majority view is wrong, but that it has not been adequately defended. This is especially important because the U.S. has embarked on a war that will require great effort with prospects that are uncertain at best. Furthermore, it appears that Obama’s commitment to Afghanistan was less the product of careful analysis than of the political need to find a “tough” pair to his attacks on the war in Iraq during the presidential campaign. It similarly appears that in the months since his election he has devoted much more attention to how to wage the war than to whether we need to wage it.

The claim that this is a “necessary war” invokes two main claims and one subsidiary one. The strongest argument is that we have to fight them there so that we don’t have to fight them here. The fact that Bush said this about Iraq does not make it wrong, and as in Iraq, it matters what we mean by “them.”…

[...]

The second part of the question is exactly what withdrawal means. What would we keep in the region? What could we achieve by airpower? How much intelligence would we lose, and are there ways to minimize this loss? It is often said that we withdrew before 9/11 and it didn’t work. True, but the circumstances have changed so much that I don’t find this history dispositive. While al Qaeda resurgence is a real danger, I am struck by the thinness of the argument that in order to combat it we have to fight the Taliban and try to bring peace if not democracy to Afghanistan.

A second argument, made most recently by Frederick Kagan in the September 5-6 Wall Street Journal, is that, to quote from its headline, “A stable Pakistan needs a stable Afghanistan.” But does it really? Are there reasonable prospects for a stable Afghanistan over the next decade no matter what we do? Isn’t there a good argument that part of the problem in Pakistan stems from our continued presence in Afghanistan?

[...]

A third but subsidiary argument is that withdrawal would undermine American credibility around the world. Again, the fact that this is an echo of Vietnam does not make it wrong, but it does seem to me much less plausible than the other arguments. Who exactly is going to lose faith in us, and what are they going to do differently? Much could depend on the course of events in other countries, especially Iraq, which could yet descend into civil war. But if it does, would American appear more resolute — and wiser — for fighting in Afghanistan? Of course if we withdraw and then we or our allies suffer a major terrorist attack many people will blame Obama, and this is a political argument that must weigh more heavily with the White House than it does with policy analysts…

As I hope my ellipses make clear, Jervis’ post is well worth a read.

Jervis on Afghanistan is a post from Cato @ Liberty - Cato Institute Blog

• Obama spoke on Wall Street today about increasing regulation of the American financial system. But did deregulation really cause the financial crisis?

• Burnt rubber: Obama’s decision to slap a 35 percent tariff on Chinese tires whiffs of senseless protectionism.

• According to the Economic Freedom in the World report, the U.S. was ranked the second-freest economy in 2000. It has fallen to 6th place this year.

• A bold exit strategy for Afghanistan.

• The economics of health care reform.

• Why it’s time for the U.S. to start doing less abroad.

• Podcast: China’s economy is on track to be larger than the U.S. economy in a few years. Trade expert Dan Griswold says, “So what?”

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

I was never a fan of Dick Cheney’s one percent doctrine.

According to Ron Suskind, after 9/11 Cheney explained to law enforcement and intelligence officials that they should treat even the one percent chance of a terrorist attack as a mathematical certainty. The particular case was of a Pakistani nuclear scientist helping al-Qaeda to acquire a nuclear bomb, but the standard became a shorthand for U.S. counterterror efforts generally. No scale of effort would be too great. Better to chase down 100 leads, 99 of which turn out to be bogus, because finding just that one nugget would have been worth the level of effort.

Now we have evidence that the federal government is chasing down far more than 99 blind alleys for just one lead. From today’s front-page story in the New York Times, Eric Schmitt explains how the FBI has adapted and evolved since 9/11:

The bureau now ranks fighting terrorism as its No. 1 priority. It has doubled the number of agents assigned to counterterrorism duties to roughly 5,000 people, and has created new squads across the country that focus more on deterring and disrupting terrorism than on solving crimes.

But the manpower costs of this focus are steep, and the benefits not always clear. Of the 5,500 leads that the squad has pursued since it was formed five years ago, only 5 percent have been found credible enough to be sent to permanent F.B.I. squads for longer-term investigations, said Supervisory Special Agent Kristen von KleinSmid, head of the squad. Only a handful of those cases have resulted in criminal prosecutions or other law enforcement action, and none have foiled a specific terrorist plot, the authorities acknowledge. (Emphasis mine.)

So, just to review:

• 5,500 leads over 5 years
• 5 percent deemed credible
• “A handful” technically would mean five or less, but charitably might total a few dozen. Still, that translates to far less than 1 percent of leads investigated resulting in a criminal prosecution.

But, and here’s the kicker,

• None – zero, zip, nada – foiled a specific terrorist plot.

On the face of it, this seems like a waste of time and resources that should be spent elsewhere.

There are several plausible explanations, however, for why I’m wrong and why those who believe that we are not dedicating sufficient resources to combating terrorism are right.

• Perhaps other government agencies have been far more effective at disrupting terror plots. (But when the relative comparison is zero, it isn’t very hard to clear that bar.)
• Perhaps Schmitt got his facts wrong. (Doubtful. He is one of the most experienced and reliable reporters on the beat.)
• Perhaps the knowledge that 5,000 people chasing down 5,500 leads deters would-be terrorists from even attempting anything. (Or it could simply be helping bin Laden’s plan “to make America bleed profusely to the point of bankruptcy.”)

Two other points bear consideration. First, it is possible that arresting, prosecuting and convicting people of lesser crimes disrupts what might someday become a full-scale terror plot. There is no reason to think that the guy trying to cut down the Brooklyn Bridge with a blowtorch was much smarter than the 15 guys who provided the muscle for the 9/11 attacks. The difference was leadership, which defined a plausible terrorist attack and devised the means to carry it out. That said, there are problems associated with the expansion of federal laws, and the growing power of prosecutors, and I would still much prefer that common criminals be handled in a run-of-the-mill fashion. Local cops, local prosecutors, local jails.

Which leads to the second point. Reflecting the growing federalization of the criminal law, the FBI strayed into a number of areas even before 9/11 that should have been handled by local law enforcement. This expansion of the federal criminal law poses a threat to individual liberty. (Thanks to Tim Lynch for pointing to this source.) But counterterrorism is one of the few legitimate functions for a federal law enforcement agency, and if the FBI is devoting more resources to that than to other crimes, that in and of itself wouldn’t be a bad thing.

I remain unconvinced, however, that what we are seeing is a wise expenditure of resources. And while I understand that zero terrorist plots uncovered is not equal to zero threat of a future attack, it is incumbent on the FBI — and more generally those who think that the problem is too little, as opposed to much, being devoted to counterterrorism – to prove why they need still more resources.

Until that occurs, I think that UCLA’s Amy Zegart, who is quoted in the Times story, should get the last word on this point:

Just chasing leads burns through resources. … You’re really going to get bang for the buck when you chase leads based on a deeper assessment of who threatens us, their capabilities and indicators of impending attack. Right now, there’s more chasing than assessing.

The Zero Percent Doctrine is a post from Cato @ Liberty - Cato Institute Blog

I listened live to the president’s Cairo speech this morning on my ride into work. I know that it will be parsed and dissected. Passages will be taken out of context, and sentences twisted beyond recognition. At times, it sounded like a state of the union address, with a litany of promises intended to appeal to particular interest groups.

That said, I thought the president hit the essential points without overpromising. He did not ignore that which divides the United States from the world at large, and many Muslims in particular, nor was he afraid to address squarely the lies and distortions — including the implication that 9/11 never happened, or was not the product of al Qaeda — that have made the situation worse than it should be. He stressed the common interests that should draw people to support U.S. policies rather than oppose them: these include our opposition to the use of violence against innocents; our support for democracy and self-government; and our hostility toward racial, ethnic or religious intolerance. All good.

Two particular comments jumped out at me (the speech text can be found here):

1. The president clearly stated his goals for the U.S. military presence in Iraq. He pledged to “honor our agreement with Iraq’s democratically-elected government to remove combat troops from Iraqi cities by July,” “the removal of our combat brigades by next August,” and “to remove all our troops from Iraq by 2012.”

This might not seem like much. As noted, it is the established policy of the U.S. government and the Iraqi government under the status of forces agreement. Some recent comments by Army Chief of Staff Gen. George Casey, however, implied that U.S. troops might remain in Iraq for a decade. I’m glad that the president cleared up the confusion.

2. President Obama wisely connected U.S. policy in the 21st century to its founding principles from the earliest days to remind his audience — or perhaps to teach them for the very first time — that the United States was not now, nor ever has been, at war with Islam, or with any other religion. George Washington affirmed the importance of religious equality in his letter to the Hebrew Congregation in Newport, Rhode Island. President Obama quoted John Adams, who saw no reason why the United States could not enjoy good relations with Morocco, the first country to recognize the United States. When signing the Treaty of Tripoli, Adams wrote, “The United States has in itself no character of enmity against the laws, religion or tranquility of Muslims.”

But the president also drew on the Founders to convey a broader message. They believed that the new nation should advance human rights and the cause of liberty by its example, not by military force. Some of our recent leaders seem to have forgotten that, and a few pundits have actually scorned the suggestion. The president wisely cast his lot with the earlier generation, quoting Thomas Jefferson who said “I hope that our wisdom will grow with our power, and teach us that the less we use our power the greater it will be.”

It is a good quote. I use it in my book, too.

Some Early Thoughts on Obama’s Speech is a post from Cato @ Liberty - Cato Institute Blog

In case you missed it, President Obama and former Vice President Dick Cheney spoke separately today on terrorism and national security. Like two boxers at a pre-fight press conference, they each touted their strength over their opponent. They espoused deep differences in their views on national counterterrorism strategy.

The Thrilla in Manilla it ain’t. As Gene Healy has pointed out, they agree on a lot more than they admit to. Harvard Law professor and former Bush Office of Legal Counsel head Jack Goldsmith makes the same point at the New Republic. Glenn Greenwald made a similar observation.

However, the areas where they differ are important: torture, closing Guantanamo, criminal prosecution, and messaging. In these key areas, Obama edges out Cheney.

Torture

Cheney:

I was and remain a strong proponent of our enhanced interrogation program. The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do.

Obama:

I reject the assertion that these are the most effective means of interrogation. What’s more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured.

Torture is incompatible with our values and our national security interests. When we break our own rules (read: laws) against torture, we erode everyone’s faith that America is the good guy in this global fight.

Torture has been embraced by politicians, but the people who are fighting terrorists on the ground want none of it. As former FBI agent Ali Soufan made clear in Senate hearings last week, it is not an effective interrogation technique. Senior military leaders such as General Petraeus, former CENTCOM commanders Joseph Hoar and Anthony Zinni, and former Commandant of the Marine Corps Charles Krulak all denounce the use of torture.

If we captured Al Qaeda operatives who had tortured one of our soldiers in pursuit of information, we would be prosecuting them. Torture is no different and no more justifiable because we are doing it.

Closing Guantanamo

Cheney:

I think the President will find, upon reflection, that to bring the worst of the worst terrorists inside the United States would be cause for great danger and regret in the years to come.

Obama:

[I]nstead of serving as a tool to counter-terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

This is an area where Cheney is disagreeing not just with Obama but with John McCain. We would be having this debate regardless of who won the last Presidential election. Get over it.

The current political climate gives you the impression that we are going to let detainees loose in the Midwest with bus fare and a gift certificate for a free gun at the local sporting goods store. Let’s be realistic about this.

We held hundreds of thousands of prisoners of war in America during World War II. The detainees we have now are not ten feet tall and bulletproof, and federal supermax prisons hold the same perfect record of keeping prisoners inside their walls as the detainment facility in Guantanamo Bay.

Criminal Prosecution

Obama basically said that we will try those we can, release those who we believe pose no future threat, and detain those that fit in neither of the first two categories. That’s not a change in policy and that pesky third category isn’t going away.

Obama and Cheney do have some sharp differences as to the reach of war powers versus criminal prosecution.

Cheney:

And when you hear that there are no more, quote, “enemy combatants,” as there were back in the days of that scary war on terror, at first that sounds like progress. The only problem is that the phrase is gone, but the same assortment of killers and would-be mass murderers are still there.

Obama:

Recently, we prosecuted and received a guilty plea from a detainee – al-Marri – in federal court after years of legal confusion. We are preparing to transfer another detainee to the Southern District of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania – bombings that killed over 200 people.

I have written extensively on al-Marri, the last person to be detained domestically as an enemy combatant. The FBI did everything right when it investigated and indicted this Al Qaeda sleeper agent masquerading as an exchange student, only to have the Bush administration remove those charges in order to preserve the possibility of detaining domestic criminals under wartime powers. This claim of governmental power is a perversion of executive authority that Obama was right to repudiate.

The man being indicted in New York is Ahmed Gailani. If he is convicted for his role in the bombing of American embassies in Kenya and Tanzania, he will join his co-conspirators Wadih El-Hage, Mohammed Odeh, Mohammed al-Owhali, and Khalfan Mohammed in a supermax.

This is also where we hold 1993 World Trade Center bombers Ramzi Yousef, Sheikh Omar Abdel Rahman (the “Blind Sheikh”), Mohammed Salameh, Sayyid Nosair, Mahmud Abouhalima, and Ahmed Ajaj.

Not to mention would-be trans-pacific airline bombers Wali Khan Amin Shah and Abdul Hakim Murad.

Al Qaeda operatives Mohammed Jabarah, Jose Padilla, and Abu Ali will share his mailing address.

Let’s not forget American Taliban Johnny Walker Lindh, Shoe Bomber Richard Reid, Al Qaeda and Hamas financier Mohammed Ali Hassan Al-Moayad, Oregon terrorist training camp organizer Ernest James Ujaama, and would-be Millenium Bomber Ahmed Ressam.

That’s a lot of bad guys. It’s almost like we’re checking names off a list or something.

Messaging

Cheney:

Behind the overwrought reaction to enhanced interrogations is a broader misconception about the threats that still face our country. You can sense the problem in the emergence of euphemisms that strive to put an imaginary distance between the American people and the terrorist enemy. Apparently using the term “war” where terrorists are concerned is starting to feel a bit dated.

Obama: no quote is necessary here. The differences in narrative between Obama and Cheney are clear and woven into what Obama says.

Terrorism is about messaging. America finds herself in the unenviable position of fighting an international terrorist group, Al Qaeda, that is trying to convince local insurgents to join its cause. Calling this a “War on Terror” can create a war on everybody if we use large-scale military solutions for intelligence, law enforcement, and diplomatic problems.

We have to tie every use of force or governmental power to a message: drop leaflets whenever we drop a bomb, hold a press conference whenever we conduct a raid, and publish a court decision whenever we detain someone. Giving the enemy the initiative in messaging gives them the initiative in the big picture.

Conclusion

Once we get past the rhetoric, the differences are few but worth noting. I take Obama in the third round by TKO.

Cheney vs. Obama: Tale of the Tape is a post from Cato @ Liberty - Cato Institute Blog

Doug Bandow aptly finds the debate about Guantanamo detainees surreal. For my part, I see it as an exhibition of politicians put “on tilt” — and unwittingly executing the terrorism strategy.

The leadership of both parties appears not to understand that terrorism is designed to elicit self-injurious overreaction. Fear-mongering is a cog in the overreaction machine.

If they did understand this, they would see it as both a civic duty and politically rewarding leadership to exhibit bravery. Messages of indomitability and calm are the appropriate strategic response to terrorism.

Instead, what we have is a bidding war about who can be the most fearful of Guantanamo detainees — a group that is well under control itself and whose transportation and housing in U.S. prisons is entirely manageable.

Both parties are playing to a “base” of caterwauling Islamophobes while the bulk of the American public looks on bewildered and disappointed. Meanwhile, people around the world see that terrorism is a great way to express opposition to U.S. power and U.S. policies. Oops.

Politicians in Thrall to Terrorism is a post from Cato @ Liberty - Cato Institute Blog

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses.  Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right.  The primary issue is not due process.  The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.

Obama’s Military Commissions is a post from Cato @ Liberty - Cato Institute Blog

Almost a year has passed since the Supreme Court’s decision to extend habeas rights to Guantanamo in Boumediene. Detention policy is currently under review by interagency task forces; it is worth looking at what the developing body of detention rulings say about the future of detention.

Taking prisoners is an unavoidable part of military action. Telling our troops that they can engage identified enemies with lethal force but cannot detain them puts them in an impossible position.

But who can we hold? The Taliban foot soldier is an easy case, but as we move away from the battlefield things get a little fuzzy. A chronological review of the decisions regarding detainee status gives some insight.

Salim Hamdan

The first case comes from the military commissions convened in Guantanamo. Though it predates Boumediene, it puts the question of who is an unlawful enemy combatant in front of a judge.

Salim Hamdan was the petitioner in the Supreme Court case that invalidated military commissions established by executive order. Congress responded to his victory at the Supreme Court with the Military Commissions Act (MCA) to establish legislatively-sanctioned commissions, but their jurisdiction is limited to “alien unlawful enemy combatants.”

Following the passage of the MCA, Hamdan’s defense counsel filed a motion for an additional hearing to determine whether he was a lawful or unlawful combatant. If he was a lawful combatant, then the commission would lack jurisdiction and he might then be prosecuted in a court-martial. Lawful combatants (i) have a commander, (ii) wear uniforms or a distinctive symbol, (iii) bear their arms openly, and (iv) follow the laws of land warfare.

Captain Allred, the officer presiding, granted the defense motion.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia.

Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Decisions Under the Enemy Combatant Definition

Following Boumediene, detainees have had their cases heard by federal judges. The District Court for the District of Columbia adopted and applied the following definition, and the government need only prove it by a preponderance of the evidence:

An “enemy combatant” is an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

District Judge Richard J. Leon moved through these cases quicker than his colleagues and gives us several decisions to look at.

Lakhdar Boumediene, et al.: Five ordered released, one detained. This is the set of six petitioners that won the right to habeas corpus hearings at the Supreme Court. They were picked up in Bosnia and allegedly planned to travel to Afghanistan to fight against American forces. Judge Leon ordered five of the six released because the word of an unnamed informant was simply not enough to justify their detention. Since the evidence was insufficient to determine that a plan to travel to Afghanistan existed, Judge Leon did not reach the question of whether such a plan would constitute “support.” Leon found that the sixth man, Belkalem Bansayah, was an enemy combatant based on corroborating sources and evidence that he was adept in using false passports in multiple fake names and was facilitating the travel of others to fight in Afghanistan. This constituted “support” necessary to find him an enemy combatant.

Hisham Sliti: One detained.  Sliti is a Tunisian who traveled from London to Afghanistan on a false passport. He was detained in 2000 by Pakistani authorities because of his false passport and had an address book with contact information for radical extremists. He escaped back into Afghanistan and was later re-captured fleeing the American military in 2001. Judge Leon found that he had traveled to Afghanistan with the financial support of extremists with well-established ties to Al Qaeda, spent time with Al Qaeda-affiliated radicals, stayed at a guesthouse associated with Al Qaeda that served as barracks for terrorist training camps, and that other guests at the house were instrumental in creating terrorist cells. By his own admission, he knew the location, appearance, and code words used by those attending the nearby training camp.

Moath Hamza Ahmed al Alwi: One detained. Al Alwi is a Yemeni who traveled from Saudi Arabia to Afghanistan to fight alongside the Taliban against the Northern Alliance. Judge Leon found that al Alwi could remain in custody based on the evidence that he had trained at Al Qaeda camps, stayed at Al Qaeda guesthouses, fought on two fronts with the Taliban, and did not leave Afghanistan until his Taliban unit was bombed on two or three occasions by American aircraft.

Mohammed el Gharani: One ordered released.  El Gharani is a Saudi who went to Pakistan around 2001. The government alleged that he had been a member of an Al Qaeda cell in London, stayed at an Al Qaeda-affiliated guesthouse, and fought American forces at the battle of Tora Bora. Judge Leon did not find these claims credible, as all of them were based on the word of fellow detainees. The government also alleged that he had been a courier for Al Qaeda, but had insufficient evidence to back up this claim.

In the above cases, six detainees have been ordered released and three met the criteria to be classified as “enemy combatants.”

Transition From “Enemy Combatant” to “Substantial Support”

The Obama administration has since dropped the term “enemy combatant” and changed its claim of detention authority:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The first decision under the new definition came down from District Judge Ellen Huvelle.

Yasin Muhammed Basardh: One ordered released. Basardh is a Yemeni who was arrested in early 2002 and transported to Guantanamo Bay. He cooperated with detention authorities, giving information about his fellow detainees. As a result, other detainees physically assaulted him and threatened to kill him. Judge Huvelle determined that widespread disclosure of Basardh’s cooperation with the government renders his prospects for rejoining terrorists “at best, a remote possibility.”

Judicial Review of the Authority to Detain

The definitions of “enemy combatant” and the power claimed by the Obama administration are very similar, and the addition of “substantially” is probably only going to affect marginal cases.

A recent review of the revised claim of detention power broadly approved the government’s power of detention. District Judge Reggie B. Walton accepted, in a slightly modified form, the general power of the government to detain those who have participated in hostilities. In doing so, he rejected a detainee’s claims that the Authorization for Use of Military Force passed after 9/11 did not allow military detention and that detainees must be tried in a civilian court or released.

Judge Walton adopted the following definition for detention decisions:

[I]n addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.

Judge Walton did limit the government’s detention authority to those part of the “command structure” of Al Qaeda and the Taliban. This precludes detaining “[s]ympathizers, propagandists, and financiers” that may be part of enemy organizations in an abstract sense but who are not part of the organizations’ command structure. Judge Walton also did not resolve the issue of organizations and individuals “associated” with the Taliban and Al Qaeda.

Though Judge Walton rejected the petitioners’ “direct participation in hostilities” standard for detention in favor of the government’s “substantial support” standard, he explicitly authorized detention of an Al Qaeda “member tasked with housing, feeding, or transporting” members of the organization. An Al Qaeda cook who trained at a terrorist camp can be detained just as “his comrade guarding the camp entrance.”

The competing definitions can often arrive at the same conclusion. Captain Allred determined that Salim Hamdan was an unlawful enemy combatant for a combination of the “substantial support” activities under the “direct participation in hostilities” standard.

Conclusion

The cases above illustrate that the general principles of detention have not changed significantly with adjusted definitions. The terms “enemy combatant,” “direct participation in hostilities,” and “substantial support” will be interpreted by judges on a case-by-case basis much like a finding of probable cause to issue a warrant or justify a search.

The Jurisprudence of Detention: Definitions and Cases is a post from Cato @ Liberty - Cato Institute Blog

Cato foreign policy experts weigh in on President Obama’s record in his first 100 days:

Christopher Preble, Director Foreign Policy Studies:

President Obama deserves credit for making a few modest changes in U.S. foreign and defense policy, and he has signaled a desire to make more fundamental shifts in the future. Some of these may prove helpful, while others are likely to encounter problems. In the end, however, so long as the president is unwilling to revisit some of the core assumptions that have guided U.S grand strategy for nearly two decades — chief among these the conceit that the United States is the world’s indispensable nation, and that we must take the lead in resolving all the world’s problems — then he will be unable to effect the broad changes that are truly needed.

Ted Galen Carpenter, Vice President Defense & Foreign Policy Studies; Christopher Preble:

On the plus side, Obama moved quickly to fulfill his most important foreign policy promise: ending the war in Iraq. That said, the policy that his administration will implement is consistent with the agreement that the outgoing Bush administration negotiated with the Iraqis. Given that the war has undermined U.S. security interests, and our continuing presence there is costly and counterproductive, Obama should have proposed to remove U.S. troops on a faster timetable.

Malou Innocent, Foreign Policy Analyst:

The jury is still out on the other major, ongoing military operation, the war in Afghanistan. That mission is directly related to events in neighboring Pakistan, which is serving — and has served — as a safe haven for Taliban supporters for years. President Obama deserves credit for approaching the problem with both countries together, and also in a regional context, which includes Iran, as well as India. Still unknown is the scope and scale of the U.S. commitment. President Obama has approved a nearly 50 percent increase in the number of U.S. military personnel in Afghanistan. Some have suggested that still more troops are needed, and that these additional troop numbers might prevail for 10-15 years. That would be a mistake. The United States should be looking for ways to increase the capacity of both Afghanistan and Pakistan to confront the extremism in their countries, and should not allow either to grow dependent upon U.S. military and financial support.

Christopher Preble and Ted Galen Carpenter:

On Iran, President Obama made the right decision by agreeing to join the P5 + 1 negotiations, but that is only a first step. The two sides are far apart and President Obama has not signaled his intentions if negotiations fail to produce a definitive breakthrough. Sanctions have had a very uneven track record, and are unlikely to succeed in convincing the Iranians to permanently forego uranium enrichment. If the Iranians are intent upon acquiring nuclear weapons, military action would merely delay Iran ’s program, and would serve in the meantime to rally support for an otherwise unpopular clerical regime, and a manifestly incompetent president.

Doug Bandow, Senior Fellow; Christopher Preble:

A related problem is North Korea‘s ongoing nuclear program, an area where the president and his team seem to be grasping for answers. President Obama was mistaken if he believed that that the UN Security Council would render a meaningful response to Pyongyang’s provocative missile launch. It was naive, at best, for him to believe that even a strong rebuke from the UNSC would have altered Kim Jong Il’s behavior. The president must directly engage China, the only country with any significant influence over Kim. The North’s reckless and unpredictable behavior does not serve Beijing’s interests.

Benjamin Friedman, Research Fellow; Christopher Preble:

Obama and Defense Secretary Robert Gates are correct to apply greater scrutiny to bloated Pentagon spending, and to terminating unnecessary weapon systems, but the budget will actually grow slightly, at a time when we should be looking for ways to trim spending. If President Obama decided to avoid Iraq-style occupations, we could cut our ground forces in half. If we stopped planning for near-term war with China or Russia, the Air Force and Navy could be much smaller. Unless we commit to a grand strategy of restraint, and encourage other countries to provide for their own defense, it will be impossible to make the large-scale cuts in military spending that are needed.

Jim Harper, Director of Information Policy Studies; Benjamin Friedman; Christopher Preble:

Two other quick points. President Obama has moved away from some of the overheated rhetoric surrounding counterterrorism and homeland security, including dropping the phrase ‘War on Terror”. This was the right approach. The language surrounding the fight against terrorism is as important — if not more important — than the actual fight itself. Equally useful is his pledge to close the detention facility at Guantanamo Bay and his renunciation of the use of torture and other illegal means in the first against al Qaeda. These steps send an important message to audiences outside of the United States who cooperation is essential.

Ian Vasquez, Director, Center for Global Liberty & Prosperity; Juan Carlos Hidalgo, Project Coordinator for Latin America.

President Obama has signaled a slight change on US-Cuba policy by softening some travel and financial restrictions. It is not as far as we would have liked, but it is a step in the right direction — toward greater engagement, as opposed to more isolation, which was the approach adopted by the Bush administration.

For more research, check out Cato’s foreign policy and national security page.

Obama’s First 100 Days: Mixed Record on Foreign Policy is a post from Cato @ Liberty - Cato Institute Blog

The debate over the Obama administration’s release of the torture memos took an important turn during the past week, as reflected in discussions on the Sunday morning shows.

The economy was the lead story on Fox News Sunday, but in the second segment Chris Wallace led his questioning of Senator Kit Bond (R-MO) as follows:

The Pentagon now says that it’s going to release hundreds of photos of alleged abuse of detainees by U.S. personnel – this, after, of course, the release of the interrogation memos. Senator Bond, how serious is the threat of a backlash in the Middle East and the recruitment of more terrorists, possibly endangering U.S. soldiers in that part of the world?

Revelation! The idea that abusive practices on the part of the United States would draw people to the side of its enemies.

In the media, most of the debate up to now has centered on the tactical question of whether torture works, and to some degree the moral dimension. (Here’s David Rittgers on the former and Chris Preble on the latter.)

There’s an ineluctable conclusion from understanding that torture drives recruitment which endangers our soldiers: It is strategic error to engage in abusive practices. Abuse on the part of the United States adds heads to the hydra.

But wait. Wallace’s question may imply that it is release of the photos – not commission of the underlying offenses – that risks causing a backlash. This cannot be.

Given the governments they’ve long experienced, people in the Muslim and Arab worlds will generally assume the worst from what they know – and assume that even more than what they know is being hidden. Transparency about U.S. abuses cuts against that narrative and confuses the story that the United States is an abuser akin to the governments Arabs and Muslims have known.

Abusive practices create backlash against the United States. Transparency about abuses after the fact will dispel backlash and muddy the terrorist narrative about the United States and its role in the Middle East.

As the question turns to prosecution of wrongdoing by U.S. officials, such as lawyers who warped the law beyond recognition to justify torture, transparent application of the rule of law in this area would further disrupt a terrorist narrative about the United States.

Does Transparency Inspire Terrorism? is a post from Cato @ Liberty - Cato Institute Blog

Over at The Wall Street Journal, Cong. Peter Hoekstra calls for an investigation into “what the Obama administration may be doing to endanger the security our nation has enjoyed because of interrogations and other antiterrorism measures implemented since Sept. 12, 2001.” Hoekstra implies, or at least clearly believes, that Obama’s renunciation of torture has made the country less safe. Rest assured, when the next attack occurs (and there will be another attack), Hoekstra and other supporters of torture will claim vindication, even though they won’t be able to point to direct evidence that torture would have averted the attack. It is equally impossible to prove a negative — why something does not occur — as it is to prove that an action not taken in the past would have prevented something in the present.

Similarly, former Vice President Cheney claims that the use of techniques such as waterboarding, sleep deprivation, stress positions, and cramped confinement enabled the U.S. government to stop future terrorist attacks, and he has asked the Obama administration to declassify the documents that supposedly prove it. Cheney has previously said that President Obama’s renunciation of torture increases the likelihood that future attacks will be successful.

Of course, Cheney has not asked for the declassification of all information obtained by torture. He presumably doesn’t want the American people to know the countless false positives, the fake leads, the purely bogus information offered up by those being tortured in a vain attempt to halt — or merely postpone — their severe discomfort. (Gene Healy documents a few of these in his recent column.)

Nor can Cheney or Hoekstra prove that the few kernels of useful information obtained under torture could only have been acquired under torture, and not by other techniques, techniques that were consistent with our laws, and that we employed in past conflicts. They can’t prove such claims, because they aren’t true.

In the end, however, this is not a question of whether torture works. Appeals to reason fail when people perceive a danger beyond what reason informs. After all, no reasonable person could logically conclude that terrorism poses an existential threat to the Republic, and yet that false belief continues to shape our conduct. We choose not to consider what has worked in the past because we perceive the past to be irrelevant.

That our actions are driven not by logic but by our fears — visceral, instinctual fears — is understandable. Vengeful actions, while not logical, can be justified in certain circumstances. Would the relatives of those killed in Oklahoma City have been justified in publicly stoning Timothy McVeigh? We could have given a rock — or better yet a piece of rubble from the Alfred P. Murah building — to one family member of each of those killed. The parents of the children killed in the day care center might have been handed particularly large chunks of concrete. Or perhaps the families of the 87 people killed in the Happy Land social club should have been allowed to burn alive Julio Gonzalez, the unemployed Cuban refugee who set the fire? And if we handed a machete to Mariane Pearl — or to Adam Daniel, the son Daniel Pearl never knew — and watched them chop off Khalid Sheikh Mohammed’s head, no one would shed a tear. We might even call it justice.

That we do not resort to such tactics is one of the things that separate us from animals.

In the animal kingdom, might makes right. If the lion can catch the antelope, no higher authority can stop it from devouring his prey. No moral code teaches the lion that he should eat grass instead.

A conscience is not the only thing that separates us from the animals. When our moral compass fails us, when we are blinded by rage and a thirst for justice, law brings us back, or merely holds us back, from doing what our basest human instincts tell us is right and proper.

Since 9/11, many people have framed these laws as a mark of our weakness. Our enemies are not bound by any code, so why should we be? Lincoln suspended habeus corpus believing it necessary to save the Union. FDR approved the internment of Japanese-Americans on similar grounds. It doesn’t matter that neither measure was actually instrumental to saving the Republic from destruction; indeed, the evidence shows that they had no such effect. All that matters is that these men acted in good faith.

Thus is the torture debate at the center of our evolving concepts of executive power, with one side saying that the president is not above the law, and the other side saying that a president (and, actually, not just the president, but anyone in the executive branch) is immune from such laws when he or she believes them to be an impediment to his ability to carry out his duties. It isn’t exactly Frost/Nixon, “when the president does it, that means that it is not illegal,” but it’s close enough.

It is not as high as some people might think, but still forty percent of Americans believe that torture is appropriate in certain circumstances, even though it is clearly against the law. Most of these same people presumably don’t believe that other laws — murder, rape, incest, and human slavery, for example — can be circumvented by presidential fiat. But terrorism is different, so the thinking goes, and fighting it requires us to discard troublesome laws.

The reality is exactly the opposite. Because a central object of terrorism is to induce advanced societies to come loose from their ideological moorings, we must strive even harder to adhere to them. Because terrorists attempt to trick or goad a government founded on certain principles to depart, if only for a moment, from those same principles, our leaders must resist the urge to do so.

On these terms, we haven’t been doing a very good job. We have been circumventing our fundamental principles for seven years, and many Americans think that we should — nay that we must — continue doing it…indefinitely.

It is a sad and sickening spectacle. If we continue down this path — if we cannot call torture for what it is, if we cannot restore an ironclad respect for the rule of law, if we cannot claw back some semblance of separation of powers, with a Congress willing to oppose White House power grabs instead of simply enabling them — then the terrorists will have won.

Counterterrorism, Torture, and the Law is a post from Cato @ Liberty - Cato Institute Blog

Michael Hayden went on Fox News Sunday this week, fiercely objecting to the Obama administration’s release of Bush-era memos regarding “enhanced interrogation techniques.” He and three other former CIA directors objected to the release.

That common front might draw the memo release into doubt if it wasn’t a given that CIA directors are always going to defend the interests of the CIA.

Hayden trotted out the tired “war” on terror metaphor. This framing may be exciting to him and his colleagues, but it is strategic error to address terrorism this way, and the American public chose a presidential candidate last November who campaigned to emphasize hope over fear. Intoning about war did not help Hayden’s case.

The heart of his argument was that release of the memos would allow our enemies to train for “enhanced interrogation techniques” and that we would lose the benefits of those techniques. But a telling moment came when he shifted his argument:

There’s another point, too, that I have to make, and it’s just not the tactical effect of this technique or that. It’s the broader effect on CIA officers. I mean, if you’re a current CIA officer today – in fact, I know this has happened at the agency after the release of these documents – officers are saying, “The things I’m doing now – will this happen to me in five years because of the things I am doing now?”

Moving from tactical considerations to the “broader effect,” Hayden spoke of how the memo release would chill CIA activity. That’s not irrelevant, but it’s not the broader effect that matters: the strategic effect of using torture in counterterrorism activity. Like the myopic critic I wrote about in my post last week, Hayden is not focused on countering the strategic logic of terrorism, but on defending the interests of the agency he headed.

Chris Wallace showed a brief clip of White House press secretary Robert Gibbs criticizing “enhanced interrogation techniques” on a strategic level: “It is the use of those techniques . . . in the view of the world that [has] made us less safe.” Being a secretive torturer drives allies away from the United States.

Hayden didn’t get it, answering, “Most of the people who oppose these techniques want to be able to say, ‘I don’t want my nation doing this,’ which is a purely honorable position, ‘and they didn’t work anyway.’ That back half of the sentence isn’t true.”

Against the argument that the use of torture is strategic error, Hayden responded, “But it works!” Arguing its tactical utility does not meet the strategic case against torture.

And Hayden was well back on his heels when asked whether Khalid Sheikh Mohammed was waterboarded 183 times in one month.

Hayden is a fierce defender of the CIA. The CIA provides some elements of the nation’s security. But the CIA is not the nation’s security.

The CIA Is Not the Nation’s Security is a post from Cato @ Liberty - Cato Institute Blog

In response to President Obama’s video message to the Iranian people this morning, Iranian presidential aide Aliakbar Javanfekr is quoted as saying, “The Obama administration so far has just talked. By words and talking the … problems between Iran and America cannot be solved.”

I wish we knew the reaction of Khamene’i, but I do find myself fearing that the CIA may continue its major covert operations to undermine Tehran’s clerical regime. The administration has yet to repudiate this official policy. If Obama decides to repeal it, and dialogue with Iran falls through, Bush administration officials will trumpet that their policy could have had a chance to succeed.

Obama may be in a tough spot, but history is on his side. As we witnessed in 1953 with the overthrow of Mossadegh, covert activities, at least in the long-term, hold no promise of achieving our desired objectives.

Update: Obama on Iran is a post from Cato @ Liberty - Cato Institute Blog