State Secrets and the Limits of the Judicial Mandate

by John Eden | April 29th, 2009 | |Subscribe

The decision in Mohamed v. Jeppesen DataPlan has finally been handed down:  The Ninth Circuit Court of Appeals rejected the Bush and Obama Administrations’ argument that the state secrets privilege immunizes a private company from any and all legal claims for allegedly airlifting suspected terrorists to exotic locales so that they could be tortured.

For those unfamiliar with the case, the key facts are these.  Mr. Mohamed, along with four other victims of the CIA’s rendition and torture program, sued Boeing subsidiary Jeppesen DataPlan for providing the “travel services” that made outsourced torture in foreign lands possible.  The legal claim was simple:  Jeppesen DataPlan, for a (certainly) handsome fee, knowingly delivered human beings into the hands of “professionals” who would, in the name of national security, interrogate them.  And precisely what did these “professionals” do?  Well, if Binyam Mohamed’s allegations are to be believed, suspected terrorists under their watch were beaten to a pulp, cut and scalded with hot liquid, and threatened with rape and death.

The Obama Administration, after promising to bring “change,” did some serious backsliding and asserted, just like the Bush Administration had done before it, that the entire lawsuit had to be summarily dismissed.  Why?  Because if there ever was a rendition and torture program, evidence relating to it would be subject to the state secrets privilege and therefore inadmissible before any court.  So, in effect, the Obama Administration was intervening to protect a private company from an embarrassing lawsuit by claiming that the mere existence of the alleged agreement between that company and the government is “secret” (even if everyone already knows about it).

I hate to say this, but the Ninth Circuit wiped the floor with the arguments put forward by Obama’s legal team.  The court dismissed the notion that the government could simply have the entire case thrown out by claiming that the subject matter was out of bounds.  As a result, the case has been remanded to the lower court so specific claims of privilege can be properly addressed.  The Ninth Circuit came to this conclusion by way of a very nuanced legal argument:


Welcome back my friends to the show that never ends: The Afpak Sideshow

by David Isenberg | April 27th, 2009 | |Subscribe

I know the topic de jour these days is America’s torture policy, amplified by the recent release of Bush administration torture memos, but let’s not dwell on the past, as rightwing torture apologists, like to phrase it.

Instead let’s return to Afghanistan and Pakistan or Afpak in Washington jargon. Because if it is bad news in war zones that provide flimsy pretexts for torture, then Afpak seems likely to produce plenty in the future.

Let’s start with the under covered statement by Gen. David Petraeus, head of the US Central Command, who spoke at the John F. Kennedy School of Government on April 21. He said, “”We do believe we can achieve progress, but it’s going to get worse before it gets better,” said Petraeus. “When you go into the enemy’s sanctuaries, they will fight you for it. There will be tough months ahead, without question,” he said.

“Tough months?” Uh, General Petraeus? You meant tough years, didn’t you? Politico reported April 21 that the Pentagon’s senior military leaders are worried that the security situation in Afghanistan is stalemated or deteriorating, and now are preparing a far-reaching plan that would prepare the U.S. military for a war that could last three to five more years, officials said.

The effort, which is being coordinated by the Joint Staff and is still in its early stages, is designed to create an experienced cadre of officers and senior enlisted soldiers, who would rotate between assignments in Afghanistan and at their home stations until the end of hostilities.

The article goes on to say that “Until now, officers involved say, the Afghanistan war has been a secondary concern for the Pentagon, which has tended to view it as a short-term mission that took a back seat to the war in Iraq.”

Say what? 679 fatalities, and counting, in Operation Enduring Freedom since 2001, for a back seat “short-term mission?” If that really reflects the thinking of the past U.S. military and civilian leadership someone needs to be fired and perhaps court martialed or indicted for gross dereliction of professional responsibility.

Speaking of gross dereliction two weekends ago Afghanistan’s President Harmid Karzai asked Gen. David McKiernan, the top U.S. general in Afghanistan, to explain allegations of six civilian deaths in two recent incidents. It was the second time in three days Karzai brought up the topic with Gen. David McKiernan.

The United Nations has said a record 2,118 civilians died in the Afghan war last year, a 40 percent increase over 2007. The U.N. said U.S., NATO and Afghan forces killed 829 civilians, or 39 percent of the total. Of those, 552 deaths were blamed on airstrikes. (more…)

(The Sad) State of Play

by Matthew Rojansky | April 24th, 2009 | |Subscribe

Yes, that’s me, the sinister looking guy on the left side of the screen.  And yes, it’s a real beard.  About a year ago, when Kevin MacDonald and his crew were in DC filming the movie “State of Play,” my wife and I showed up at an open casting call for extras.  We got called back to do a scene set in a Congressional committee hearing room (actually the old EPA building on Constitution Ave, NW), where Rep. Stephen Collins (Ben Affleck) grills the CEO of PointCorp (a.k.a. Blackwater) about private contractor abuses in Iraq.  For no especially good reason, I got yanked from the crowd to sit in as the CEO’s lawyer, and the rest is, as they say, on the silver screen.

Why am I writing about a Hollywood movie here, on PSA’s bipartisan foreign policy blog?  Well, for one thing, I’m in it, and I think it’s worth seeing despite that.  It’s a pretty good film, and the twist at the end is better than I expected.  But there’s more than that.  For those of us who spend our professional lives thinking about good government policy and how it is—or isn’t—made, I think this movie holds an important lesson.

Without spoiling the plot, I can say that the young, idealistic Congressman’s investigation of the shadowy, powerful, paramilitary corporation is very far from a made up scenario.  It’s based, of course, on real investigations of waste, fraud, abuse, and even war crimes committed by private citizens whose salaries have been paid by the US government.  For more on that, see my fellow Across the Aisle blogger David Isenberg’s recent piece.  What’s worse is that in the movie, as in real life, the bad guys don’t get caught, partly because their high-level political connections immunize them from meaningful scrutiny, but much more importantly, because our system for oversight of government action by Congress is fundamentally broken.

With trillions of dollars in new government spending already swelling the coffers of the Executive Branch and two ongoing wars, it is time to get serious about oversight.  The President’s appointment of Interior Department Inspector General Earl Devaney to lead a stimulus oversight team was a fine gesture, but an Executive appointee monitoring Executive spending is like a fox guarding a henhouse.  Truly effective oversight will depend on Congress’s willingness to flex some of its Constitutional muscle. (more…)

The New Beginning for a Hemisphere

by John Prandato | April 22nd, 2009 | |Subscribe

When Hugo Chávez strolled over to Barack Obama with a book in hand and a sly smirk plastered on his face it was clear the Venezuelan president was up to no good.  Obama’s reluctance at first to even rise from his seat to accept Chávez’s gift – Eduardo Galeano’s The Open Veins of Latin America – was a telltale indication that he wanted the encounter to be over as soon as possible.  But Chávez prolonged the handshake to the brink of awkwardness while slightly twisting the paperback’s cover toward the cameras and holding it high for all to see.  The book’s subtitle, Five Centuries of the Pillage of a Continent, was all anyone needed to see to ascertain Chavez’s intentions.  Ironically, Eduardo Galeano is the same man who coined the term “democratoship” – an apt characterization of the style of government practiced in Chávez’s “Bolívarian Republic”.  To most of the hemisphere’s leaders, Chávez is nothing more than a self-righteous demagogue who happens to be sitting atop one of the world’s largest oil reserves.  To others, like Bolivia’s Evo Morales, Nicaragua’s Daniel Ortega, and the rest of the Bolivarian Alternative for the Americas (ALBA), he is nothing less than a champion of Latin American pride and glory.  Americans generally tend to agree with the former description, so the intense scrutiny that Obama has endured for his friendly reception of the controversial socialist leader has come as little surprise.  Senator John Ensign said “you have to be careful who you’re seen joking around with.  I think it was irresponsible for the president to be seen kind of laughing and joking with Hugo Chavez.”  Former House speaker Newt Gingrich warned that “everywhere in Latin America, enemies of America are going to use the picture of Chavez smiling and being with the president as proof that Chavez is now legitimate, that he is acceptable.”  But despite the ominous forecasts of a mounting challenge to American democracy, the simple truth is that Chávez’s regime does not imperil the U.S. in an era when cultural identity – not political ideology – serves as the most fundamental element of international relations.

Obama’s approach to Chávez, and to the Fifth Summit of the Americas in general, has certainly stood in stark contrast to that of his predecessor.  Four years ago, prior to the Summit’s fourth gathering at Mar del Plata, Argentina, Morales led a grand procession of anti-Americanism aboard a train called the Expreso del ALBA, culminating in a dramatic address by Chávez before 25,000 people at a soccer stadium to denounce George W. Bush and the “Washington Consensus”.  The subsequent meetings accomplished little but to demonstrate a U.S. commitment to unilateralism, and leaders throughout Latin America left Argentina questioning whether the Summit and the American-dominated Organization of American States (OAS) still maintained a purpose.

All signs in Latin America seemed to be pointing away from the principles that America stands for.  But according to Latinobarómetro – an annual Chilean public opinion survey of 18 Latin American countries – while attitudes toward the U.S. have diminished since 2001, support for democracy has steadily increased throughout the region.  This trend seems to indicate that Latin Americans embrace American values, but they object to America’s means of advancing – or imposing – those values.  Evidently, when it comes to our neighbors to the south, the reach of American influence has exceeded its grasp.  The U.S. sorely needed to reassess its strategy toward Latin America. (more…)

Is David Addington moonlighting at Obama’s Department of Justice?

by John Eden | April 17th, 2009 | |Subscribe

The Obama Administration recently made the understatement of the year:  It would be a “significant step” to dismiss claims that the U.S. Government engaged in an illegal dragnet wiretapping program in the wake of September 11th.  The rationale offered?  Not only does the state secrets doctrine (“Doctrine”) provide an unqualified immunity to any wiretapping program the Government might have engaged in, the law has always prioritized “the greater public good” over the protection of private claims (which, dear friends, is a telling euphemism for individual rights).  Did you get that?  Individual rights take a backseat whenever the government thinks national security so requires.  This disconcerting and radical claim was put forward in the Government’s motion to dismiss and motion for summary judgment in Jewel v. NSA.

Obama’s Justice Department, of course, has made this argument before.  In Mohammed v. Jeppesen DataPlan, Binyam Mohammed claimed that the Government hired Jeppesen DataPlan to deliver him to various exotic foreign locales so he could be tortured.  When Mohammed sued, the Government argued that the case couldn’t be litigated on account of the Doctrine.  Consider the idea underlying the Government’s arguments in both the Mohammed and Jewel cases:  Any evidence indicating that the U.S. Government is, has been, or could be engaged in illegal activities for the purpose of protecting national security simply cannot be heard by any court.  Evidence of this kind can’t be admitted even if a judge reviews it in camera (behind closed doors) to determine whether its disclosure would threaten national security.

As I have argued in connection with the Mohammed case, this position is extremely dangerous.  The Justice Department essentially wants the federal courts to apply an immunity to a case where the palpable costs to personal liberty and the rule of law are clear but the threat to international security is murky at best.  And, it is high irony indeed that one of the authorities cited by the Government in its brief actually undermines rather than supports its case:

    “Judicial intuition . . . is no substitute for documented risks and threats posed by the by the potential disclosure of national security information.”  Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007).

If judges are to rely on documented risks, rather than their own intuition, then they simply must have some kind of role in reviewing assertions of the Doctrine.  Of course, no sane person would argue that judges should admit evidence that could imperil national security.  Where documented risks show that intelligence gathering techniques and counterintelligence resources could be placed at risk by disclosing certain evidence, it makes sense to respect the Government’s invocation of the Doctrine.  But as a number of critics on the right and the left have pointed out – including Orin Kerr, Bruce Fein, and Glenn Greenwald – in Jewel the Doctrine appears to have been asserted to protect the Government from legal liability and embarrassment, not to guard national security.  Of course, the twin aims of protecting national security and preventing national embarrassment are not mutually exclusive.  But a legitimate aim should never be invoked as a pretext for a morally dubious one. (more…)

Up is Down, Increases are Cuts: Newspeak and the Department of Defense

by David Isenberg | April 13th, 2009 | |Subscribe

Gasp, choke, cough. Ha ha, he he! Wait, control yourself; take deep, regular breaths. Breathe in, breathe out. Ahh, that’s better.

Oh, excuse me, I’m sorry. I didn’t see you there. Pardon me but I was busy recovering from the laughing fit I’ve been on since April 6 when Secretary of Defense Robert Gates released the FY 2010 Department of Defense budget request.

With all the doom and gloom prophecies coming from the right wing – cue the grim faced, tight jawed warnings from major military contractors and their think tank and media proxies – (American Enterprise Institute, “Obama and Gates Gut the Military); (Heritage Foundation, An Adequate Defense Budget for a Full-Spectrum Force; (Lexington Institute) one might think that the Obama Administration had done something radical, like actually cutting the military budget.

But of course it did no such thing. What it did do was propose a base budget of $533.7 billion, a four percent increase over FY 2009. That budget was actually $513.3 billion (excluding funding from the American recovery and reinvestment Act of 2009).

In other words, a budget that is higher than last year’s is being falsely depicted as a cut. As they say, only in America.

It is also only $2.3 billion less than the base budget request for FY 2008, which was by the highest in the past five year 2006-2010 time period.

The 2010 budget request does not, of course, include the $83.4-billion war supplemental appropriations request the  White House sent to the Congress on April 9.

What do we get for our money, assuming the budget request is passed as proposed. It won’t, but for the sake of discussion let’s pretend it is.

It will support “additional permanent forces in the Army and Marine Corps, which will increase to 547,400 and 202,000, respectively, by the end of 2009. This growth is two to three years ahead of schedule and will reduce stress on servicemembers and their families, while ensuring heightened readiness for a full spectrum of military operations.”

In other words, it will help provide more forces for the war in Afghanistan.  If you think the war there will be won simply by supplying more conventional forces then it is a good idea.

The budget also states that “DOD’s new weapons programs are among the largest, most expensive and technically difficult that the Department has ever tried to develop. As a consequence, they carry a high risk of performance failure, cost increases, and schedule delays. The Administration will set realistic requirements and stick to them and incorporate “best practices” by not allowing programs to proceed from one stage of the acquisition cycle to the next until they have achieved the maturity to clearly lower the risk of cost growth and schedule slippage.”

This is what all the whining and wailing and gnashing of teeth is about. (more…)

Is Cuba Worth It?

by Michael Landweber | April 13th, 2009 | |Subscribe

As we near the end of Obama’s first 100 days, it would be hard to argue that this Administration has been reticent about stating its policies on national security and foreign policy issues.  We’ve heard major policy announcements on Iran, Iraq, Afghanistan, Russia, climate change and nuclear proliferation, just to name a few of the big fish that have been thrown onto the crowded frying pan.  And given the number of high-profile officials that have been named to coordinate key challenges, it seems that President Obama is looking to put his name in the Guinness Book of World Records under “most special envoys named.”

Yet, despite what has been a relatively forthright presentation of policy shifts on many other issues, the Administration continues to be relatively restrained on changing policy toward Cuba.  True, the Administration is lifting some restrictions, but that is small potatoes when you’re starting from a trade embargo, which apparently is not open for debate.

On April 17, Obama will meet with his counterparts from the Western Hemisphere at the Summit of the Americas.  Cuba will not be in attendance, and the Administration has gone so far as to point out that Cuba is not on the agenda.  It is clear that the President will hear a lot about Cuba and say very little.  The question is why.


April 20 Book Discussion on “The Power Problem”

by Brian Vogt | April 11th, 2009 | |Subscribe

Fellow PSA blogger Chris Preble will be leading a discussion based on his new book, The Power Problem:  How American Military Dominance Makes Us Less Safe, Less Prosperous, and Less Free, at CATO on April 20th.   It is sure to be a thought-provoking and timely discussion.  This will definitely be worth attending.  For those not in the DC area, the event will also be available online.  The details are as follows:

The Cato Institute invites you to a Book Forum

The Power Problem: How American Military Dominance Makes Us Less Safe, Less Prosperous, and Less Free
(Cornell University Press, 2009)

Monday, April 20, 2009
12:00 p.m.
(Luncheon to Follow)

Featuring the author Christopher A. Preble, Director of Foreign Policy Studies, Cato Institute.

With comments by Lawrence J. Korb, Center for American Progress, and Scott McConnell, The American Conservative.

Numerous polls show that Americans want to reduce our military presence abroad, allowing our allies and other nations to assume greater responsibility both for their own defense and for enforcing security in their respective regions. Why haven’t we done so? In The Power Problem, Christopher A. Preble contends that the vast military strength of the United States has induced policymakers in Washington to broaden the perception of the “national interest,” and ultimately to commit ourselves to the impossible task of maintaining global order.

Preble holds that the core national interest — preserving American security — is easily defined and largely immutable. In his view, military power is purely instrumental: if it advances U.S. security, then it is fulfilling its essential role. If it does not — if it undermines our security, imposes unnecessary costs, and forces all Americans to incur additional risks — then our military power is a problem, one that only we can solve.

Please join us as we discuss the nature of American military power, its purpose in U.S. foreign policy, and its power to define the national interest.

Cato Book Forums and luncheons are free of charge.
To register, visit, fax (202) 371-0841,
or call (202) 789-5229 by 12:00 p.m. Friday, April 17.
News media inquiries only (no registrations), please call (202) 789-5200.
If you can’t make it to the Cato Institute, watch this Forum live online at

A Call From Arms

by John Prandato | April 8th, 2009 | |Subscribe

Right on schedule, Sunday morning President Obama received the campaign trail’s notorious “3 a.m. phone call” that promised to test his mettle in the early days of his presidency.  Incidentally, “the call” happened to be a knock on the door of his Prague hotel room by Press Secretary Robert Gibbs at 4:30 a.m. local time, and Obama happened to be waiting with one hand on the receiver and the other on his foreign policy playbook.  Three hours later, after Japan had watched North Korea’s three-stage rocket fly ominously over the northern tip of its main island before plunging into the Pacific Ocean, President Obama took the stage in Prague for a scheduled speech on the fitting subject of nuclear non-proliferation.

North Korea’s bold defiance of international nuclear weapons regulations has been a matter of grave concern since the rogue state removed itself from the Nuclear Non-Proliferation Treaty in 2003.  Three years later, Pyongyang burrowed even deeper into the abyss of international alienation when it expelled International Atomic Energy Agency (IAEA) inspectors and conducted a test of a nuclear weapon, albeit ostensibly unsuccessfully.

Three days ago, North Korea’s alleged attempt to launch a satellite into orbit demonstrated its potential to carry a nuclear warhead as far as Alaska.  But amid the hawkish cries for preemptive action and the widespread calls for a “strong response” to North Korea’s “provocative” launch, one-third of the UN Security Council’s 15 members remain tentative.  In fact, the reluctance to take a firm stand — shared by two of the Council’s five permanent members, China and Russia — has led to a stalemate, with not even a modest warning yet agreed upon as a suitable punishment.   This indecisiveness has left many in the international community confused and frustrated.  After all, North Korea flagrantly violated UN Security Council resolution 1718, which explicitly banned it from testing ballistic missiles.  But China’s UN Ambassador Zhang Yesui pleaded with Council members to “refrain from taking actions that might lead to increased tensions” and Russian Ambassador Vitaly Churkin maintained that “the core element in this situation is the six-party talks” to denuclearize North Korea, which have been dormant for months.

President Obama’s response to Russian and Chinese leadership has been characterized as soft, especially since recent polling data indicates that a majority of the American public favors military action to eliminate North Korea’s ballistic missile capability.  Pyongyang’s actions, however, do not constitute a distinct nuclear crisis on the Korean Peninsula, but rather represent just one piece of the global nuclear security puzzle.  Obama’s focus must continue to remain on the eventual goal of eliminating worldwide nuclear proliferation which requires, above all, a unified position held by all members of the Security Council. (more…)

Another way to promote bipartisanship

by Brian Vogt | April 7th, 2009 | |Subscribe

Maybe videos are worth a try?

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All blog posts are independently produced by their authors and do not necessarily reflect the policies or positions of PSA. Across the Aisle serves as a bipartisan forum for productive discussion of national security and foreign affairs topics.