There was a moment in 2005 when American democracy promotion efforts and national security interests seemed perfectly aligned. Syria announced its withdrawal from Lebanon; Egypt allowed contested elections for the first time in its history; elections were held in Palestine; and Iraq held parliamentary elections. A more secure, more democratic Middle East appeared to be only a matter of time. Then Hizbullah filled the void in Lebanon, leading to war with Israel. Egypt’s elections turned out to be a sham, and the government subsequently cracked down on the opposition. Hamas swept the elections in Palestine the following year, and Iraq was quickly mired in the deadliest year of its occupation. This swift reversal revealed that our democracy promotion efforts and our national security are linked in very complex, and sometimes contradictory, ways. Promoting democracy while protecting national security is always desirable, and in the long term those interests do indeed align. In the short term, however, we often have to make the difficult decision to prioritize one before the other. If we strike the right balance, we will be able to keep our country safe from immediate threats while laying the foundation for stable democracies in the future.

Today, the Middle East is, if anything, less stable than it was in 2005. The government in Iraq clings to the best news it can get—that the violence isn’t as bad as it used to be. In Afghanistan, NATO troops struggle to regain territory they controlled a few years ago and a corrupt government rules the country. The dream of a stable, democratic Middle East seems to be gone, replaced only with a desperate hope that we might be able to withdraw without triggering civil war. Democracy, if it is achievable in either country, will be a long, hard slog. (more…)

This is my last post for 2009 I thought I would write about Afghanistan but on second thought I will, no doubt, be doing that quite a lot during 2010. Thanks to the Obama Administration’s surge strategy Afghanistan will, from a blogging viewpoint, be the gift that keeps on giving.

So, as we contemplate whether 2010 will be better or worse let’s take a moment to consider 2009. In the spirit of Dave Barry’s classic annual year in review column let’s acknowledge, albeit with some poetic license commentary by moi, a few of the significant events that made, however briefly, the headlines.

Although it started on Dec. 28 2008 the month of January saw massive Israeli air strikes and a ground force invasion of the Gaza Strip. Heavy fighting took place in Gaza City between the Israeli forces and Hamas. At least 1300 Palestinians were killed. On Jan. 17 Israeli Prime Minister Ehud Olmert announced a unilateral ceasefire in the Gaza Strip, declaring that Israel has achieved the goals it set when launching the military operation. On Jan. 21 Israel completes its troop withdrawal from the Gaza Strip.

Also that month President Barack Obama signed executive orders closing the US detention camp at Guantánamo Bay, Cuba, within a year; closing the CIA’s secret prisons; requiring a review of military trials for terror suspects; and requiring all interrogations to follow the non-coercive methods specified in the Army Field Manual.

Of course, nobody knew back then that the camp would end up in Illinois. One can only hope that the inmates are not too acclimated to the Caribbean climate to adjust to a midwest winter.

On Jan 27 Hama declared that it previously was just kidding and broke the ceasefire by attacking an Israeli frontier patrol. Israel immediately responded that it lacks a sense of humor and renewed its air strikes on the Gaza Strip border with Egypt.

On Feb. 3 Iran launched its first domestically built satellite into orbit. Iran stated that the satellite is meant for research and telecommunications purposes, but Western states express concern that the technology could be used in the development of ballistic missiles. The U.S. intelligence community, estimating that Iran will show the same swift progress with its missiles that it did with its nuclear program, predicted the next flight will be in 2040.

On Feb. 6, renewing their classic rivalry, a British and a French nuclear submarine collided in the middle of the Atlantic Ocean. Political leaders from both countries sighed in relief that it was merely submarines and not their respective football fans that collided. (more…)

The Society for Professional Journalists has for quite some time wanted Congress to pass a law that would give reporters a right to keep their sources confidential.  Such a law, commonly referred to as a “shield” law, has obvious advantages from the perspective of the dedicated professionals that collect and disseminate news for the rest of us.

The current shield law making the rounds in Congress is called the Free Flow of Information Act (FFIA).  According to FFIA advocates, the bill is essential because it will enable journalists to collect information of essential importance to the public without laboring under the fear that they will one day have to disclose their sources.  The thought is simple and appealing:  When journalists are able to protect the confidentiality of their sources, the public benefits from the increased access to accurate information that journalists would otherwise be unable to obtain.  In this way, shield laws like FFIA are consistent with the free-speech values that undergird our Constitution.

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Take a moment, dear friends, to consider Judge Milan Smith’s sentiments about the practice of detaining Americans as “material witnesses” to terrorist activities without formally charging them with a crime:

“We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Those words were taken from in al-Kidd v. Ashcroft, a decision by a Ninth Circuit panel holding that John Ashcroft may be sued for his participation in detaining suspected terrorists or terrorist affiliates under the federal material witness statute. In particular, the court held that:

1. (absolute immunity) Ashcroft is not entitled to absolute immunity from suit as representative of the United States government because in allegedly detaining al-Kidd, Ashcroft was engaging in investigative conduct, not purely “prosecutorial” conduct of the type for which officials receive absolute immunity from third-party liability.

2. (rights violations) Ashcroft may be sued for allegedly violating al-Kidd’s Fourth Amendment rights against unlawful detention and statutory rights afforded al-Kidd under the federal material witness statute because it is possible that Ashcroft did play a critical role in al-Kidd’s detention.

However, Ashcroft cannot be sued on the theory that he played a role in determining the allegedly harsh conditions of al-Kidd’s confinement under the high-bar for such allegations set out in the Supreme Court’s Iqbal decision (which I have criticized at some length here).

3. (qualified immunity) Even though Ashcroft is entitled to qualified immunity as a representative to the United States government, al-Kidd may bring an action against him because at the time Ashcroft allegedly decided to use the material witness statute to detain al-Kidd, it was legally certain that doing so would be unlawful. (more…)

Some time ago I wrote a story about Javaid Iqbal, a cable installer the U.S. government allegedly tortured in detention center in Brooklyn. My argument was simple: Mr. Iqbal should be able to present, in court, his case that John Ashcroft and Robert Mueller played key roles in the decision making processes that led to the violation of his constitutional rights. At that point, it looked very much like Mr. Iqbal would be denied his day in court. My fear was that the Supreme Court would throw out his case because Mr. Iqbal would be unable to submit before his case got under way substantial evidence that Ashcroft and Mueller called the shots from on high, ultimately causing the torture he endured.

Unfortunately, I was right. Not only was Mr. Iqbal denied his right to press his claims against the U.S. government and key government officials, the Supreme Court endorsed a problematic approach to evaluating federal lawsuits. The Court rehearsed the old saw, from a case called Twombly, that a case should be dismissed unless the plaintiff’s complaint includes allegations with “factual content” that allows the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” So far, so good. But then the Court did something truly irritating: it viewed Iqbal’s claims with extreme suspicion, concluding that because the September 11th attacks were perpetrated by Arab Muslims, Iqbal’s claim that his constitutional rights had been violated based on discriminatory factors was not articulated with sufficient specificity.

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In a recent article in Harper’s Magazine, Luke Mitchell observes that we are still using torture at Guantanamo Bay. Contrary to the notion that Obama’s ascendancy to the White House marked an end to torture, the U.S. government still allows – and even mandates – certain kinds of torture in Gitmo. These practices include prolonged isolation, sleep and sensory deprivation, and even force feeding. According to Mitchell, right now at least thirty men are being force fed at Guantanamo.

Force feeding is a ghastly act, an act designed not to preserve life but rather to break the human spirit. In many instances feeding tubes are inserted through the nostrils to facilitate delivering “nutrients.” Binyam Mohamed, a British resident recently released from Guantanamo, claims that he has seen detainees beaten into submission by SWAT teams if they refuse to eat the food provided to them. Ahmed Ghapour, an attorney with the human rights group Reprieve, claims that detainees at Guantanamo have at times been forced to eat food laced with laxatives. Artificially amplify the speed with which the human body “processes” food, and voila, the aggregate amount of pain imposed by force feeding is increased. A lovely way to apply Machiavellian teachings to the war on terror, wouldn’t you say?

Mitchell offers a helpful prism through which to refract these facts: While Obama and the Democrats have publicly condemned a “lawless” approach to torture, they have “not rejected torture itself.” But how can this be? Was it not Candidate Obama that promised us, in terms laden with no moral or linguistic ambiguity, that he would put an end to the Reign of Bush, and in doing so dispose with torture as a tool of national security? (more…)

It is easy to forget that the war on terror poses a direct challenge to the very ideals that animate and enliven our democracy. America is predicated on the idea that fairness and justice should reach the farthest bounds of the republic, providing identical protections to the good and wicked alike. This, of course, requires extreme caution when depriving the liberty of even those criminals that are clearly guilty of the most heinous crimes.

Many thoughtful, intelligent people believe that this premise, this central ideal of American democracy, seems to make little sense when applied to suspected terrorists. After all, the foes we face are un-uniformed and do not announce themselves to us. They attack our economic, political and social infrastructure with frightening skill and ingenuity. Al Qaeda, in particular, has proven itself to be an adversary never to be underestimated, a foe that successfully attacked the world’s preeminent military power with very modest resources. Since we are facing such a vicious, lawless opponent, can it really be rational to extend the same protection to (suspected) terrorists that we would to ordinary criminals?

Jose Padilla believes that the answer is yes. Mr. Padilla has filed a lawsuit contending that John Yoo, co-author of the torture memos, abused his charge as a government lawyer by helping to create policies that encouraged harsh interrogation tactics and torture. The idea here is simple: Yoo should be held liable for the foreseeable results of the interrogation policies for which he provided legal justifications. This sort of theory has a long and storied pedigree, making its initial appearance in a case called Bivens, where the Supreme Court granted damages to an individual citizen who had his constitutional rights violated by federal agents acting on behalf of the U.S. government.
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This month, President Obama announced that his administration would be retaining and reforming, rather than abolishing altogether, the heavily criticized military commissions implemented by the Bush administration. His reforms outline a number of changes to the commissions’ procedural rules, primarily designed to afford greater protection to detainees and to thereby “restore the Commissions as a legitimate forum for prosecution, while bringing them in line with the rule of law.” Needless to say, Obama’s decision to maintain the military commissions has bitterly disappointed human rights and civil liberties advocates, who had hoped that his promise to close Guantanamo Bay would also signal the end of the politically and legally controversial commissions. In criticizing the Obama’s decision, such advocates have raised two key questions about the retention of the military commissions. First, will the proposed changes in fact restore the legitimacy of the commissions, or do they not go far enough? Second, is the underlying raison d’être of the tribunals—the idea that the detainees in question are too dangerous to release, but too difficult to prosecute in the federal courts—still valid?
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Perhaps distance brings perspective but as a U.S. citizen watching the torture debate from outside the United States I can’t help but feel that there is a disingenuous tone to the ongoing debate.

While it is good that policymakers and the public are debating this publicly it can’t come as a surprise to anyone but the most willfully ignorant that the United States has been torturing prisoners, including those who definitely are guilty of nothing, in its custody for years.

If the actor Claude Rains were alive today he would instantly recognize this hypocrisy for what it is. After all it was his words in the classic film Casablanca which has since served as the signature line for all those who feign indignation over something they have long known is going on.

Rick: How can you close me up? On what grounds?

Captain Renault: I’m shocked, shocked to find that gambling is going on in here!

[a croupier hands Renault a pile of money]

Croupier: Your winnings, sir.

Captain Renault: [sotto voce] Oh, thank you very much.
[aloud]
Captain Renault: Everybody out at once!

I hate to say it but too many Americans resemble the “Good Germans” who at the end of WWII claimed they hadn’t a clue that a Holocaust had been taking place. We have consciously and for many, willingly, turned a blind eye and ear to what has been done in our names. Some people are so morally and ethically debased that they trivialized torture as just high spirited roughhousing. Just remember when in the aftermath of the Abu Ghraib revelations maniacs like Rush Limbaugh or even as recently as last year a Congressman like Dana Rohrbacher dismissed torture as fraternity pranks.

It also bears note that in the aftermath of Abu Ghraib we have yet to do anything to the military and civilian officials at the highest levels of the national security bureaucracy who authorized this. Instead, we prosecuted a few lowly enlisted men for doing what they were told. There was a time when America did not accept “just following orders” as an excuse, either for those who followed them or for those who issued them.

One hardly needed to read the memos from the Justice Department’s Office of Legal Counsel that the Obama Administration released to know that torture was going on. It has been the subject of analysis and debate in law journals for years. All anyone had to do was type “torture” into the Lexis-Nexis legal database and you would get thousands of results. Note that these aren’t the result of searching for “abuse” or “enhanced interrogation techniques” but just plain “torture.” (more…)

From day one, there has been rampant speculation about what will test Obama on foreign policy.  Iran and North Korea come up frequently as countries that could force Obama into a crisis situation.  However, I think that another country may be the real test of the fledgling Obama doctrine:  Burma.

Aung San Suu Kyi went on trial last week.  Her crime is allowing an American trespasser, John Yettaw, who swam to her isolated house uninvited, to spend a night in her guest room.  This violated the rules of her house arrest, which she has been under for years.  The house arrest was about to end and conventional wisdom holds that the Burmese generals who rule the country would have trumped up some reason to keep her under lock and key.  Yettaw just saved them the trouble of having to make something up.

The U.S. has condemned the trial, just as we have condemned every action by the ruling junta since they took control of the country decades ago.  The Administration also announced that sanctions would continue on Burma for at least another year, by which time I assume the announced U.S. review of Burma policy will be complete.  The question is what could possibly change.

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