• You are Not a Person, Anwar al-Awlaki

    March 13, 2013 // 11 Comments

    Tags: , , , , ,
    Posted in: Democracy, Embassy/State, Military

    This article originally appeared on the Huffington Post.

    Though I spent 24 years working for the State Department as a Consular Officer, charged in part with the issuance and (very rarely) revocation of U.S. passports, there is still room to learn something new: The Government of the United States can, and apparently does, take away passports from American Citizens because “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”

    If the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows them to do this prospectively, the “or are likely to cause…” part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.

    We learned via a Judicial Watch Freedom of Information Act request that prior to having him and his 16 year old son away blown away via drone in 2011, Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen. The State Department even tried to invite al-Awlaki into the U.S. Embassy in Yemen so they could hand him a letter announcing the revocation and so that they could encourage him to return to the U.S. to face charges. Six months later (al-Awlaki never dropped by the Embassy, by the way), the U.S. Government simply killed him. Two weeks after that it killed his 16 year old son.

    I have been unable to track down many recent examples where the U.S. Government revoked the passport of an American simply because his/her presence abroad bothered– or might bother– the Secretary of State. In fact, the only example I was able to locate was that of infamous ex-CIA officer Phillip Agee, who in the 1970’s exposed CIA officers identities. It was Agee’s case that prompted a Supreme Court review of the Department of State’s ability to revoke passports simply because the government didn’t want you to travel abroad (the Supreme’s upheld the government’s ability to do so based on a 1926 law after lower courts said no. The Court stated that “The right to hold a passport is subordinate to national security and foreign policy considerations.”)

    Agee was a naughty boy. According to the Supreme Court:

    In 1974, Agee called a press conference in London to announce his “campaign to fight the United States CIA wherever it is operating. He declared his intent “to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating.” Since 1974, Agee has, by his own assertion, devoted consistent effort to that program, and he has traveled extensively in other countries in order to carry it out. To identify CIA personnel in a particular country, Agee goes to the target country and consults sources in local diplomatic circles whom he knows from his prior service in the United States Government. He recruits collaborators and trains them in clandestine techniques designed to expose the “cover” of CIA employees and sources. Agee and his collaborators have repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources. The record reveals that the identifications divulge classified information, violate Agee’s express contract not to make any public statements about Agency matters without prior clearance by the Agency, have prejudiced the ability of the United States to obtain intelligence, and have been followed by episodes of violence against the persons and organizations identified.


    In Anwar Al-Awlaki’s case, the Government has not made much of a case (never mind for the passport, remember he was murdered by a drone). In fact, officially, we do not know why al-Awlaki was killed at all, or under what laws or by what decision process. Some reports tie him to the failed idiot underwear bomber, but being part of a failed plot seems not to rise to the usual standard for capital punishment. It is all secret.

    The Government of the United States executed one of its own citizens abroad without any form of due process. This is generally seen as a no-no as far as the Bill of Rights goes. The silly old Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and includes no exceptions for war, terrorism, or being a really bad human being.

    Could the passport revocation have been simply a ruse, a bureaucratic CYA attempt at providing some sort of illusion of “due process?” Could al-Awlaki’s not dropping by the U.S. Embassy to chat about his passport have been a veiled attempt to justify his killing in that he was thus not able to be arrested? Or was the passport revocation just a simple act of dehumanizing someone to make killing him that much more palatable?

    We’ll never know.



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  • You Won’t Like It, But Here’s the Answer to ISIS

    January 25, 2016 // 11 Comments

    Tags: ,
    Posted in: Afghanistan, Iran, Iraq, Libya, Syria, Yemen

    isis




    How can we stop the Islamic State?

    Imagine yourself shaken awake, rushed off to a strategy meeting with your presidential candidate of choice, and told: “Come up with a plan for me to do something about ISIS!” What would you say?


    What Hasn’t Worked

    You’d need to start with a persuasive review of what hasn’t worked over the past 14-plus years. American actions against terrorism — the Islamic State being just the latest flavor — have flopped on a remarkable scale, yet remain remarkably attractive to our present crew of candidates. (Bernie Sanders might be the only exception, though he supports forming yet another coalition to defeat ISIS.)

    Why are the failed options still so attractive? In part, because bombing and drones are believed by the majority of Americans to be surgical procedures that kill lots of bad guys, not too many innocents, and no Americans at all. As Washington regularly imagines it, once air power is in play, someone else’s boots will eventually hit the ground (after the U.S. military provides the necessary training and weapons). A handful of Special Forces troops, boots-sorta-on-the-ground, will also help turn the tide. By carrot or stick, Washington will collect and hold together some now-you-see-it, now-you-don’t “coalition” of “allies” to aid and abet the task at hand. And success will be ours, even though versions of this formula have fallen flat time and again in the Greater Middle East.

    Since the June 2014 start of Operation Inherent Resolve against the Islamic State, the U.S. and its coalition partners have flown 9,041 sorties, 5,959 in Iraq and 3,082 in Syria. More are launched every day. The U.S. claims it has killed between 10,000 and 25,000 Islamic State fighters, quite a spread, but still, if accurate (which is doubtful), at best only a couple of bad guys per bombing run. Not particularly efficient on the face of it, but — as Obama administration officials often emphasize — this is a “long war.” The CIA estimates that the Islamic State had perhaps 20,000 to 30,000 fighters under arms in 2014. So somewhere between a third of them and all of them should now be gone. Evidently not, since recent estimates of Islamic State militants remain in that 20,000 to 30,000 range as 2016 begins.

    How about the capture of cities then? Well, the U.S. and its partners have already gone a few rounds when it comes to taking cities. After all, U.S. troops claimed Ramadi, the capital of Iraq’s al-Anbar Province, in 2003, only to see the American-trained Iraqi army lose it to ISIS in May 2015, and U.S-trained Iraqi special operations troops backed by U.S. air power retake it (in almost completely destroyed condition) as 2015 ended. As one pundit put it, the destruction and the cost of rebuilding make Ramadi “a victory in the worst possible sense.” Yet the battle cry in Washington and Baghdad remains “On to Mosul!”

    Similar “successes” have regularly been invoked when it came to ridding the world of evil tyrants, whether Iraq’s Saddam Hussein or Libya’s Muammar Qaddafi, only to see years of blowback follow. Same for terrorist masterminds, including Osama bin Laden and Anwar al-Awlaki, as well as minor-minds (Jihadi John in Syria), only to see others pop up and terror outfits spread. The sum of all this activity, 14-plus years of it, has been ever more failed states and ungoverned spaces.

    If your candidate needs a what-hasn’t-worked summary statement, it’s simple: everything.


    How Dangerous Is Islamic Terrorism for Americans?

    To any argument you make to your preferred presidential candidate about what did not “work,” you need to add a sober assessment of the real impact of terrorism on the United States in order to ask the question: Why exactly are we engaged in this war on this scale?

    Hard as it is to persuade a constantly re-terrorized American public of the actual situation we face, there have been only 38 Americans killed in the U.S. by Islamic terrorists, lone wolves, or whacked-out individuals professing allegiance to Islamic extremism, or ISIS, or al-Qaeda, since 9/11. Argue about the number if you want. In fact, double or triple it and it still adds up to a tragic but undeniable drop in the bucket. To gain some perspective, pick your favorite comparison: number of Americans killed since 9/11 by guns (more than 400,000) or by drunk drivers in 2012 alone (more than 10,000).

    And spare us the tired trope about how security measures at our airports and elsewhere have saved us from who knows how many attacks. A recent test by the Department of Homeland’s own Inspector General’s Office showed that 95% of contraband, including weapons and explosives, got through airport screening without being detected. Could it be that there just aren’t as many bad guys out there aiming to take down our country as candidates on the campaign trail would like to imagine?

    Or take a look at the National Security Agency’s Fourth Amendment-smothering blanket surveillance. How’d that do against the Boston bombing or the attacks in San Bernardino? There’s no evidence it has ever uncovered a real terror plot against this country.

    Islamic terrorism in the United States is less a serious danger than a carefully curated fear.


    Introduce Your Candidate to the Real World

    You should have your candidate’s attention by now. Time to remind him or her that Washington’s war on terror strategy has already sent at least $1.6 trillion down the drain, left thousands of American troops and hundreds of thousands, if not millions, of Muslims dead. Along the way we lost precious freedoms to the ever-expanding national security state.

    So start advising your candidate that a proper response to the Islamic State has to be proportional to the real threat. After all, we have fire departments always on call, but they don’t ride around spraying water on homes 24/7 out of “an abundance of caution.”


    We Have to Do Something

    So here’s what you might suggest that your candidate do, because you know that s/he will demand to “do something.”

    Start by suggesting that, as a society, we take a deep look at ourselves, our leaders, and our media, and stop fanning everyone’s flames. It’s time, among other things, to stop harassing and discriminating against our own Muslim population, only to stand by slack-jawed as a few of them become radicalized, and Washington then blames Twitter. As president, you need to opt out of all this, and dissuade others from buying into it.

    As for the Islamic State itself, it can’t survive, never mind fight, without funds. So candidate, it’s time to man/woman up, and go after the real sources of funding.

    As long as the U.S. insists on flying air attack sorties (and your candidate may unfortunately need to do so to cover his/her right flank), direct them far more intensely than at present against one of ISIS’s main sources of cash: oil exports. Blow up trucks moving oil. Blow up wellheads in ISIS-dominated areas. Finding targets is not hard. The Russians released reconnaissance photos showing what they claimed were 12,000 trucks loaded with smuggled oil, backed up near the Turkish border.

    But remind your candidate that this would not be an expansion of the air war or a shifting from one bombing campaign to a new one. It would be a short-term move, with a defined end point of shutting down the flow of oil. It would only be one part of a far larger effort to shut down ISIS’s sources of funds.

    Next, use whatever diplomatic and economic pressure is available to make it clear to whomever in Turkey that it’s time to stop facilitating the flow of that ISIS oil onto the black market. Then wield that same diplomatic and economic pressure to force buyers to stop purchasing it. Some reports suggest that Israel, cut off from most Arab sources of oil, has become a major buyer of ISIS’s supplies. If so, step on some allied toes. C’mon, someone is buying all that black-market black gold.

    The same should go for Turkey’s behavior toward ISIS.  That would extend from its determination to fight Kurdish forces fighting ISIS to the way it’s allowed jihadis to enter Syria through its territory to the way it’s funneled arms to various extreme Islamic groups in that country. Engage Turkey’s fellow NATO members. Let them do some of the heavy lifting. They have a dog in this fight, too.

    And speaking of stepping on allied toes, make it clear to the Saudis and other Sunni Persian Gulf states that they must stop sending money to ISIS. Yes, we’re told that this flow of “donations” comes from private citizens, not the Saudi government or those of its neighbors. Even so, they should be capable of exerting pressure to close the valve. Forget a “no-fly zone” over northern Syria — another fruitless “solution” to the problem of the Islamic State that various presidential candidates are now plugging — and use the international banking system to create a no-flow zone.

    You may not be able to stop every buck from reaching ISIS, but most of it will do in a situation where every dollar counts.

    Your candidate will obviously then ask you, “What else?  There must be more we can do, mustn’t there?”

    To this, your answer should be blunt: Get out. Land the planes, ground the drones, and withdraw. Pull out the boots, the trainers, the American combatants and near combatants (whatever the euphemism of the moment for them may be). Anybody who has ever listened to a country and western song knows that there’s always a time to step away from the table and cut your losses. Throwing more money (lives, global prestige…) into the pot won’t alter the cards you’re holding. All you’re doing is postponing the inevitable at great cost.

    In the end, there is nothing the United States can do about the processes now underway in the Middle East except stand on the beach trying to push back the waves.

    This is history talking to us.


    That Darn History Thing

    Sometimes things change visibly at a specific moment: December 7, 1941, at Pearl Harbor, or the morning of September 11, 2001. Sometimes the change is harder to pinpoint, like the start of the social upheaval that, in the U.S., came to be known as “the Sixties.”

    In the Middle East after World War I, representatives of the victorious British and French drew up national boundaries without regard for ethnic, sectarian, religious, tribal, resource, or other realities. Their goal was to divvy up the defeated Ottoman Empire. Later, as their imperial systems collapsed, Washington moved in (though rejecting outright colonies for empire by proxy). Secular dictatorships were imposed on the region and supported by the West past their due dates. Any urge toward popular self-government was undermined or destroyed, as with the coup against elected Prime Minister Mohammad Mossadegh in Iran in 1953, or the way the Obama administration manipulated the Arab Spring in Egypt, leading to the displacement of a democratically chosen government by a military coup in 2013.

    In this larger context, the Islamic State is only a symptom, not the disease. Washington’s problem has been its desire to preserve a collapsing nation-state system at the heart of the Middle East. The Bush administration’s 2003 invasion of Iraq certainly sped up the process in a particularly disastrous fashion. Twelve years later, there can’t be any question that the tide has turned in the Middle East — forever.

    It’s time for the U.S. to stand back and let local actors deal with the present situation. ISIS’s threat to us is actually minimal. Its threat to those in the region is another matter entirely. Without Washington further roiling the situation, it’s a movement whose limits will quickly enough become apparent.

    The war with ISIS is, in fact, a struggle of ideas, anti-western and anti-imperialist, suffused with religious feeling. You can’t bomb an idea or a religion away. Whatever Washington may want, much of the Middle East is heading toward non-secular governments, and toward the destruction of the monarchies and the military thugs still trying to preserve updated versions of the post-World War I system. In the process, borders, already dissolving, will sooner or later be redrawn in ways that reflect how people on the ground actually see themselves.

    There is little use in questioning whether this is the right or wrong thing because there is little Washington can do to stop it. However, as we should have learned in these last 14 years, there is much it can do to make things far worse than they ever needed to be. The grim question today is simply how long this painful process takes and how high a cost it extracts. To take former President George W. Bush’s phrase and twist it a bit, you’re either with the flow of history or against it.


    Fear Itself

    Initially, Washington’s military withdrawal from the heart of the Middle East will undoubtedly further upset the current precarious balances of power in the region. New vacuums will develop and unsavory characters will rush in. But the U.S. has a long history of either working pragmatically with less than charming figures (think: the Shah of Iran, Anwar Sadat, or Saddam Hussein before he became an enemy) or isolating them. Iran, currently the up-and-coming power in the area absent the United States, will no doubt benefit, but its reentry into the global system is equally inevitable.

    And the oil will keep flowing; it has to. The countries of the Middle East have only one mighty export and need to import nearly everything else. You can’t eat oil, so you must sell it, and a large percentage of that oil is already sold to the highest bidder on world markets.

    It’s true that, even in the wake of an American withdrawal, the Islamic State might still try to launch Paris-style attacks or encourage San Bernardino-style rampages because, from a recruitment and propaganda point of view, it’s advantageous to have the U.S. and the former colonial powers as your number one enemies.  This was something Osama bin Laden realized early on vis-à-vis Washington. He succeeded beyond his wildest dreams in drawing the U.S. deeply into the quagmire and tricking Washington into doing much of his work for him. But the dangers of such attacks remain limited and can be lived with. As a nation, we survived World War II, decades of potential nuclear annihilation, and scores of threats larger than ISIS. It’s disingenuous to believe terrorism is a greater threat to our survival.

    And here’s a simple reality to explain to your candidate: we can’t defend everything, not without losing everything in the process. We can try to lock down airports and federal buildings, but there is no way, nor should there be, to secure every San Bernardino holiday party, every school, and every bus stop. We should, in fact, be ashamed to be such a fear-based society here in the home of the brave. Today, sadly enough, the most salient example of American exceptionalism is being the world’s most scared country. Only in that sense could it be said that the terrorists are “winning” in America.


    At this point, your candidate will undoubtedly say: “Wait! Won’t these ideas be hard to sell to the American people? Won’t our allies object?”

    And the reply to that, at least for a candidate not convinced that more of the same is the only way to go, might be: “After more than 14 years of the wrong answers and the disasters that followed, do you have anything better to suggest?”




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  • Paris: You Don’t Want to Read This

    November 14, 2015 // 93 Comments

    Tags: , , ,
    Posted in: Afghanistan, Democracy, Iraq, Military, Syria

    paris

    You don’t want to read this, and I take no pleasure in writing it, and no one really wants to hear it right now. But I believe it needs to be said.


    I join the world in grieving for the dead in Paris. I have grieved for the dead from 9/11 forward — the Australians who died in terror attacks on Bali in 2002, Londoners who died in terror attacks in 2005, the French citizens who died in the Charlie Hebdo attacks in January of this year, the Russians whose plane went down over the Sinai a week or so ago. So many more non-Western deaths barely noticed in the U.S. media. I grieve also for those killed in smaller attacks already smuggled deep into the obscurity of our memory.

    And so we Tweet hashtags and phrases in high school French and post GIFs to Facebook. We know what to do; we’ve done this before.

    But it has to be said, especially looking at the sick repetition of the same story, that despite fourteen plus years of a war on terror, terror seems to be with us as much as ever, maybe even more. It is time to rethink what we have done and are doing.


    Since that day in 2001, the one with those terrible sparkling blue skies in New York, we have spied on the world, Americans at home and foreigners abroad, yet no one detected anything that stopped the Paris attacks. We gave up much to that spying and got nothing in return.

    Since 2001, the United States has led nations like Britain, France, Australia and others into wars in Iraq, Afghanistan, Libya and Syria, with drone attacks on people from the Philippines to Pakistan to all parts of Africa. We have little to nothing to show for all that.

    Since 2001 the U.S. has expended enormous efforts to kill a handful of men — bin Laden, al-Zarqawi, al-Awlaki, and this weekend, Jihadi John. Others, many without names, were killed outside of media attention, or were tortured to death, or are still rotting in the offshore penal colony of Guantanamo, or the dark hell of the Salt Pit in Afghanistan.

    And it has not worked, and Paris this weekend, and the next one somewhere else sometime soon, are the proof.


    We gave up many of our freedoms in America to defeat the terrorists. It did not work. We gave the lives of over 4,000 American men and women in Iraq, and thousands more in Afghanistan, to defeat the terrorists, and refuse to ask what they died for. We killed tens of thousands or more in those countries. It did not work. We went to war again in Iraq, and now in Syria, before in Libya, and only created more failed states and ungoverned spaces that provide havens for terrorists and spilled terror like dropped paint across borders. We harass and discriminate against our own Muslim populations and then stand slack-jawed as they become radicalized, and all we do then is blame ISIS for Tweeting.

    Note that it is the strategy of Islamic terror to generate a crackdown in France in order to radicalise French Muslims. Hundreds of French citizens have already traveled to Syria to fight with groups including ISIS.

    As one of the most intelligent commentators on all this, Bill Johnson, said, terrorism is about killing pawns to affect the king. The attacks in Paris are not about the murder of 150 innocent people. Hell, that many die nearly every day in Iraq and Syria. The true test for France is how they respond to the terror attacks in the long-game — that’s the king in all this. America failed this test post-9/11; yet it does not sound like France understands anything more than America. “We are going to lead a war which will be pitiless,” French president Hollande said outside the Bataclan concert hall, scene of the most bloodshed.


    If I had exactly the right strategy, I’d tell you what it is, and I’d try and tell the people in Washington and Paris and everywhere else. But I don’t have the exact thing to do, and I doubt they’d listen to me anyway.

    But I do have this: stop what we have been doing for the last 14 years. It has not worked. There is nothing at all to suggest it ever will work. Whack-a-mole is a game, not a plan. Leave the Middle East alone. Stop creating more failed states. Stop throwing away our freedoms at home on falsehoods. Stop disenfranchising the Muslims who live with us. Understand the war, such as it is, is against a set of ideas — religious, anti-western, anti-imperialist — and you cannot bomb an idea. Putting western soldiers on the ground in the MidEast and western planes overhead fans the flames. Vengeance does not and cannot extinguish an idea.

    Start with those things and see, even if you won’t give it 14 years to succeed, if things improve. Other than the death tolls scaling up further, I can’t imagine we could be doing anything worse.




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  • America’s Civilian Killings are No Accident

    October 22, 2015 // 15 Comments

    Tags: , ,
    Posted in: Afghanistan, Iraq, Military, Yemen




    America and its allies make modern war in a way that assures “mistakes” destroy hospitals, and civilian lives are taken by drones. These horrors are all too often strategic decisions, or the result of the profligate use of needlessly destructive weapons. They are typically far from accidents.

    The destruction of a hospital in Kunduz, Afghanistan, including the deaths of physicians from Doctors Without Borders, has become the celebrity example of America’s conduct of war. It is the one that made the news, much like a single child dead on the beach stood in for five years of unabated refugee flows out of the Middle East. But Kunduz is more important than just a dramatic news story, in that it stands as a clear example of a sordid policy.

    Target Kunduz

    After a series of cascading explanations, the United States settled on blaming the Afghan military for demanding a strike on the building which was the hospital. There is truth in that — the request likely did initiate with the Afghans — but it ignores the larger story of how “accidents” really happen.

    The strike was conducted by an American AC-130, a flying gunship. A retired Air Force Special Operations officer explained to me that the AC-130 is considered a “first hit” weapon; its ordnance hits where it is designated to hit on the first try. The targeted hospital was marked by a U.S. Special Forces operator alongside the Afghans, using a laser. The AC-130 fired on the hospital for over one hour, in 15 minute paced barrages.

    How could the U.S. have known the target was a hospital? Easily. Kunduz had been controlled by the Afghans alongside their embedded Americans for some time. It was a mature battlefield, with landmarks such as the hospital well-known on the ground. In addition, NGOs employ organizations such as The International NGO Safety and Security Association (INSSA) specifically to coordinate with armed forces working around their sites, to include providing precise GPS coordinates to avoid “accidental” targeting. Doctors Without Borders also directly provides combatants their locations; in Kunduz, as recently as September 29.

    The latter details are especially important in evaluating strikes against hospitals and other civilian targets. Unlike in WWII when thousands of planes flew over cities hoping to hit a target only as precisely defined as “Tokyo,” modern ordnance is delivered by computer, using laser designation, satellite coordination, GPS systems and classified mapping tools.

    America blew up exactly what it aimed at in Kunduz.

    America’s Other Hospitals

    Kunduz was not America’s first hospital. The U.S. bombed a maternity hospital in Baghdad in 2003, a hospital in Rutbah, and stormed a hospital in Nasiriya. Shells hit the large Al Yarmuk Hospital in Baghdad. A hospital in Belgrade, former Yugoslavia, was bombed in the 1990s. In Hanoi, the United States struck the Bach Mai hospital — twice — during the 1972 “Christmas Bombing.” The United States also destroyed the Chinese Embassy in Belgrade in 1999, citing inaccurate maps as the cause.

    There are always investigations following such incidents, though in the history of modern American warfare none have ever been deemed such strikes as having been planned. Hospitals make attractive targets. Destroying them results in fighters dying of their wounds, and increases the burden on healthy soldiers, pulling them from the battlefield to care for their own wounded. In military terms that is known as a “soft kill.” Accidents emerge in war, but so do patterns.

    Civilian Deaths and the Drone War

    The killing of civilians as a result of American war is not limited to attacks on hospitals. The global drone war continues to take innocent lives, in what has come to be known without shame or irony as collateral damage.

    Even conservative estimates of the number of civilians killed by drone attacks targeted on others are suspect, given the secrecy under which the U.S. drone program operates. The analytically conservative Council on Foreign Relations tally assesses that 500 drone strikes outside of Iraq and Afghanistan have killed 3,674 civilians as of 2014. The count measures kills outside of Iraq and Afghanistan specifically because only those places are considered active war zones per se by the United States (known U.S. attacks inside Syria had not yet begun.)

    In Yemen, in just one example, American drone strikes aimed at 17 named men actually killed 273 people, at least seven of them children, including the American Citizen son of alleged al Qaeda propagandist Anwar al-Awlaki.

    But the killing of civilians as a result of American war is not limited to attacks on hospitals, or by drone.

    Tools of Destruction

    There is a commonality to the growing death count created by America and its allies: the inevitable civilian deaths caused by the profligate use of horrifically destructive weapons, especially inside urban areas.

    Civilian casualties overall in America’s 2003-2011 Iraq War were anywhere from 140,000 dead to upwards of 500,000, many by artillery, cluster munitions, and depleted uranium munitions, indiscriminate weapons unique to American forces.

    For its drone strikes, the U.S. uses Hellfire missiles, armed with warheads originally designed to burn through the heaviest tank armor. Aiming them at a person inevitably will kill others nearby; the U.S. claimed al-Awlaki’s son was killed inside a car, seated next to the actual target. Such deaths are also closely tied to America’s policy of “signature drone strikes,” where a missile is aimed at a “profile:” a suspect cell phone, a car matching some description, a suspicious gathering outside a home.

    America’s Allies

    America’s allies, equipped with American weapons, follow a similar pattern in their making of war.

    The U.S. throughout the Middle and Near East, the Saudis in Yemen and Israel in Gaza, employ cluster munitions in urban areas. Such munitions are known as “area denial weapons,” which cause massive, indiscriminate destruction over wide swaths of territory. Documented inside Yemen have been American-made CBU-52 cluster bombs, each loaded with 220 “anti-material” bomblets. Imagine the use of such weapons inside central London, or on a Manhattan street.

    Though not confined to cluster munitions alone, the deployment of U.S.-made weapons by the Saudis in Yemen has only added to the carnage. Almost 4,000 people have been killed, with 19,000 injured and more than a million displaced from their homes.

    In Gaza in 2009, the Israelis used cluster munitions, white phosphorus (a burning agent also used by the U.S. in Iraq), as well as standard artillery, rockets and airstrikes, all against dense urban areas. The UN estimates over 1,400 civilians, of whom 495 were children, were killed in the attacks. The Israelis also destroyed a hospital in Gaza, attacked two others, and shelled UN-run schools in 2014.

    The U.S., Israel and Saudi Arabia are among the countries that have refused to sign The Convention on Cluster Munitions, a treaty banning the use of such weapons.

    The Cost of Modern War

    Accountability remains in the hands of those with the weapons. America and Israel conduct self-investigations, and stymie independent ones, to clear their military of blame (the Saudi do not even appear to bother.) At the UN, the United States blocks action critical of Israel. In Yemen, the U.S. claims it cannot control how the Saudis choose to employ American weapons, and has stated the Saudi actions only “border on” violations of international law. NATO and the EU are deathly silent on the substantive issues, even in places where their own forces are on the ground.

    It is clear that modern war as conducted by the United States and its allies in the Middle East has as a known outcome massive civilian casualties. The sites purposefully targeted can be civilian when needed, in violation of all known standards of international law. The steady flow of “accidents” and collateral kills are fully-expected, inevitable and foreseeable consequences of the choice of weapons used.

    The civilian deaths are not accidental, but policy. Kunduz was no accident. It was simply another example.

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  • Quoted by the New York Times Sunday Magazine

    September 13, 2015 // 5 Comments

    Tags: , ,
    Posted in: Democracy, Post-Constitution America, Yemen

    al-awalki

    Before he was assassinated by a United States government drone under orders from Obama and in contemptuous disregard for the Bill of Rights, Fifth and Sixth Amendments, Anwar al-Awlaki was an American Citizen.

    I have written a fair amount about his death, one small piece of which was picked up by the New York Times Sunday Magazine:


    You can bomb a thing into oblivion, but you cannot blow up an idea. An idea can only be defeated by another, better idea. So killing al-Awlaki had no more chance of truly silencing him than turning off the radio and hoping the broadcast never exists elsewhere. In an environment where martyrdom is prized, America might begin to turn around its failures first by creating fewer martyrs.



    More on al-Awlaki elsewhere on this blog…



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  • Why the War on Terror is Failing

    August 31, 2015 // 8 Comments

    Tags: , ,
    Posted in: Iraq, Military

    al-awalki


    A well-done article in the New York Times reminds us that four years after the United States assassinated American citizen and Muslim cleric Anwar al-Awlaki (and his teenage son) in a drone strike, his influence on jihadists is greater than ever.

    At the same time, the UK’s Guardian tells us about William Bradford, an assistant law professor at West Point, who argued in a peer-reviewed paper that attacks on Muslim scholars’ homes and offices, Middle Eastern media outlets and Islamic holy sites are legitimate and necessary to “win” the war on terrorism.

    Bradford threatens “Islamic holy sites” as part of a war against radicalism. That war ought to be prosecuted vigorously, he wrote, “even if it means great destruction, innumerable enemy casualties, and civilian collateral damage. Other ‘lawful targets’ for the U.S. military in its war on terrorism,” Bradford argues, “include law school facilities, scholars’ home offices and media outlets where they give interviews, all civilian areas, but places where a causal connection between the content disseminated and Islamist crimes incited exist.”



    Illustrations of Failure

    The two articles illustrate as sharply as can be the failures of America in the last 14 years. Not only has the United States failed to blunt terrorism, Islamic State and radical hegemony, it has made them worse. Indeed, the foreign terror attacks so many Americans live in fear of have morphed into Americans themselves committing terror attacks. That is not progress.

    But that’s how the articles in the Times and the Guardian show the WHAT of failure. The WHY is also revealed: terror is an idea, not a thing.

    You can bomb a thing into oblivion, but you cannot blow up an idea. An idea can only be defeated by another, better, idea. So killing al-Awlaki had no more chance of truly silencing him than turning off the radio and hoping the broadcast never exists elsewhere. At the same time the U.S. runs social media campaigns claiming we are not at war with Islam, allowing an instructor at America’s military academy to justify attacks on the institutions of Islam simply reinforces the belief around the world that we are indeed trying to destroy a religion.

    In an environment where martyrdom is prized, America might begin to turn around its failures first by creating fewer martyrs. In an environment where radicalism and support for groups like Islamic State are fostered by fear that the full weight of the world’s most powerful army is aimed at destroying a way of life, America might want to stop teaching just that doctrine at West Point.



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  • House Passes Law to Revoke Passports of Americans Affiliated with Terror Organizations

    August 3, 2015 // 16 Comments

    Tags: ,
    Posted in: Democracy, Post-Constitution America

    passport revoked


    The House of Representatives quietly passed a bill at the end of July allowing the State Department to revoke or deny passports to Americans with connections to “foreign terrorist organizations.”

    The measure, which passed by a voice vote after only a 15-minute debate, in theory aims to prevent “lone wolves” from traveling abroad to join a terror organization, or, if their passports are revoked while they are abroad, from returning to the United States.

    “The Benedict Arnold traitors who have turned against America and joined the ranks of the terrorist army ISIS should lose all rights afforded to our citizens,” Ted Poe (R-Texas), the bill’s sponsor, said. “These people are not returning to America to open coffee shops, they are coming back to kill. We must stop them from coming back at all.”

    The full text of the three-page bill is quite open-ended as to how this process will work, stating the criteria only as “aided, assisted, abetted, or otherwise helped an organization the Secretary of State has designated as a foreign terrorist organization.”

    The travel restriction requires no presumption of innocence for the targeted individual, no explanation, no public presentation of evidence, no opportunity for a defense, no checks and balances on the power. The bill does not outline any appeals or other forms of due process for the target. The only stipulation is that the Secretary of State report the action to the Senate Committee on Foreign Relations and the House Committee on Foreign Affairs in either classified or unclassified form. Senate approval is required for the new bill to become law.


    The Bill represents another step for a government that increasingly seeks to control its citizens by arbitrary standards (see the No-Fly list). But the bill is evolutionary, not revolutionary.

    The Government of the United States has had for some time the ability to take away passports from American Citizens because “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.” That sliver of law means if the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows them to do this prospectively, the “or are likely to cause…” part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.

    The last public use of this law was in 2011, when prior to having him and his 16-year-old son away blown away via drone, Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen.


    I have been unable to track down other recent public examples where the U.S. Government revoked the passport of an American simply because his/her presence abroad bothered – or might bother – the Secretary of State. In fact, the only example I was able to locate was that of infamous ex-CIA officer Philip Agee, who in the 1970’s exposed CIA officers identities. It was Agee’s case that prompted a Supreme Court review of the Department of State’s ability to revoke passports simply because the government didn’t want you to travel abroad (the Supreme’s upheld the government’s ability to do so based on a 1926 law after lower courts said no.

    The Court stated “The right to hold a passport is subordinate to national security and foreign policy considerations.”



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  • Post-Constitutional America, Where Innocence is a Poor Defense

    July 30, 2015 // 3 Comments

    Tags: , , ,
    Posted in: Embassy/State, Post-Constitution America

    Rahinah Ibrahim is a slight Malaysian woman who attended Stanford University on a U.S. student visa, majoring in architecture. She was not a political person. Despite this, as part of a post-9/11 sweep directed against Muslims, she was investigated by the FBI. In 2004, while she was still in the U.S. but unbeknownst to her, the FBI sent her name to the no-fly list.

    Ibrahim was no threat to anyone, innocent of everything, and ended up on that list only due to a government mistake. Nonetheless, she was not allowed to reenter the U.S. to finish her studies or even attend her trial and speak in her own defense. Her life was derailed by the tangle of national security bureaucracy and pointless “anti-terror” measures that have come to define post-Constitutional America. Here’s what happened, and why it may matter to you.

    The No-Fly List

    On September 10, 2001, there was no formal no-fly list. Among the many changes pressed on a scared population starting that September 12th were the creation of two such lists: the no-fly list and the selectee list for travelers who were to undergo additional scrutiny when they sought to fly.  If you were on the no-fly list itself, as its name indicated, you could not board a flight within the U.S. or one heading out of or into the country. As a flight-ban plan, it would come to extend far beyond America’s borders, since the list was shared with 22 other countries.

    No one knows how many names are on it. According to one source, 21,000 people, including some 500 Americans, are blacklisted; another puts the figure at 44,000. The actual number is classified.

    On January 2, 2005, unaware of her status as a threat to the United States, Ibrahim left Stanford for San Francisco International Airport to board a flight to Malaysia for an academic conference. A ticket agent saw her name flagged in the database and called the police.

    Despite being wheelchair-bound due to complications from a medical procedure, Ibrahim was handcuffed, taken to a detention cell, and denied access to medication she had in hand. Without explanation, after extensive interrogation, she was allowed to board her flight. When she tried to return to America to resume her studies, however, she found herself banned as a terrorist.

    Suing the United States

    Stuck in Malaysia, though still in possession of a valid student visa, Ibrahim filed a lawsuit against the U.S. government, asking to be removed from the no-fly list and allowed back into the country to continue her architectural studies.

    Over almost nine years, the U.S. Department of Justice (DOJ) employed an arsenal of dodges and post-9/11 tricks to impede her lawsuit, including invoking the “state secrets doctrine” to ensure that she would never have access to the records she needed. “State secrets” is not a law in the U.S., as it is, for example, in Great Britain, where the monarch also retains “Crown Privilege,” the absolute right to refuse to share information with Parliament or the courts. Here, it is instead a kind of assumed privilege and the courts accept it as such. Based on it, the president can refuse to produce evidence in a court case on the grounds that its public disclosure might harm national security. The government has, in the past, successfully employed this “privilege” to withhold information and dead-end legal challenges. Once “state secrets” is in play, there is literally nothing left to talk about in court.

    A related DOJ dodge was also brought to bear in an attempt to derail Ibrahim’s case: the use of made-up classification categories that dispatch even routine information into the black world of national security. Much of the information concerning her placement on the no-fly list, for instance, was labeled Security Sensitive Information (SSI) and so was unavailable to her. SSI is among hundreds of post-9/11 security categories created via memo by various federal agencies. These categories, too, have no true legal basis. Congress never passed a law establishing anything called SSI, nor is there any law prohibiting the disclosure of SSI information. The abuse of such pseudo-classifications has been common enough in the post-9/11 years and figured significantly in the ongoing case of Transportation Security Administration (TSA) whistleblower Robert MacLean.

    Next in its end-run around Ibrahim’s lawsuit, the DOJ pulled “standing” out of its bag of tricks. Standing is a legal term that means a person filing a lawsuit has a right to do so. For example, in some states you must be a resident to sue. Seeking to have a case thrown out because the plaintiff does not have standing was a tactic used successfully by the government in other national security cases. The ACLU, for instance, sued the National Security Agency for Fourth Amendment violations in 2008. The Supreme Court rejected the case in 2013 for lack of standing, claiming that unless the ACLU could conclusively prove it had been spied upon, it could not sue. In the wake of the Edward Snowden revelations showing that the NSA indeed spied widely on American citizens, the ACLU has revived the suit.  It claims that the new documents provide clear evidence of broad-based surveillance and so now give it standing.

    Standing was also used by the DOJ in the case of American citizen and purported al-Qaeda member Anwar al-Awlaki, whom the U.S. murdered by drone in Yemen. Prior to his son’s death, attorneys for al-Awlaki’s father tried to persuade a U.S. District Court to issue an injunction preventing the government from killing him. A judge dismissed the case, ruling that the father did not have standing to sue.

    In Ibrahim’s no-fly case, the government argued that since she was not an American citizen, she had no standing to sue the government for its actions against her in the U.S. When all of those non-meritorious challenges failed to stop the case, the government invoked the very no-fly designation Ibrahim was challenging, and refused to allow her to travel to the United States to testify at her own trial.

    Next, Ibrahim’s daughter, an American citizen traveling on a U.S. passport, was not allowed to board a flight from Malaysia to serve as a witness at her mother’s trial. She, too, was told she was on the no-fly list. After some legal tussling, however, she was finally allowed to fly to “the Homeland.” Why the American government changed its mind is classified and almost all of the trial transcript concerning the attempt to stop her from testifying was redacted from public disclosure.

    In addition, by regularly claiming that classified information was going to be presented, the government effectively hid the ludicrous nature of the Ibrahim case from much public scrutiny. The trial was interrupted at least 10 times and the public, including journalists, were asked to leave the courtroom so that “classified evidence” could be presented.

    A message of intimidation had been repeatedly delivered. It failed, however, and Ibrahim’s case went to trial, albeit without her present.

    Ibrahim Wins

    Despite years of effort by the DOJ, Ibrahim won her lawsuit. The U.S. District Court for Northern California ordered the removal of her name from the no-fly list. However, in our evolving post-Constitutional era, what that “victory” revealed should unnerve those who claim that if they are innocent, they have nothing to fear. Innocence is no longer a defense.

    During the lawsuit, it was made clear that the FBI had never intended Ibrahim to be placed on the no-fly list. The FBI agent involved in the initial post-9/11 investigation of Ibrahim simply checked the wrong box on a paper form used to send people into travel limbo. It was a mistake, a slip up, the equivalent of a typo. There was no evidence that the agent intended harm or malice, nor it seems were there any checks, balances, or safeguards against such errors. One agent could, quite literally at the stroke of a pen, end someone’s education, job, and family visits, and there was essentially no recourse.

    Throughout the nine years Ibrahim fought to return to the U.S., it appears that the government either knew all along that she was no threat and tried to cover up its mistake anyway, or fought her bitterly at great taxpayer expense without at any time checking whether the no-fly designation was ever valid. You pick which theory is most likely to disturb your sleep tonight.

    Ibrahim Loses

    Having won her case, Ibrahim went to the airport in Kuala Lumpur to fly back to Stanford and resume her studies. As she attempted to board the plane, however, she was pulled aside and informed that the U.S. embassy in Malaysia had without notice revoked her student visa. No visa meant, despite her court victory, she once again could not return to the United States.

    At the U.S. embassy in Kuala Lumpur, Ibrahim was handed a preprinted “explanation” for the visa revocation with the word “terrorist” hand-written next to the boilerplate text. Ibrahim was never informed of her right under U.S. law to apply for a waiver of the visa revocation.

    Though it refused to re-issue the visa, the State Department finally had to admit in court that it had revoked the document based solely on a computer “hit” in its name-checking database, the Consular Lookout and Support System (CLASS.) That hit, in turn, appeared to be a straggler from the now defunct no-fly list entry made erroneously by the FBI.

    The State Department and CLASS

    As is well known, the State Department issued legal visas to all of the 9/11 terrorists. In part, this was because the CIA and other U.S. intelligence agencies failed to tell State what they knew about the hijackers, as all were suspected to be bad guys. Then and now, such information is passed on when intelligence and law enforcement agencies make electronic entries in State’s computerized lookout system. CLASS is part of the Consular Consolidated Database, one of the largest known data warehouses in the world. As of December 2009, it contained over 100 million cases and 75 million photographs, and has a current growth rate of approximately 35,000 records per day. CLASS also collects the fingerprints of all foreigners issued visas.

    Pre-9/11, various agencies in Washington were reluctant to share information. Now, they regularly dump enormous amounts of it into CLASS. The database has grown 400% since September 11, 2001.

    The problem is that CLASS is a one-way street. Intelligence agencies can put data in, but can’t remove it because State keeps the database isolated from interactive data maintenance. In addition, the basic database it uses to screen out bad guys typically only has a subject’s name, nationality, and the most modest of identifying information, plus a numerical code indicating why a name was entered. One code, 3B, stands for “terrorist”; another, 2A, means “criminal”; and so forth through the long list of reasons the U.S. would not want to issue a visa. Some CLASS listings have just a partial name, and State Department visa-issuing officers regularly wallow through screen after screen of hits like: Muhammad, no last name, no date of birth, Egypt — all marked as “critical, Category One” but with no additional information.

    Nor, when the information exists but was supplied by another agency, do U.S. embassies abroad have direct access to the files. Instead, when a State Department official gets a name “hit” overseas, she must send a “Security Advisory Opinion,” or SAO, back to Washington asking for more information. The recipient of that cable at Foggy Bottom must then sort out which intelligence agency entered the data in the first place and appeal to it for an explanation.

    At that point, intelligence agencies commonly to refuse to share more, claiming that no one at State has the proper clearances and that department should just trust their decision to label someone a bad guy and refuse to issue, or pro-actively revoke, a visa. If, on the other hand, information is shared, it is often done on paper by courier. In other words, a guy shows up at State with a bundle of documents, waits while someone reviews them, and then spirits them back to the CIA, the FBI, or elsewhere. That way, the intelligence agencies, always distrustful of State, are assured that nothing will be leaked or inadvertently disclosed.

    In cases where no more information is available, or what is available is inconclusive, the State Department might allow the visa application to pend indefinitely under the heading “administrative processing,” or simply “prudentially” revoke or not issue the visa. No one wants to risk approving a visa for the next 9/11 terrorist, even if it’s pretty obvious that the applicant is nothing of the sort.

    This undoubtedly is what happened to Ibrahim. Though the details remain classified, State certainly didn’t possess super secret information on her unavailable to other law enforcement or intelligence outfits. Some official surely decided to take no chances and revoked her visa “prudentially” based on the outdated information still lodged in CLASS.

    Not CLASS Alone

    Ibrahim’s case also reveals just how many secret databases of various sorts exist in Washington. Here’s how a name (your name?) gets added to one of those databases, and how it then populates other lists around the world.

    A name is nominated for the no-fly list by one of hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer. Each nominating agency has its own criteria, standards, and approval processes, some — as with the FBI in Ibrahim’s case — apparently pretty sloppy.

    The nominated name is then sent to the Terrorist Screening Center (TSC) at a classified location in suburban Northern Virginia. TSC is a multi-agency outfit administered by the FBI and staffed by officials from the Department of Homeland Security, the Department of State, and all of the Intelligence Community.

    Once a name is approved by the TSC (the process is classified), it will automatically be entered into a number of databases, possibly including but not necessarily limited to:

    *the Department of Homeland Security’s no-fly list;

    *that same department’s selectee list that ensures chosen individuals will be subject to additional airport screening;

    *the State Department’s Consular Lookout and Support System (CLASS, including CLASS-Visa for foreigners and CLASS-Passport for U.S. Citizens);

    *the Department of Homeland Security’s TECS (a successor to the Treasury Enforcement Communications System), which is used in part by customs officials, as well as its Interagency Border Inspection System (IBIS), used by immigration officials;

    *the Known and Suspected Terrorist File (KSTF, previously known as the Violent Gang and Terrorist Organizations File);

    *TUSCAN, a database maintained by Canada;

    *TACTICS, a database maintained by Australia;

    *and finally, an unknown number of other law enforcement and intelligence agency databases, as well as those of other foreign intelligence services with which information may be shared.

    As Ibrahim discovered, once a name is selected, it travels deep and far into both U.S. and foreign databases. If one clears one’s name from one database, there are many others out there waiting. Even a comprehensive victory in one nation’s courts may not affect the records of a third country. And absent frequent travel, a person may never even know which countries have him or her on their lists, thanks to the United States.

    Once she learned that her student visa had been revoked in Malaysia, Ibrahim sued again, asking that the State Department reissue it. The government successfully blocked this suit, citing a long-established precedent that visa matters are essentially an administrative function and so not subject to judicial review.

    A court did scold State for failing to notify Ibrahim of her right to seek a waiver, as it was required to do by law. To the extent that Ibrahim’s case has any life left in it, her next step would be to return to the Department of Justice’s bailiwick and apply for a waiver of the revocation the State Department made based on data given to it by the DOJ that both outfits know was struck down by a court. It’s that “simple.” Meanwhile, she cannot return to the U.S.

    Nothing to Hide?

    A common trope for those considering the way the National Security Agency spies on almost everyone everywhere all the time is that if you have nothing to hide, you have nothing to fear. If your cell phone conversations are chit-chats with mom and your emails tend toward forwards of cute cat videos, why should you care if the NSA or anyone else is snooping?

    Ask Rahinah Ibrahim about that. She did nothing wrong and so should have had nothing to fear. She even has a court decision declaring that she never was nor is a threat to the United States, yet she remains outside America’s borders. Her mistaken placement on the no-fly list plunged her head first into a nightmarish world that would have been all too recognizable to Franz Kafka. It is a world run by people willing to ignore reality to service their bureaucratic imperatives and whose multiplying lists are largely beyond the reach of the law.

    Sad as it may be, the Ibrahim case is a fairly benign example of ordinary Washington practices in the post-9/11 era. Ibrahim is going about her life at peace in Malaysia. Her tangle with the United States seems to have been more a matter of bureaucratic screw-ups than anything else. No one sought to actively destroy her. She was not tortured in a CIA black site, nor left for years in a cage at Guantanamo. Her case is generally seen as, at worst, another ugly stain on the white wall we imagine we are as a nation.

    But the watch lists are there. The tools are in place. And one thing is clear: no one is guarding the guards. You never know whose name just went on a list. Maybe yours?


    [Note to Readers: You can fact-check this one by reviewing the same sources I drew from via links in the piece. Since many of the facts of Ibrahim’s case come from her suit against the Department of Homeland Security, however, I have limited the repetition of that link for ease of reading.  You can find it by clicking here.]





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  • What ISIS Gained by Burning a Man Alive

    February 18, 2015 // 5 Comments

    Tags: , ,
    Posted in: Iraq, Syria, Yemen

    japan isis4.jpg

    A few weeks ago, did the majority of the world know the Japanese prime minister pledged $200 million in “humanitarian aid” in the war against ISIS? Or that two Japanese citizens had been held as hostages for months? Or that ISIS also held a Jordanian pilot? Or, since 2005, Jordan had been holding a failed al Qaeda female suicide bomber on death row?

    The world knows now. With three killings, the Islamic State sent its messages viral, and watched them pay off in strategic gains.



    What ISIS Accomplished

    Last month in Iraq, 2,287 people were killed. No one knows how many died in the same time span in Syria and other “war on terror” hot spots. Little seems to have changed for it all. Yet, via skillful manipulation of the global media, here is some of what Islamic State accomplished via taking three lives in such a gruesome manner:

    — Islamic State humiliated two U.S. allies. Both sought to negotiate with the militants and both were shown to be weak and ineffectual.

    — The United States, which remained silent, absent the usual tropes about evil, was shown as ineffectual in being able to help its allies.

    — A key U.S. partner, the United Arab Emirates, announced — based on the Jordanian pilot’s capture alone — that it was suspending airstrikes unless the U.S. stationed search and rescue teams inside Iraq. The U.S. quickly announced it was doing just that, raising its on-the-ground footprint. Keeping partners in the game is crucial to maintaining the dubious claim that efforts against Islamic State are anything but an American campaign. Even with the UAE, estimates are that the U.S. conducts some 80 percent of the airstrikes itself.

    — The Japanese and Jordanian governments have vowed revenge, drawing them deeper into the conflict while bringing their domestic debates over the propriety of supporting what many see as America’s war into the open. Conservative Prime Minister Shinzo Abe is seizing this moment to try and push through a controversial change to Japan’s pacifist constitution. Blood always runs hot at first; it remains to be seen how many additional deaths of its own citizens a society will tolerate in the name of revenge. Will the hyper-macho images of Jordan’s king wearing a flight suit come to be seen in the same way that George W. Bush’s images of himself in a flight suit now are?

    — The Jordanians executed a Sunni Muslim woman, martyring her and giving new voice to her cause.

    — ISIS successfully kicked off another cycle of revenge in an area of the world where such cycles can become perpetual motion engines. America cannot help but be drawn deeper into this quagmire as it struggles to hold its limited coalition together. President Barack Obama has already announced an increase in annual aid to Jordan from $660 million to $1 billion.

    — To its core recruitment audience, who believes in violent jihad, Islamic State saw one of its most barbaric videos broadcast globally. Islamic State is far less concerned about those shocked by the video than it is about those who will join its struggle because of the video.
    War of ideas

    — Islamic State understands that it is waging a war of ideas, and that ideas cannot be bombed away. There is no victory or defeat per se in such a war, just struggle in epic terms.

    The Charlie Hebdo killers appeared to have been inspired by American citizen cleric Anwar al-Awlaki, whom the U.S. assassinated in 2011. And for all that al Qaeda has been degraded, Islamic State has arisen as its spawn. That dead men inspire living acts of horror shows that unless the fundamental ideas driving Islamic militants are addressed, there will be no end.

    The Heisenberg Effect

    Absent Jordan, the bulk of the Arab world reacted to the Islamic State video with firm statements, and no action. Somehow, that remains primarily in the hands of an America that cannot seem to understand how its very presence in the Middle East exacerbates conflict.

    Robert Pape and James Feldman, in Cutting the Fuse: The Explosion of Global Suicide Terrorism and How to Stop It reviewed 2,100 suicide bombings in the Middle East from 1980 to 2009. They conclude most were fueled by U.S. intervention.

    And there has been plenty of fuel for those who fan the flames. Syria became the 14th country in the Islamic world that U.S. forces invaded, occupied or bombed, and in which American soldiers have publicly killed or been killed, since 1980. This history suggests what one Marine officer called in the Small Wars Journal the Heisenberg Effect, after the physics theorem that states the presence of an observer affects the event being observed.

    Any Ideas?

    America’s track record in the “war on terror” is a poor one, the ISIS video only the latest bit of evidence. You can’t shoot an idea. You defeat a bad idea with a better one. Islamic State has proven terribly effective with its bad ideas; on the American side, more than 13 years after 9/11, we need to ask, so what do you have to offer?



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  • Can the US Seize Would-Be Jihadis’ Passports?

    October 24, 2014 // 2 Comments

    Tags: , ,
    Posted in: Democracy, Embassy/State, Post-Constitution America, Yemen




    The person who shot up the Canadian Parliament had had his passport taken away by the Canadian government, ostensibly to prevent him from traveling to Syria to join ISIS


    Can the U.S. government seize the passports of American citizens who it believes may travel abroad to join ISIS or other terror groups? Yep. The process is almost no-cost to the government, extra-judicial, can be made secret and requires a lengthy court process to even try to contest. No passport, no international travel, the ultimate no-fly tool against would-be jihadis. So why hasn’t this process been used more often?


    Scary Stories

    Leaving aside the not-insubstantial questions about their validity, the warnings are ominous.

    With some Americans seeking to join ISIS, there are fears that on their return they may commit terror in the U.S. Unlike foreign citizens, these radicalized Americans would sail through immigration checks and be able to easily disappear into a familiar society. The U.S. is seeking to tackle the problem at the supply end, preventing Americans from departing to join ISIS in the first place, as well as from the other side, blocking citizens from returning freely to the United States.

    The arrest at O’Hare airport of Mohamed Khan, a 19-year-old U.S. citizen, is one example. Authorities claim the young man headed to the Middle East to join ISIS, and, citing a left-behind note explaining his choice, waited at the airport to arrest Khan on charges of attempting to provide material support for a terrorist organization. The operation involved significant law enforcement resources to stop one teenager based largely on suspicion.


    Another Tool in the Box

    The United States can simply seize passports from American citizens if “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”

    The law allows this prospectively, the “or are likely to cause” part of the law, meaning the person needn’t have done anything. The government just needs to think they might.

    A Judicial Watch Freedom of Information Act request revealed that prior to Obama ordering him and his 16-year-old son to be killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, alleged al Qaeda propagandist and U.S. citizen. The two would not have been able to travel to the United States without handing themselves over to law enforcement. Indeed, a letter to that effect was allegedly sent to some address in Yemen inviting al-Awlaki to visit the American Embassy to discuss the details.

    Al-Awlaki isn’t the only person in Yemen to have his U.S. passport seized.

    According to information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American embassy in Sanaa, Yemen seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports) between 2011 and 2013. Only after several legal battles did the State Department curtail its actions. Though State publicly claims the seizures were an anti-fraud measure, many in the Yemeni community saw them as a pilot program.

    A similar case involved the seizure of a Moroccan-American’s passport in Kuwait.

    The actions at the American embassy in Yemen may fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. “Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism,” an Australian government spokesperson said. “It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country.”


    How are Passport Seizures Legal?

    Restrictions on travel suffered under the British were part of the list of “injuries and usurpations” in the Declaration of Independence. So don’t Americans have a right to travel?

    Nope. The precedent was set by infamous ex-CIA officer Philip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly affirmed that “The right to hold a passport is subordinate to national security and foreign policy considerations.” A lower court put it even more bluntly: “The Secretary [of State] may preclude potential matches from the international tinderbox.”

    The basic premise is that travel abroad (travel within the U.S. is specifically provided for in the Constitution, though the No-Fly list certainly can limit one’s options) is that it is an “aspect” of liberty subject to restraint under due process. In the 1950’s, American Communists were often denied passports if their travel abroad was believed to be in support of their political beliefs, a policy later overturned by the Supreme Court. The Court struggled to balance national security and personal liberty regarding travel through multiple cases, but has never concluded that travel– or having a passport– is a fundamental right.


    Some History

    The whole concept of Americans requiring passports to travel has its roots in national security restrictions. With the exception of roughly the years of the Civil War and World War I, Americans did not need a passport to enter the United States. Americans were first required as a group to hold passports at the start of the Second World War. The travel requirements instituted in the past only during times of national crisis stuck around after WWII through the present day, formalized in the Immigration and Nationality Act of 1952. With echoes of current government actions, what was created as a wartime contingency morphed into a permanent peacetime restriction. The history of passport restrictions is not long, but does resonate into the post-9/11, Post-Constitutional era.

    While no right to travel per se exists for Americans, there is a basic assumption, rooted in the Citizenship Clause of the Fourteenth Amendment and the due process clause of the Fifth Amendment to the Constitution that Americans have something between an expectation, an entitlement and an implied right to return to the United States from abroad, rooted in the concept of citizenship. The ease with which passports can be seized (or boarding an aircraft denied via the No-Fly list) is not seen in conflict; in al-Awlaki’s case, he would have been welcome to come home, albeit in leg irons en route to federal SuperMax. Time is also an issue. How long the government may make a citizen wait before allowing a return to the U.S. under some specific circumstances is not codified and thus can be used as a de facto seizure or punishment without raising a case publicly.


    Why Doesn’t the Government Seize More Passports?

    In short, for an American citizen to travel abroad, whether for vacation or jihad, the government’s permission, in the form of a passport, is required. So why then does the government not use such a long-tested authority to deny or seize the passports of those suspected for traveling to join terror groups?

    While the real answer is obviously unknowable, several ideas may help explain this. First is that in fact such measures might be taking place. Persons who have not yet applied for a passport may find themselves denied issuance, and applications may have been denied or “in processing” without the applicant knowing the reason. The government is under no obligation to tell the person involved nor the media that national security has been invoked.

    More likely however, it is a matter of legal timidity and public relations. Arresting and trying someone for material support for terrorism is something of a set-piece case for post-9/11 law enforcement. There is little legal controversy generated, and almost no danger under present circumstances of any nasty precedent being set. Wide-spread passport seizures could easily create a new chance to bring the issue before the Supreme Court, risky business for a government that much prefers to act as it wishes vis-vis American’s rights.

    The other reason for restraint may simply be public relations. The public is familiar and appears supportive of arrests. Law enforcement in these circumstances are the good guys. Passport seizures sound a bit harsh, totalitarian-like, and are technically done under the authority of the Department of State, who does not enjoy the good guy reputation many attribute to the law enforcement people who “keep us safe.” It could be as simple as law enforcement not being willing to work with the State Department for bureaucratic reasons.

    Regardless, these are dark seas. In a democracy, the right of citizens to depart and return should not on its face be restricted in the interest of the government. The idea of limiting an American citizen’s travel proactively, on the assumption that she or he will end up fighting with ISIS based on documents or web postings, scrapes at liberty, even if the tools are there and it is legal to use them.



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  • I Read al-Qaeda’s Inspire Mag So You Don’t Get Arrested

    October 10, 2014 // 3 Comments

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    Posted in: Afghanistan, Iraq, Syria, Yemen



    Inspire is an English language online magazine published since 2010 by al-Qaeda in the Arabian Peninsula. I just read the latest issue so you won’t get arrested doing so.

    Aimed primarily at radicalizing youth audiences in the U.S. and Britain, the mag appears semi-regularly (twelve issues so far) online only, as a PDF, and is entirely in English. Graphically well-done, the editorial parts of the magazine shift among sometimes bad-English reporting, religious and jihadi-inspirational pieces, and bomb making instructions.

    Yeah, bomb making instructions. That’s the part that sort of is controversial, the clear, step-by-step photo-illustrated instructions for making your own explosives using common materials, plus the encouragement to use them in crowded places.

    Inspire and al-Awlaki

    The magazine was once thought to be the work of Anwar al-Awlaki, an American citizen who once preached at a Northern Virginia mosque and lunched at the Pentagon, gone-bad.

    Though al-Awlaki and his teenage son were assassinated by a U.S. drone in Yemen in 2011, thus ending his editorship, the magazine continues to be published. Al-Awaki’s thoughts are reprinted posthumously and still carry influence. That tells you pretty much all you need to know in two sentences about the failure of the war on terror.

    Disclaimer

    Because reading/possessing Inspire may be illegal in the UK and Australia, and viewing it online in the U.S. likely to land you on some sort of watch list or another, I’ll just offer the one link here to the full text if you want to read the whole thing. For me, if I’m not on some list already I haven’t been doing my job and should just go back to my true passion, Little House on the Prairie fan fiction.

    Inside the Spring 2014 Inspire Mag

    Things begin straight-forward enough with a note from the editor:

    The American government was unable to protect its citizens from pressure cooker bombs in backpacks, I wonder if they are ready to stop car bombs! Therefore, as our responsibility to the Muslim Ummah in general and Muslims living in America in particular, Inspire Magazine humbly presents to you a simple improvised home recipe of a car bomb. And the good news is… you can prepare it in the kitchen of your mom too.

    To be fair, the kitchen of your mom has to be stocked with some pretty unusual stuff to pull this off, but we’ll get to that in a moment.

    There follows some quotes by famous people on news topics, most predictable. But one by a Muslim college student in the U.S. stands out:

    I remember I had one professor that said that if he was in Iraq, he’d probably be on the other side. And I remember I was just looking at him thinking I’ll be in jail if I thought that.

    A quote by another leaves you with the uncomfortable impression that these guys “get it,” saying the things we just don’t hear from our own media:

    If we don’t change our stupid foreign policies, there will sooner or later be many more people overseas wishing to do this country harm! We’re already the most hated country in the world and through our own stupidity that will only get worse. Moreover, we’re spending ourselves into oblivion over this!

    So while there is plenty of bloody jihad stuff written in Borat-level English, it isn’t all that way in Inspire. One wonders if this approach, accidentally humorous and purposefully serious, is not actually an effective way to speak to disaffected youth.

    Dog Food

    Despite my promise to you, I did not actually read every word of articles that began “Twelve years have passed since the blessed Battles of New York, Washington and Pennsylvania…” or asked “Is the modern Buffalo soldier worth a Labrador? Would the U.S. Army at least honor them with Dickin Medals?”

    I sort of can figure out without getting 800 words in what the point of a piece that asks “Isn’t it saddening that Bo, Obama’s dog, dines with the tax payers’ money on better food than that of 100 million Americans?” But hah, Inspire, got you there. A lot of lower-income Americans are forced to eat the same dog food Bo does!

    Salty Obama

    And see if you can puzzle out this one:

    Obama is like a very thirsty patient that suffers from high blood pressure. As he becomes thirstier he finds a cup of salty water with salt crystals visible. To make the water drinkable, he has to get rid of the salt. So he stirs the water. As he stirs, the salt begins to disappear, this makes him very happy. Yes, the salt disappeared from sight, but the taste of the water became saltier. This is exactly what Obama is doing by the use of unmanned drones.


    Bombs

    Things alternate like that for most of the magazine, kind of thoughtful stuff, weird unintelligible stuff, sort of parable, sort of makes sense maybe stuff, a lot of anti-Semitism and rants intermingled with Quranic quotes. But things get deadly serious when the topic turns to making and employing car bombs.

    The magazine explains the bomb making instructions are “open source jihad,” to allow persons via the web to “prepare for jihad,” all from the comforts of home. I am not a chemist, but the details seem easy to follow, broken down into steps with photos to illustrate. Theory is tagged on to the practical; how explosive combustion works, how pressure is measured and so forth. Different ignition switches are discussed, depending on whether you seek a timed explosion or intend a suicide attack where you’ll trip the bomb manually.

    You turn away with the impression that this is something simple enough that you could probably make it work.

    It is made clear the type of bomb you’ll be making is aimed at destroying people, not buildings, and advice is given accordingly.

    Closing the Pages

    It would be unfair to close the pages of Inspire and say I felt anything but creeped out. I’ve tried to come up with something more intelligent sounding, but what starts as a laugh ends very seriously. Someone was very effective at making me walk away thinking they want to kill me.

    So when you read other versions of what’s in Inspire, most of which focus on creating their own, new levels of fear-mongering or in belittling the magazine as “clumsy,” spare a thought to what the magazine is really achieving: it makes you afraid. That’s what good propaganda does, effectively get inside your head. Inspire is good propaganda.



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  • Book Review: Agent Storm, My Life Inside al Qaeda and the CIA

    September 10, 2014 // 9 Comments

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    Posted in: Afghanistan, Iraq, Libya, Syria, Yemen

    Agent Storm: My Life Inside al Qaeda and the CIA is a worthy read; if it was fiction it might be called “a good yarn.” The book is instead straight-up non-fiction, making it all the more interesting as a window into the world of modern espionage.

    An Enthusiastic Muslim

    The book is the “as told to” autobiography of Morten Storm. Storm grew up on the dark side of Denmark, a tough, a brawler, a street gang member who always looked for a fight and usually found one. He did some jail time, and lived on the outskirts of society, surviving well enough off Denmark’s generous social welfare system. Socially and spiritually adrift, he was a quick convert to Islam, driven into his new faith by a chance encounter with a library book on the life of The Prophet. The descriptions of the built-in camaraderie of the mosques shows their appeal to disenfranchised youth.

    Storm quickly found a way to combine his street smarts with his new faith, gravitating into the growing European jihadi underground. He soon moved to the UK, taking up life in “Londonistan,” the slang term for England’s dark underbelly of Muslim immigrants. Like them, Storm felt marginalized, left out, looked down on and began moving in ever-more radical circles. Despite his over six foot height and bright red hair, he found himself well-accepted. An encounter with a fellow Muslim, who died almost in his arms, propelled Storm to Yemen in search of meaning for his own life. His devotion to Islamic studies and his tough attitude saw him befriended not just by his classmates, but soon by Anwar al-Awlaki himself. Storm takes on all sorts of courier missions for the cleric and becomes a member of his trusted inner circle.

    A Double-Agent

    Another chance event suddenly has Storm again reverse course. He falls in with Danish intelligence and Britain’s MI5/MI6 and becomes a double-agent. His second conversion is marked by a bacon sandwich and a beer with his new intel friends to seal the deal. He begins accepting money and taskings from both the British and the Danes.

    Storm quickly becomes invaluable, exploiting his connections with al-Awlaki and apparently nearly every significant jihadi in Europe to the advantage of his handlers. He finally attracts the attention of the CIA, which dispatches case officers to work with him toward one goal: pinpoint the location of al-Awlaki so the Americans can assassinate him. Storm agrees and over a series of events, the American citizen cleric is indeed assassinated by an American drone (along with his 16 year old son, also a U.S. citizen.) The CIA, however, double-crosses Storm, denies him the $250,000 payment promised for his work and eventually drives the big Dane in from the cold. His last conversion is to go to the media with his tale, and leave the world of espionage behind.

    Tradecraft

    Without a doubt the very best parts of the book expose a bit of intelligence tradecraft. Unlike what one sees in movies and reads in (fictional) spy books, “spying” is 90 percent working patiently with people, with just a little high-tech thrown in. The book portrays this accurately, showing the best spies are more like skilled psychiatrists than hardened killers. A few details of the recruitment process appear to have been left out, perhaps for security reasons, perhaps because of the unusual three-way sharing of Storm. In real life, case officers of the CIA (the KGB, the Danish security services, MI5/MI6…) spend a lot of time seeking out people (“agents”) who can be convinced to betray their organization or nation. Motives vary, and a smart case officer will pay close attention to what his/her agent really wants– money, adventure, sex, etc. We watch as Storm is cleverly manipulated with both money and the lure of adrenaline rushes, and as his failed fervor for Islam and desire to provide for his family is worked against him.

    Of equal interest are the contrasts drawn among the three services involved in handling Storm. The Danes are friendly, clubby, out for a good time even as they subtly draw Storm in and play him off against the Brits and the Yanks. The British impress with their professionalism and appeal to Storm’s sense of adventure, setting him up for sessions in arctic survival with an ex-Royal Marine and shooting lessons with an SAS man.

    Then there is the CIA. Storm saves the Americans for his most unflattering portrayal, painting them as impatient, and ready to hand over obscene amounts of money when needed, only then to double-cross their “man” inside al Qaeda when needed. The CIA has another agent, secretly, alongside Storm and never even feigns to trust either of them. The CIA’s simplistic and crude handling is one of the main drivers behind Storm’s break with the intel world.

    A Few Criticisms

    A few criticisms mark an otherwise decent read. Storm is not shy about his own accomplishments, taking personal credit for a number of significant intelligence successes during the years he worked as a double-agent. One does wonder how accurate such an accounting is, suggesting as it does that the combined European and U.S. spy agencies had very few other people on the inside. Storm is also quite casual, almost dismissive, about how easy it was for him to gain the complete trust of hardened terrorists, despite his very recent infidel past and quick conversion to Islam. The bad guys never really put his allegiance to the test absent a few word games, leaving the question of if al Qaeda’s operational security is really so lame why the intel agencies did not have hundreds of inside men and women. Apparently one need only send the average red-haired European Viking into Yemen claiming he is a recent Muslim convert and bam! you have infiltrated the world of terror.

    Conclusion

    Storm’s own blustery self-image and the bit of unrealness noted aside, Agent Storm: My Life Inside al Qaeda and the CIA is a decent read for anyone watching the world of intelligence who also appreciates a good story.




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  • Dead Is Dead: Drone-Killing the Fifth Amendment

    July 25, 2014 // 7 Comments

    Tags: , , ,
    Posted in: Democracy, Embassy/State, Post-Constitution America



    You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.

    Due Process in Constitutional America

    Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.

    Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.

    Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”

    The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.

    Al-Awlaki’s Death

    On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.

    In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.

    In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)

    The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.

    Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.

    Death by Pen

    For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.

    The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.

    When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.

    The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.

    The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.

    Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.

    What Do Words Mean in Post-Constitutional America?

    Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.

    The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.

    And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law  — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.

    For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.

    Principles

    Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.

    As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.

    Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.

    The Kind of Country We Live In

    We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.

    In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.




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  • Here’s How it is Legal for the Government to Kill an American Citizen

    July 7, 2014 // 12 Comments

    Tags: , , , , ,
    Posted in: Democracy, Post-Constitution America




    When you are saying something true, pure, clean and right, you often do not need many words. Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity. Americans may not “…be deprived of life, liberty, or property, without due process of law.”

    There are no footnotes in the Fifth Amendment, no secret memos, no exceptions. Those things were unnecessary, because in what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government was made up of us, the purpose of government was to serve us, and the government was beholden to us. Such a government should be incapable of killing its own citizens without an open, public trial allowing the accused to defend him/herself.

    Oh how times have changed.

    Killing an American

    On September 30, 2011 a U.S. drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States. A few days later the U.S. also killed al Awlaki’s 16 year old American Citizen son. Al Awlaki had once been a friend of the American military, invited in the aftermath of 9/11 to speak and lunch at the Pentagon. A few years later, al Awlaki was connected by the same U.S. government to al Qaeda, apparently mostly as a propagandist who may or may not have taken on an online role in persuading other Westerners to join the cause.

    In 2012 Attorney General Holder said of the al Awlaki killing and the Fifth Amendment “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” It was unknown at the time, but Holder was referring to a secret white paper prepared by the Office of the Legal Counsel laying out the legal justification for the U.S. government to kill one of its own citizens extrajudicially, in apparent violation of the Fifth Amendment.

    Orwellian Legality

    A hallmark of Post-Constitutional America, of which the U.S. government killing its own citizens without due process by drone surely is a part, is the manipulation of existing rights and laws without just doing away with them. Unlike national security states and tyrannies of the past, which overtly declared constitutions and laws obsolete and crumpled up the parchment, America’s new state twists the old into something new, and sinister.

    After a long legal battle to keep secret the underlying “legal” basis for its killing of al Awlaki (and others in the past, or to come?), the Obama administration released in June 2014 a redacted text of the Office of Legal Counsel’s white paper drawn up to justify the action. With some irony, the release of the 2010 document was facilitated by the Obama administration’s desire to placate senators reluctant to approve the memo’s author, David Barron, to serve on the First Circuit Court of Appeals (Barron was indeed approved.)

    Reading the Kill Justification Paper: Death, With a Stroke of a Pen

    Here’s what the kill white paper says in order to make legal the killing of an American Citizen by his/her government without trial (the full memo is here.)

    The essential element for the kill to be legal, the document says, is “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” (Also, capture must be found to be unfeasible, and the kill must follow the existing laws of war.)

    The rest of the justification simply flows from there in a perverse chain of logic: the president has the obligation to protect America, al Qaeda or its like are a threat, Congress has authorized war against al Qaeda, and being in al Qaeda is more relevant than whatever citizenship the target may hold or where s/he is located (“citizenship does not immunize the target.”) Basically, it is all simply an extension of the idea of self-defense. International borders and other nations’ sovereignty are not an issue if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.”

    The Balancing Test

    The Fifth Amendment right to due process, and perhaps to a lesser extent, the Fourth Amendment right against unwarranted seizure (i.e., a life) are dismissed casually in the white paper by a claim that the U.S.’ interest in “forestalling the threat of violence and death to other Americans that arises” trumps any constitutional rights for the individual. This is described as part of the traditional Fifth Amendment “balancing process.”

    The balancing process cited as conclusive enough to justify the extrajudicial killing of an American comes, according to the kill white paper, stems from a 1976 Supreme Court case, Mathews v. Eldridge, 424 U.S. 319 (1976), where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. Stick with me on this.

    The balance test for the Fifth Amendment to apply as laid out in that case has three components [notes added]:

    (1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen]

    (2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, the impossibility of ever “correcting” the mistake. The Court held that “If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited.” So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more process needed.]

    (3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state’s interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his/her side presented by a lawyer, is not addressed in the kill white paper]

    In short, the balancing test says that in some situations, where the government’s interest overshadows an individual’s interest, and the individual interest isn’t that big of a deal, and where a mistake by the government can be fixed, the full due process clause of the Fifth Amendment may not have to apply.


    An Imbalance

    The kill white paper draws heavily on the case Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan an American citizen and sought to detain him indefinitely without trial as an enemy combatant.

    After a long legal battle that went to the Supreme Court, the three-part balance test of Mathews v. Eldridge was decided to apply to the case and allow the U.S. to limit– but not fully do away with as in the drone killings– the due process to be received. The most important point here is that despite limiting his rights, the Court was clear that the prisoner Hamdi should have a meaningful opportunity to challenge his enemy combatant status.

    Interestingly, likely to avoid a court challenge to the conditions of this detention and the exposure of whatever details of his capture and possible torture might come out, the U.S. government released Hamdi without charge and forcibly sent him, an American citizen, to Saudi Arabia, and required him then to “voluntarily” renounce his U.S. citizenship. Of course the deportation and renunciation are themselves of dubious constitutionality; U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad.

    That the kill white paper makes much of the Hamdi case suggests the lack of sound legal argument. Claiming killing an American by his/her own government without trial is allowed by the balance test, the white paper ignores the fact that Hamdi was not killed. A mistake in his case can be largely corrected, possibly in the future as a result of a court appeal, simply by reinstating his U.S. citizenship and allowing him to return to the U.S.

    A broader critical issue not addressed in the kill white paper is that Hamdi’s case deals with (albeit serious) administrative questions, such as should he be allowed a trial and if so under what conditions. The government never proposed a death sentence for Hamdi. The underlying case the kill white paper bases its whole argument on, Mathews v. Eldridge, deals with relatively routine administrative government procedures, and certainly not ones of life and death of a citizen. The case was of course about denied Social Security benefits.

    What Do Words Even Mean Anymore?

    With significant constitutional issues dispensed with via some dubious logic and creaky legal citations, the kill white paper returns to its base premise, that a kill is legal when “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.”

    The white paper does not identify what level of proof is needed to meet the test of “informed” and it does not explain who is and is not a “high level official of the U.S. government” for the purposes of killing an American.

    The paper does spend a fair amount of time explaining how the standard dictionary definition of “imminent” does not apply here. The paper says for kill purposes the U.S. need not actually have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” Instead, imminent can mean a person such as al Awlaki is generally engaged in planning attacks that may or may not possibly be launched until years from now, or that may or may not happen at all. The paper says that since al Qaeda would prefer to continually attack the U.S., essentially any action, planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack and allows for a legal kill of an American citizen by the government.

    And if somehow all that is not enough, the white paper also invokes the “public authority justification.” This concept says that public authorities can sometimes violate the law– a cop can justifiably shoot and kill an armed bad guy in some circumstances, and it’s a lawful kill. By extension, the government of the United States can drone down a citizen because s/he is allegedly a member of al Qaeda. The white paper does not address the fact that police shootings in the U.S. are subject to investigation and judicial review, and cops who commit an unlawful kill can face punishment.

    None of this Can be Challenged in Court

    The white paper also makes clear its conclusions cannot be challenged in any court. Courts have almost always refused to intervene in cases of “foreign policy,” holding constitutionally that is the realm of the Executive in consultation as required with Congress. Killing Americans, the white paper says, is a foreign policy act and thus none of any courts’ business. The issue of the white paper citing several court decisions to justify the killings while claiming the killings are not a court matter is not addressed.

    Comment

    It should be obvious that the kill white paper, ostensibly the result of some of the best legal thinking available to the White House, wouldn’t get a C- for a first year law student. The arguments are weak at best, the legal cites and logic rarely directly support the rationale, and the entire document seems a shaky attempt to justify however it can a pre-determined premise. The vagueness of word usage, the key terms left undefined, the odd definitions of common words like “imminent” employed, all strain against reality.

    Yet despite all this (and keep in mind portions of the paper were redacted, there may be more legal falsities not yet seen), the sixteen pages described above were considered enough in Post-Constitutional America for president Obama to justify pushing aside the Fifth Amendment, ignoring due process, and ordering the death of an American citizen.

    Oh how times have changed.



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  • EXCLUSIVE: State Department Seizing U.S. Passports in Yemen

    December 5, 2013 // 18 Comments

    Tags: , , ,
    Posted in: Embassy/State

    The rights of citizenship are among the most crucial to a democracy– from citizenship flows the full range of legal protections against unwarranted government interference, and the ability to travel freely.

    Citizenship for an American is made plain by the issuance of a U.S. passport by the U.S. Department of State. That passport once could only be seized and revoked by State under clear rules, and with a form of redress made explicit. Those strictures may still apply to most Americans, everywhere. Everywhere but in Yemen.

    NSC: 500 Unlawful Passport Seizures in Yemen?

    According to exclusive information obtained through a U.S. government whistleblower involved directly with U.S.-Yemeni affairs, the American Embassy in Sanaa, Yemen unlawfully seized over one hundred U.S. passports from Yemeni-Americans (some place the number at 500 passports), resulting in multiple lawsuits in Federal court. The Department of State, responsible for all U.S. passport matters, lost one case, and settled three others out-of-court. Yemenis in the U.S. are bringing the issue to the attention of the National Security Council and Congress, demanding oversight and assistance. State’s response has been to stonewall the inquiries inside the U.S., and to award and promote the person at the U.S. embassy in Yemen responsible for the seizures.

    The leaked information supports the contention that passport seizures are a bigger problem than was originally believed. The Yemen Post cited only twenty cases. A forum for legal advice includes accusations of the same, prompting one attorney to comment “The U.S. consular officers in Yemen believe they are God and act accordingly.”

    However, in emails from the National Security Council to the State Department obtained by this blog, the Director for Yemen cites contact from “another” immigration attorney on the subject, and, more significantly, an inquiry that involves 500 seized/revoked passport cases. She asks State “Can you tell me what he is referring to?” State’s response was to promise to hold a meeting with some Yemeni-Americans to “hear their concerns.” The last email in the chain is again from the NSC, pleading for confirmation that any such meeting actually took place.

    Abdulhakem Alsadah, who coordinates a Yemeni-American society in Michigan, said though he initiated calls to the State Department, he has never been contacted by them. He knows of no meetings held “to hear concerns.” The publisher of a Yemen-American news site also says he has heard of no meetings held by State. Both men would welcome the chance to speak directly to the officials responsible for what they see as a significant violation of rights at the U.S. embassy in Sanaa.

    The Case of Abdo Hizam

    The use of extra-judicial passport seizures by State against Yemeni-Americans extends back several years, and appears connected to the case of drone-assassinated al Qaeda propagandist and American citizen Anwar al-Awlaki.

    Yemeni-American Abdo Hizam immigrated with his parents to the U.S. at age nine, growing up a typical American kid outside Detroit. He was issued a U.S. passport, and in fact renewed it twice through the State Department. As an adult, Hizam traveled to Yemen in 2009. In the course of a routine immigration matter regarding his own children, the U.S. embassy unlawfully seized Hizam’s passport, providing no explanation. After three weeks of silence, he was permitted by the embassy to return to the U.S.

    Two years after returning home, around the same time as the more spectacular passport case of Anwar al-Awlaki, the State Department told Hizam that he had received his citizenship “in error” twenty two years earlier. The mistake was no fault of his or his parents. In fact, the government adjudicated the original application wrong, and admitted so. Nonetheless, State revoked his passport and stripped Mr. Hizam of his nationality, plunging him into statelessness, declaring he was, at the stroke of the pen, no longer an American. Hizam could not leave the U.S., and his wife and children in Yemen were not issued visas by State to come to the U.S., actions that kept the family apart for three years. Hizam was offered no chance to argue, no recourse by the State Department but to accept his forced expatriation.

    Hizam was however one of the lucky ones. Still in the U.S. physically but no longer legally, he sued the government. While the State Department argued in part that it could retroactively apply a law passed long after Hizam became a citizen to revoke his citizenship, in Hizam v. Hillary Clinton, a court ordered State to give Hizam back his passport. The court scolded the State Department that at the time it approved Hizam’s citizenship it was “impossible for him to have received any notice whatsoever that his status could be revoked in the future.”

    “It’s certainly a scary power that the State Department is asserting here,” one of Hizam’s lawyer said. “The fact that the State Department can go back and ask these questions when somebody has, from childhood, been a U.S. citizen, is very frightening.”

    But instead of accepting it could not go back to the future in Hizam’s case, State doubled-down and instead tried to stay the court order until it completed a lengthy appeal of the case, claiming the Department “will suffer irreparable injury because the Order undermines its ‘sole discretion’ to withhold passports.” The court disagreed and for the time gave Hizam back his passport, his citizenship, his right to travel and the ability to reunite with his family. State continues to appeal; the U.S. Court of Appeals for the second circuit the government’s arguments two months ago, but has yet to issue a decision. A lawyer familiar with the case stated “The government recognizes that their position is causing great unfairness to this man and suggests that the only remedy is to get a special law passed specifically for him.”

    Extra-Judicial Actions

    After failing to establish legal precedent for its unlawful passport revocations, the State Department appears to have shifted gears, simply ignoring the law to physically seize passports from Yemeni-Americans seeking routine services at the embassy in Sanaa, or those tricked into coming in. Supporters of the affected Yemenis report regular but often vague accusations of fraud being used as excuses to simply grab a passport. Others say that elderly Yemeni-Americans coming to the embassy for routine social security questions have been subjected to interrogations and again, after being accused of fraud, losing their passports without further explanation. While regulations require a formal, deliberative process to legally seize a U.S. passport, especially abroad where such seizure can strand an American and subject him to host-country immigration penalties, in Sanaa these regulations were bypassed simply by labeling the seizures as a case in need of “additional administrative processing.”

    The embassy in Sanaa gave itself top cover for its actions. In a cable obtained by Wikileaks, the embassy noted that “all immigrant visa cases are considered fraudulent until proven otherwise. Interviews are complex, due not only to fraud, but also to the illiteracy and poor education of applicants.”

    Rashid A. Abdu, publisher of the Michigan-based Yemeni-American, believes 100 or more Yemeni-Americans have had their passports taken away in Sanaa under dubious circumstances. He met with Congressman John Dingell not only to seek assistance but to remind him that word spreads fast in Yemen: these American citizens who could be serving as helpful bridges between the two countries are instead passing the word that the U.S. government seems to be singling them out for punishment (Dingell’s Dearborn office acknowledged the passport issue, but referred formal comment to the Congressman’s Washington office, who in turn refused to comment on the matter.)

    A Bigger Picture

    The actions at the American embassy in Yemen, while at first appearing to be little more than spiteful bureaucracy, fit into a larger pattern. For example, at the same time in 2011 the U.S. was ramping up its actions against Yemeni-Americans, Australia appeared to be doing much the same thing. “Withholding passports is an important means of preventing Australians from traveling overseas to train, support or participate in terrorism,” an Australian government spokesperson said. “It may also be used to help prevent an Australian already overseas from participating in activities that are prejudicial to the security of Australia or another country.”

    Anwar al-Awlaki

    The Government of the United States can also take away passports from American Citizens if “The Secretary of State determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.”

    If the government feels it is against its interest for you to have a passport and thus the freedom to travel, to depart the United States if you wish to, it will just take it away. The law allows this prospectively, the “or are likely to cause…” part of the law, meaning you don’t need to have done anything. The government just needs to decide that you might.

    A Judicial Watch Freedom of Information Act request revealed that prior to having him and his 16 year old son killed by a drone in 2011, then-Secretary of State Hillary Clinton secretly revoked the passport of Anwar al-Awlaki, al Qaeda propagandist and U.S. Citizen. The State Department even tried later to invite al-Awlaki into the U.S. embassy in Yemen so that they could encourage him to return to the U.S. to face charges. In a cable to the embassy in Sanaa, al-Awaki’s street address was listed. The embassy was to send him a written letter inviting him into the embassy, specifying that he was to bring along photo ID “to preserve his privacy rights.” Six months later (al-Awlaki never dropped by the Embassy, by the way), the U.S. government simply killed him. Two weeks after that it killed his 16 year old son, also an American citizen.

    Because the passport revocations at the Secretary of State’s pleasure can be secret, it has been difficult to track down recent examples where the U.S. government revoked the passport of an American simply because his/her presence abroad bothered– or might bother– the Secretary of State. In fact, the only example found was that of infamous ex-CIA officer Phillip Agee, who in the 1970′s exposed CIA officers identities. It was in Agee’s case that the Supreme Court coldly stated that “The right to hold a passport is subordinate to national security and foreign policy considerations.”

    There is at least one other case of extra-judicial forced expatriation, this one outside of Yemen, though it follows an identical pattern of action by the State Department. Officials at the American embassy in Kuwait told an American working as a U.S. military contractor there that after they confiscated his passport that “he should no longer consider himself a U.S. citizen.”At issue is a 20 year old problem that occurred before the Moroccan-American resident of Oregon even was a U.S. citizen. “American citizenship is too important to be subject to the whims of low level bureaucrats,” a lawyer for the subject wrote. “If there are any concerns about my client’s citizenship, he has the right to have those concerns addressed through the judicial process once he returns to the United States.” The State Department referred questions about the case to its Bureau of Consular Affairs, where an official said she could not discuss the case because of privacy concerns.

    State Department’s Response

    Though the State Department did not respond to requests for comment on this article either, in response to a Yemeni newspaper inquiry the Department said “While we do not comment on individual cases, we take all passport fraud allegations seriously. U.S. passports are the property of the United States Government and under certain circumstances can be revoked.”

    Perhaps more telling is the State Department’s actions toward the American embassy official in Yemen in charge of the passport revocations. On November 13, via a cable sent worldwide to all embassies and consulates but curiously not yet made public, the State Department named the official consular officer of the year, an award for excellence that the cable said acknowledged “outstanding individual contributions… with a particular emphasis on efficiency and quality… the committee was impressed with (her) inspired leadership.” According to that official’s Facebook page, she was also promoted, and given a dream follow-on assignment from Yemen to Australia.

    State’s generous actions toward its official in Yemen are more than the usual puffery. They strongly imply sanction of the passport seizures and revocations, and thus encourage additional such actions despite the concerns at the White House and lawsuits that have followed. In the world of bureaucracy, no career action survives public chastisement without having official sanction.

    The War Hits Home

    Despite the devastating effect on individual lives, it is hard to see what is truly being accomplished in Yemen for the United States. Perhaps like the NSA hoovering up our Facebook posts, the point may be not that they need to do it, but that they can. A bureaucracy unchecked just continues to reach deeper into citizens’ lives.

    On the other hand, open season on Yemeni-Americans appears more than simple bureaucratic zeal. Since 9/11, the U.S. has stopped considering law and regulation in favor of unilateral, and often times secret, extra-judicial actions. From the more significant steps of indefinite imprisonment without trial, to torture to daily violations of Constitutional freedoms, the tentacles of the war on terror now reach as far as the forced expatriation of individual American citizens.



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  • War Comes Home: Welcome to Post-Constitution America

    August 21, 2013 // 7 Comments

    Tags: , , ,
    Posted in: Afghanistan, Embassy/State

    This article originally appeared on TomDispatch.com. In light of the Bradley Manning verdict, this seemed worth re-reading.

    On July 30, 1778, the Continental Congress created the first whistleblower protection law, stating “that it is the duty of all persons in the service of the United States to give the earliest information to Congress or other proper authority of any misconduct, frauds, or misdemeanors committed by any officers or persons in the service of these states.”

    Two hundred thirty-five years later, on July 30, 2013, Bradley Manning was found guilty on 20 of the 22 charges for which he was prosecuted, specifically for “espionage” and for videos of war atrocities he released, but not for “aiding the enemy.”

    Days after the verdict, with sentencing hearings in which Manning could receive 136 years of prison time ongoing, the pundits have had their say. The problem is that they missed the most chilling aspect of the Manning case: the way it ushered us, almost unnoticed, into post-Constitutional America.


    The Weapons of War Come Home

    Even before the Manning trial began, the emerging look of that new America was coming into view.  In recent years, weapons, tactics, and techniques developed in Iraq and Afghanistan as well as in the war on terror have begun arriving in “the homeland.”

    Consider, for instance, the rise of the warrior cop, of increasingly up-armored police departments across the country often filled with former military personnel encouraged to use the sort of rough tactics they once wielded in combat zones. Supporting them are the kinds of weaponry that once would have been inconceivable in police departments, including armored vehicles, typically bought with Department of Homeland Security grants. Recently, the director of the FBI informed a Senate committee that the Bureau was deploying its first drones over the United States.  Meanwhile, Customs and Border Protection, part of the Department of Homeland Security and already flying an expanding fleet of Predator drones, the very ones used in America’s war zones, is eager to arm them with “non-lethal” weaponry to “immobilize targets of interest.”

    Above all, surveillance technology has been coming home from our distant war zones. The National Security Agency (NSA), for instance, pioneered the use of cell phones to track potential enemy movements in Iraq and Afghanistan. The NSA did this in one of several ways. With the aim of remotely turning on cell phones as audio monitoring or GPS devices, rogue signals could be sent out through an existing network, or NSA software could be implanted on phones disguised as downloads of porn or games.

    Using fake cell phone towers that actually intercept phone signals en route to real towers, the U.S. could harvest hardware information in Iraq and Afghanistan that would forever label a phone and allow the NSA to always uniquely identify it, even if the SIM card was changed. The fake cell towers also allowed the NSA to gather precise location data for the phone, vacuum up metadata, and monitor what was being said.

    At one point, more than 100 NSA teams had been scouring Iraq for snippets of electronic data that might be useful to military planners. The agency’s director, General Keith Alexander, changed that: he devised a strategy called Real Time Regional Gateway to grab every Iraqi text, phone call, email, and social media interaction. “Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’ ” said one former senior U.S. intelligence official. “Collect it all, tag it, store it, and whatever it is you want, you go searching for it.”

    Sound familiar, Mr. Snowden?


    Welcome Home, Soldier (Part I)

    Thanks to Edward Snowden, we now know that the “collect it all” technique employed by the NSA in Iraq would soon enough be used to collect American metadata and other electronically available information, including credit card transactions, air ticket purchases, and financial records. At the vast new $2 billion data center it is building in Bluffdale, Utah, and at other locations, the NSA is following its Iraq script of saving everything, so that once an American became a target, his or her whole history can be combed through. Such searches do not require approval by a court, or even an NSA supervisor. As it happened, however, the job was easier to accomplish in the U.S. than in Iraq, as internet companies and telephone service providers are required by secret law to hand over the required data, neatly formatted, with no messy spying required.

    When the U.S. wanted something in Iraq or Afghanistan, they sent guys to kick down doors and take it. This, too, may be beginning to happen here at home. Recently, despite other valuable and easily portable objects lying nearby, computers, and only computers, were stolen from the law offices representing State Department whistleblower Aurelia Fedenisn. Similarly, a Washington law firm representing NSA whistleblower Tom Drake had computers, and only computers, stolen from its office.

    In these years, the FBI has brought two other NSA wartime tools home. The Bureau now uses a device called Stingray to recreate those battlefield fake cell phone towers and track people in the U.S. without their knowledge. Stingray offers some unique advantages: it bypasses the phone company entirely, which is, of course, handy in a war zone in which a phone company may be controlled by less than cooperative types, or if phone companies no longer cooperate with the government, or simply if you don’t want the phone company or anyone else to know you’re snooping. American phone companies seem to have been quite cooperative. Verizon, for instance, admits hacking its own cellular modems (“air cards”) to facilitate FBI intrusion.

    The FBI is also following NSA’s lead implanting spyware and other hacker software developed for our war zones secretly and remotely in American computers and cell phones. The Bureau can then remotely turn on phone and laptop microphones, even webcams, to monitor citizens, while files can be pulled from a computer or implanted onto a computer.

    Among the latest examples of war technology making the trip back to the homeland is the aerostat, a tethered medium-sized blimp. Anyone who served in Iraq or Afghanistan will recognize the thing, as one or more of them flew over nearly every military base of any size or importance. The Army recently announced plans to operate two such blimps over Washington, D.C., starting in 2014. Allegedly they are only to serve as anti-missile defenses, though in our war zones they were used as massive surveillance platforms. As a taste of the sorts of surveillance systems the aerostats were equipped with abroad but the Army says they won’t have here at home, consider Gorgon Stare, a system that can transmit live images of an entire town.  And unlike drones, an aerostat never needs to land. Ever.


    Welcome Home, Soldier (Part II)

    And so to Bradley Manning.

    As the weaponry and technology of war came home, so did a new, increasingly Guantanamo-ized definition of justice. This is one thing the Manning case has made clear.

    As a start, Manning was treated no differently than America’s war-on-terror prisoners at Guantanamo and the black sites that the Bush administration set up around the world. Picked up on the “battlefield,” Manning was first kept incommunicado in a cage in Kuwait for two months with no access to a lawyer. Then, despite being an active duty member of the Army, he was handed over to the Marines, who also guard Guantanamo, to be held in a military prison in Quantico, Virginia.

    What followed were three years of cruel detainment, where, as might well have happened at Gitmo, Manning, kept in isolation, was deprived of clothing, communications, legal advice, and sleep. The sleep deprivation regime imposed on him certainly met any standard, other than Washington’s and possibly Pyongyang’s, for torture. In return for such abuse, even after a judge had formally ruled that he was subjected to excessively harsh treatment, Manning will only get a 112-day reduction in his eventual sentence.

    Eventually the Obama administration decided Manning was to be tried as a soldier before a military court. In the courtroom, itself inside a military facility that also houses NSA headquarters, there was a strikingly gulag-like atmosphere.  His trial was built around secret witnesses and secret evidence; severe restrictions were put on the press — the Army denied press passes to 270 of the 350 media organizations that applied; and there was a clear appearance of injustice. Among other things, the judge ruled against nearly every defense motion.

    During the months of the trial, the U.S. military refused to release official transcripts of the proceedings. Even a private courtroom sketch artist was barred from the room. Independent journalist and activist Alexa O’Brien then took it upon herself to attend the trial daily, defy the Army, and make an unofficial record of the proceedings by hand. Later in the trial, armed military police were stationed behind reporters listening to testimony. Above all, the feeling that Manning’s fate was predetermined could hardly be avoided. After all, President Obama, the former Constitutional law professor, essentially proclaimed him guilty back in 2011 and the Department of Defense didn’t hesitate to state more generally that “leaking is tantamount to aiding the enemies of the United States.”

    As at Guantanamo, rules of evidence reaching back to early English common law were turned upside down. In Manning’s case, he was convicted of espionage, even though the prosecution did not have to prove either his intent to help another government or that harm was caused; a civilian court had already paved the way for such a ruling in another whistleblower case. In addition, the government was allowed to label Manning a “traitor” and an “anarchist” in open court, though he was on trial for neither treason nor anarchy. His Army supervisor in the U.S. and Iraq was allowed to testify against him despite having made biased and homophobic statements about him in a movie built around portraying Manning as a sad, sexually-confused, attention-seeking young man mesmerized by WikiLeaks founder Julian Assange. Finally, the same judge who essentially harassed the press throughout Manning’s trial issued a 24-hour advance notice of her verdict to ensure maximum coverage only of the denouement, not the process.

    Given all this, it is small comfort to know that Manning, nailed on the Espionage Act after multiple failures in other cases by the Obama administration, was not convicted of the extreme charge of “aiding the enemy.”


    Not Manning Alone

    Someday, Manning’s case may be seen as a bitter landmark on the road to a post-Constitutional America, but it won’t be seen as the first case in the development of the post-Constitutional system. Immediately following 9/11, top officials in the Bush administration decided to “take the gloves off.” Soon after, a wounded John Walker Lindh, the so-called American Taliban, was captured on an Afghan battlefield, held in a windowless shipping container, refused access to a lawyer even after he demanded one as an American citizen, and interrogated against his will by the FBI. Access to medical care was used as a bribe to solicit information from him. “Evidence” obtained by such means was then used to convict him in court.

    Jose Padilla, a U.S. citizen who clumsily plotted to detonate a nonexistent “dirty bomb,” was held incommunicado for more three years, over a year of which was in a South Carolina military jail. He was arrested only as a material witness and was not formally charged with a crime until years later. He was given no means to challenge his detention under habeas corpus, as President Bush designated him an “enemy combatant.” Pictures of Padilla being moved wearing sound-proof and light-proof gear strongly suggest he was subjected to the same psychosis-inducing sensory deprivation used as “white torture” against America’s foreign enemies in Guantanamo.

    Certainly, the most egregious case of pre-Manning post-Constitutional justice was the execution of American citizen Anwar al-Awlaki by drone in Yemen, without due process or trial, for being an al-Qaeda propagandist. In this, President Obama and his top counterterrorism advisors quite literally took on the role of judge, jury, and executioner.  In a similar fashion, again in Yemen, the U.S. killed al-Awlaki’s American teenage son, a boy no one claimed was connected to terrorism. Obama administration lawyers went on to claim the legal right to execute U.S. citizens without trial or due process and have admitted to killing four Americans. Attorney General Eric Holder declared that “United States citizenship alone does not make such individuals immune from being targeted.”

    Then-FBI Director Robert Mueller, asked in a Congressional hearing if the FBI could assassinate an American citizen in the United States, replied that he simply did not know. “I have to go back. Uh, I’m not certain whether that was addressed or not.” He added, “I’m going to defer that to others in the Department of Justice.” As if competing for an Orwellian prize, an unnamed Obama administration official told the Washington Post, “What constitutes due process in this case is a due process in war.”


    Post-Constitutional America

    So welcome to post-Constitutional America. Its shape is, ominously enough, beginning to come into view.

    Orwell’s famed dystopian novel 1984 was not intended as an instruction manual, but just days before the Manning verdict, the Obama administration essentially buried its now-ironic-campaign promise to protect whistleblowers, sending it down Washington’s version of the memory hole. Post-9/11, torture famously stopped being torture if an American did it, and its users were not prosecutable by the Justice Department.

    Similarly, full-spectrum spying is not considered to violate the Fourth Amendment and does not even require probable cause. Low-level NSA analysts have desktop access to the private emails and phone calls of Americans. The Post Office photographs the envelopes of every one of the 160 billion pieces of mail it handles, collecting the metadata of “to:” and “from:” addresses. An Obama administration Insider Threat Program requires federal employees (including the Peace Corps) to report on the suspicious behavior of coworkers.

    Government officials concerned over possible wrongdoing in their departments or agencies who “go through proper channels” are fired or prosecuted. Government whistleblowers are commanded to return to face justice, while law-breakers in the service of the government are allowed to flee justice. CIA officers who destroy evidence of torture go free, while a CIA agent who blew the whistle on torture is locked up.

    Secret laws and secret courts can create secret law you can’t know about for “crimes” you don’t even know exist.  You can nonetheless be arrested for committing them. Thanks to the PATRIOT Act, citizens, even librarians, can be served by the FBI with a National Security Letter (not requiring a court order) demanding records and other information, and gagging them from revealing to anyone that such information has been demanded or such a letter delivered.  Citizens may be held without trial, and denied their Constitutional rights as soon as they are designated “terrorists.” Lawyers and habeas corpus are available only when the government allows.

    In the last decade, 10 times as many employers turned to FBI criminal databases to screen job applicants. The press is restricted when it comes to covering “open trials.” The war on whistleblowers is metastasizing into a war on the First Amendment. People may now be convicted based on secret testimony by unnamed persons. Military courts and jails can replace civilian ones. Justice can be twisted and tangled into an almost unrecognizable form and then used to send a young man to prison for decades. Claiming its actions lawful while shielding the “legal” opinions cited, often even from Congress, the government can send its drones to assassinate its own citizens.

    One by one, the tools and attitudes of the war on terror, of a world in which the “gloves” are eternally off, have come home. The comic strip character Pogo’s classic warning — “We have met the enemy and he is us” — seems ever less like a metaphor. According to the government, increasingly we are now indeed their enemy.




    This article also appeared on:

    The Nation http://www.thenation.com/article/175589/welcome-post-constitution-america

    Commondreams: http://www.commondreams.org/view/2013/08/05-3

    Salon.com: http://www.salon.com/2013/08/05/in_post_constitutional_america_we_are_all_the_governments_new_enemy_partner/

    Huffington Post: http://www.huffingtonpost.com/peter-van-buren/bradley-manning-trial_b_3707109.html

    Michael Moore: http://www.michaelmoore.com/words/mike-friends-blog/welcome-post-constitution-america-what-if-your-country-begins-change-and-no-one-notices

    Digg.com

    Asia Times: http://www.atimes.com/atimes/World/WOR-01-060813.html

    Mother Jones: http://www.motherjones.com/politics/2013/08/bradley-manning-constitutional-rights

    Le Monde Diplomatique (English): http://mondediplo.com/openpage/welcome-to-post-constitution-america

    ZNET: http://www.zcommunications.org/welcome-to-post-constitution-america-by-peter-van-buren

    Truthdig: http://www.truthdig.com/report/item/welcome_to_post-constitution_america_20130805/

    Counterinformation: https://counterinformation.wordpress.com/2013/08/05/welcome-to-post-constitution-america/

    Information Clearing House: http://www.informationclearinghouse.info/article35760.htm

    Nation of Change: http://www.nationofchange.org/welcome-post-constitution-america-1375712052

    Middle East online: http://www.middle-east-online.com/english/?id=60564

    al-Arab online: http://www.alarabonline.org/english/display.asp?fname=\2013\08\08-05\zopinionz\970.htm&dismode=x&ts=8/5/2013%2011:15:21%20AM

    Democratic Underground: http://www.democraticunderground.com/10023408050

    Outlook India: http://www.outlookindia.com/article.aspx?287286

    Smirking Chimp: http://smirkingchimp.com/thread/tom-engelhardt/50975/tomgram-peter-van-buren-the-manning-trial-began-on-9-11

    http://www.dailykos.com/story/2013/08/05/1228975/-Peter-Van-Buren-The-Manning-Trial-Began-on-9-11?detail=hide

    http://www.opednews.com/articles/Peter-Van-Buren-The-Manni-by-Tom-Engelhardt-130805-781.html

    http://my.firedoglake.com/tomengelhardt/2013/08/05/peter-van-buren-the-manning-trial-began-on-911/

    http://thegreenbelt.blogspot.com/2013/08/welcome-to-post-constitutional-america.html

    http://www.fromthetrenchesworldreport.com/welcome-to-post-constitution-america/52973

    http://www.blogotariat.com/node/1185276

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  • Obama Killed Four Americans with Drones Since Nobel Peace Prize

    May 23, 2013 // 13 Comments

    Tags: , , , ,
    Posted in: Democracy

    Attorney General Eric Holder told Congress that U.S. drone strikes since 2009 have killed four Americans — three of whom were “not specifically targeted.”

    As Dangeroom reports, for all the effort that Obama has gone to in asserting that its drones only kill the people that the administration selects to kill, Holder wrote in a letter to Senator Patrick Leahy that Samir Khan, 16-year-old Abdulrahman Awlaki and Jude Kenan Mohammad were “not specifically targeted by the United States.” The fourth American to die in a drone strike since 2009 was Abdulrahman’s father Anwar Awlaki, an al Qaeda propagandist who never fired a shot in anger, but whom the U.S. killed in Yemen in 2011.

    I have re-read the Constitution and it says nothing about the Bill of Rights not applying to Americans who join terror groups. The Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and include no exceptions for war, terrorism, or being a really bad human being.

    I don’t like terrorists, but I do love our Rights as Citizens. If you support rights such as the Second Amendment’s right to bear arms for example, you gotta also take the rest. It is not a menu.

    Well, some say, the police shoot criminals who pose an imminent threat without due process all the time. True enough, but the police shootings are often unjustified, but when they are the event happens spontaneously and the cop has to make a life-or-death decision in a split second. The drone killings are planned and well-thought out– premeditated murder.

    Drones are surgical strikes, precision smiting of only America’s worst enemies? Then how come the White House admits that three of the four Americans it killed were “not specifically targeted.” In other words, fatal mistakes, collateral damage. Same dead Citizens.

    The actual acknowledged death count of Americans killed by their own government is five. Prior to the Obama administration, Kamal Derwish died in a strike launched in Yemen in 2002 under George W. Bush.

    We have survived as a nation a very long time without having to resort to this. Why now? Are terror groups so uniquely and specially dangerous? No, of course not. What has happened is that a technology– drones– has morphed into a policy. Obama falsely thinks the drones are clean and of little risk. By stepping off the edge and throwing out the Constitutional protections we have enjoyed for so many years, and for which so many have fought and died, he is doing more damage to America than some bomb. The arguments are old, but I guess we need to roll them out once more: once you unleash the authority to kill you do not know where it will stop. Once you start killing to prevent the possibility of a future act, where will it stop? Once you start creating unconstitutional exceptions to the Constitution, where will it stop? Blasting away a slug like Awlaki is not worth this.

    Can’t happen here? FBI Director Mueller, appearing before a House subcommittee, said that he simply did not know whether he could order an assassination of his own against an American here in the U.S. “I have to go back. Uh, I’m not certain whether that was addressed or not” and added “I’m going to defer that to others in the Department of Justice.”

    The Constitution was drafted to protect especially citizens whose actions were disfavored by the majority. We cannot let terrorism change the very fabric of America. We must stop now and see past the anger and fear to the bigger picture. This is the government assassinating U.S. citizens without even an indictment–much less a trial. We should all be concerned.

    And afraid. I don’t like that as an American I must live in fear.



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  • Six Critical Foreign Policy Questions That Won’t Be Raised in the Presidential Debates

    October 16, 2012 // 11 Comments

    Tags: , ,
    Posted in: Afghanistan, Embassy/State, Iran, Iraq

    (This article originally appeared on TomDispatch and Huffington Post on October 11, 2012. It seems especially useful to review in light of both candidates demanding that the moderator of tonight’s debate not be allowed to ask follow-up questions. Softballs only, please. Indeed, the entire lengthy memo of understanding between the two candidates is an insult to democracy and shows their contempt for the entire process.)

    We had a debate club back in high school. Two teams would meet in the auditorium, and Mr. Garrity would tell us the topic, something 1970s-ish like “Resolved: Women Should Get Equal Pay for Equal Work” or “World Communism Will Be Defeated in Vietnam.” Each side would then try, through persuasion and the marshalling of facts, to clinch the argument. There’d be judges and a winner.

    Today’s presidential debates are a long way from Mr. Garrity’s club. It seems that the first rule of the debate club now is: no disagreeing on what matters most. In fact, the two candidates rarely interact with each other at all, typically ditching whatever the question might be for some rehashed set of campaign talking points, all with the complicity of the celebrity media moderators preening about democracy in action. Waiting for another quip about Big Bird is about all the content we can expect.

    But the joke is on us. Sadly, the two candidates are stand-ins for Washington in general, a “war” capital whose denizens work and argue, sometimes fiercely, from within a remarkably limited range of options.  It was D.C. on autopilot last week for domestic issues; the next two presidential debates are to be in part or fully on foreign policy challenges (of which there are so many). When it comes to foreign — that is, military — policy, the gap between Barack and Mitt is slim to the point of nonexistent on many issues, however much they may badger each other on the subject.  That old saw about those who fail to understand history repeating its mistakes applies a little too easily here: the last 11 years have added up to one disaster after another abroad, and without a smidgen of new thinking (guaranteed not to put in an appearance at any of the debates to come), we doom ourselves to more of the same.

    So in honor of old Mr. Garrity, here are five critical questions that should be explored (even if all of us know that they won’t be) in the foreign policy-inclusive presidential debates scheduled for October 16th, and 22nd — with a sixth bonus question thrown in for good measure.


    1. Is there an end game for the global war on terror?

    The current president, elected on the promise of change, altered very little when it came to George W. Bush’s Global War on Terror (other than dropping the name). That jewel-in-the-crown of Bush-era offshore imprisonment, Guantanamo, still houses over 160 prisoners held without trial or hope or a plan for what to do with them. While the U.S. pulled its troops out of Iraq — mostly because our Iraqi “allies” flexed their muscles a bit and threw us out — the war in Afghanistan stumbles on. Drone strikes and other forms of conflict continue in the same places Bush tormented: Yemen, Somalia, and Pakistan (and it’s clear that northern Mali is heading our way).

    A huge national security state has been codified in a host of new or expanded intelligence agencies under the Homeland Security umbrella, and Washington seems able to come up with nothing more than a whack-a-mole strategy for ridding itself of the scourge of terror, an endless succession of killings of “al-Qaeda Number 3” guys. Counterterrorism tsar John Brennan, Obama’s drone-meister, has put it this way: “We’re not going to rest until al-Qaeda the organization is destroyed and is eliminated from areas in Afghanistan, Pakistan, Yemen, Africa, and other areas.”

    So, candidates, the question is: What’s the end game for all this? Even in the worst days of the Cold War, when it seemed impossible to imagine, there was still a goal: the “end” of the Soviet Union. Are we really consigned to the Global War on Terror, under whatever name or no name at all, as an infinite state of existence?  Is it now as American as apple pie?


    2. Do today’s foreign policy challenges mean that it’s time to retire the Constitution?

    A domestic policy crossover question here. Prior to September 11, 2001, it was generally assumed that our amazing Constitution could be adapted to whatever challenges or problems arose. After all, that founding document expanded to end the slavery it had once supported, weathered trials and misuses as dumb as Prohibition and as grave as Red Scares, Palmer Raids, and McCarthyism. The First Amendment grew to cover comic books, nude art works, and a million electronic forms of expression never imagined in the eighteenth century. Starting on September 12, 2001, however, challenges, threats, and risks abroad have been used to justify abandoning core beliefs enshrined in the Bill of Rights. That bill, we are told, can’t accommodate terror threats to the Homeland. Absent the third rail of the Second Amendment and gun ownership (politicians touch it and die), nearly every other key amendment has since been trodden upon.

    The First Amendment was sacrificed to silence whistleblowers and journalists. The Fourth and Fifth Amendments were ignored to spy on Americans at home and kill them with drones abroad. (September 30th was the one-year anniversary of the Obama administration’s first acknowledged murder without due process of an American — and later his teenaged son — abroad. The U.S. has similarly killed two other Americans abroad via drone, albeit “by accident.”)

    So, candidates, the question is: Have we walked away from the Constitution? If so, shouldn’t we publish some sort of notice or bulletin?


    3. What do we want from the Middle East?

    Is it all about oil? Israel? Old-fashioned hegemony and containment? What is our goal in fighting an intensifying proxy war with Iran, newly expanded into cyberspace? Are we worried about a nuclear Iran, or just worried about a new nuclear club member in general? Will we continue the nineteenth century game of supporting thug dictators who support our policies in Bahrain, Saudi Arabia, Egypt, and Libya (until overwhelmed by events on the ground), and opposing the same actions by other thugs who disagree with us like Iraq’s Saddam Hussein and Syria’s Bashar al-Assad? That kind of policy thinking did not work out too well in the long run in Central and South America, and history suggests that we should make up our mind on what America’s goals in the Middle East might actually be. No cheating now — having no policy is a policy of its own.

    Candidates, can you define America’s predominant interest in the Middle East and sketch out a series of at least semi-sensical actions in support of it?


    4. What is your plan to right-size our military and what about downsizing the global mission?

    The decade — and counting — of grinding war in Iraq and Afghanistan has worn the American military down to its lowest point since Vietnam. Though drugs and poor discipline are not tearing out its heart as they did in the 1970s, suicide among soldiers now takes that first chair position. The toll on families of endless deployments is hard to measure but easy to see. The expanding role of the military abroad (reconstruction, peacekeeping, disaster relief, garrisoning a long necklace of bases from Rota, Spain, to Kadena, Okinawa) seems to require a vast standing army. At the same time, the dramatic increase in the development and use of a new praetorian guard, Joint Special Operations Command, coupled with a militarized CIA and its drones, have given the president previously unheard of personal killing power. Indeed, Obama has underscored his unchecked solo role as the “decider” on exactly who gets obliterated by drone assassins.

    So, candidates, here’s a two-parter: Given that a huge Occupy Everywhere army is killing more of its own via suicide than any enemy, what will you do to right-size the military and downsize its global mission?  Secondly, did this country’s founders really intend for the president to have unchecked personal war-making powers?


    5. Since no one outside our borders buys American exceptionalism anymore, what’s next? What is America’s point these days?

    The big one. We keep the old myth alive that America is a special, good place, the most “exceptional” of places in fact, but in our foreign policy we’re more like some mean old man, reduced to feeling good about himself by yelling at the kids to get off the lawn (or simply taking potshots at them).

    During the Cold War, the American ideal represented freedom to so many people, even if the reality was far more ambiguous. Now, who we are and what we are abroad seems so much grimmer, so much less appealing (as global opinion polls regularly indicate). In light of the Iraq invasion and occupation, and the failure to embrace the Arab Spring, America the Exceptional, has, it seems, run its course.

    America the Hegemonic, a tough if unattractive moniker, also seems a goner, given the slo-mo defeat in Afghanistan and the never-ending stalemate that is the Global War on Terror. Resource imperialist? America’s failure to either back away from the Greater Middle East and simply pay the price for oil, or successfully grab the oil, adds up to a “policy” that only encourages ever more instability in the region. The saber rattling that goes with such a strategy (if it can be called that) feels angry, unproductive, and without any doubt unbelievably expensive.

    So candidates, here are a few questions: Who exactly are we in the world and who do you want us to be? Are you ready to promote a policy of fighting to be planetary top dog — and we all know where that leads — or can we find a place in the global community? Without resorting to the usual “shining city on a hill” metaphors, can you tell us your vision for America in the world? (Follow up: No really, cut the b.s and answer this one, gentlemen.  It’s important!)


    6. Bonus Question: To each of the questions above add this: How do you realistically plan to pay for it? For every school and road built in Iraq and Afghanistan on the taxpayer dollar, why didn’t you build two here in the United States? When you insist that we can’t pay for crucial needs at home, explain to us why these can be funded abroad. If your response is we had to spend that money to “defend America,” tell us why building jobs in this country doesn’t do more to defend it than anything done abroad.


    Now that might spark a real debate, one that’s long, long overdue.




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  • Public Diplomacy: Propaganda for Who?

    April 2, 2012 // 7 Comments

    Tags: , , ,
    Posted in: Embassy/State, Iraq, Military

    Or is it “whom,” I never can remember.

    There has been some web chatter about public diplomacy in general, and social media in the particular. Of course, since it involves technology invented since the wireless, the State Department has to call it something slick, so eDiplomacy.

    The idea is actually not eNew. Throughout the Cold War the US used the social media of the day, eRadio, TV and musical tours to spread a message into the exSoviet Bloc. Not sure what the effect there was (though lots of older Russians do like jazz) but the ideas presented as revolutionary are not so new. And neither is the debate over their effectiveness.

    As propaganda. Really bad propaganda.

    Really, do we think that spending American tax dollars on creating YouTube videos that supposedly show American Citizen Anwar al-Awlaki (assasinated by drone along with his 16 year old son) solicited prostitutes are going to win any war?

    Or this one, which essentially calls bin Laden a poopy head, are somehow seen as anything but a first semester film school project gone wrong? Better work in Jarret’s Room.

    But with all the distractions lately about my own struggles getting fired from State, it is useful to return to what the hub-bub is all about: the waste and mismanagement by the State Department in the reconstruction of Iraq. It was that failure which indeed lost the war. Not that you’d know by watching some of the State Department’s own public diplomacy drech about the “success” of their efforts:

    (If the video fails to load, you can see it here)

    Though no one actually takes credit for that pile, the people in the video are mostly Embassy folk. The ones without the neat button downs are contractors, their love of the program no doubt inspired by the $250,000 a year State paid them. The others are real-live State Department types: Interestingly, Aaron Snipes appears in the video and, coincidentally, Snipes also is one of the most prominent names in the State Department investigative report on this blog, helping defend the mistakes in Iraq even to the point of smearing a colleague with whispered emails to Diplomatic Security years later back in Washington. Anyone who thinks this is about anything but defending bureaucratic failures is a big believer in coincidences.

    There are many highlights in the video, but one to point out is the meme with “Little Yasser,” the orphan boy whose school was rebuilt towards the end of the program. The PRTs were working on Little Yasser three years ago, when I was there. Real good news was hard to find, so when it happened we tended to overdo it. Even worse was when we manufactured the illusion of good news and beat the hell out of that. Look at the story of Operation Little Yasser. A sister PRT singled out an orphan and built a whole phony project around him, something about bringing a green house to an orphanage so the kids could heal by growing squash. The kid, Yasser, was just a prop for the media to write stories about, describing him as a “sweet, fragile child, whose soulful eyes reveal some of the heartbreak he’s endured.” That line was written in a project grant in 2009, and they repeated it verbatim in the video. The kid did not get anything out of his exploitation, kids rarely do, but the Embassy sure got some major “social media” miles. We were like the pedophiles of PRT work.

    One feature of these propaganda videos is their crudeness, primarily in their shameless lack of objectivity and balance. It is not unexpected that the Embassy would want to put a positive spin on things, but to present the PRT program as a singular savior of Iraq seems a bit much.

    The world needed this piece of self-congratulatory crap like I need a third nipple. Who outside of the State Department is the intended audience? The video is obviously too one-sided for even the fanboys, and an Iraqi audience would pee themselves laughing. Then it dawned on me: the video’s audience was State. They made this video for themselves.

    Real development work is slow, hard and often unphotogenic. The Iraqis got some charity, handouts really, but mostly ended up as background actors for our fantasy that we were liberators not occupiers. Watch in the video as the stalwart PRT members hand out pencils to schoolkids. The flak-jacketed American has the kids take one pencil from his box of many, making each kid look him in the eye as the price of accepting the handout. The visual is clear: we have a lot, you have nothing, this process is to make me feel good at the expense of your self pride. The process– armed soldiers and disingenuous officials coming into a school and co-opting the kids while the cameras rolled– must have reminded the Iraqis of Saddam’s own clumsy attempts at buying love. Would Americans feel pride seeing Chinese troops handing out school supplies in some Detroit shithole neighborhood?

    Resorting to gifts to seem popular was quick and easy but, like most quick solutions, really didn’t help. Once you started down the path of easy answers, your methods tended to sabotage later efforts to try the harder way. In a counterinsurgency campaign, there were several ways to make friends, most of them slow and difficult, like building relationships within the local community over time based on trust earned and respect freely given. Each iteration of handouts caused you to lose respect from a proud group of people forced into an uneven relationship, no matter how many self-congratulatory Tweets you sent out.

    It does, however, seem quaint (as well as exposing the utter shallowness of this swipe at public diplomacy) to hear Americans talking about rebuilding Iraq. I’ll go report about that on Facebook now…



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  • Can the FBI Legally Assassinate You in America? Maybe.

    March 9, 2012 // 1 Comment

    Tags: , , , , ,
    Posted in: Democracy

    Uberfurher der Obama Reich Eric Holder of course famously announced this week that the Government of the United States now asserts that it has the legal right to kill American Citizens (foreigners were always fair game) abroad when Der Furher determines said Americans are terrorists. If you have not read my renunciation of this horrific turn of events, please do read it on this blog, or at the Huffington Post.

    The US-sanctioned assassinations of native-born American Citizen al Zawaki and his 16 year old American Citizen son were the unspoken centerpieces of Uberfurher Holder’s speech. Those murders were carried out using US military drones, bureaucratically assigned to CIA “control” in the air over Yemen. The illusion of CIA (i.e., civilian) control of the drones even though it was likely a pair of rugged military hands on the stick is needed to keep within the letter of the law Obama still wishes to follow, those still-secret naughty post 9/11 decrees that grant the CIA hunting rights to the entire planet. Military actions abroad require more internal US government paperwork, so whenever a drone strike will cross that bureaucratic line, they just say it was a CIA op. Indeed, the kill mission that whacked bin Laden was officially classified as a CIA op, even though the murderers were US military Seal Team 6 members in uniform. Nice to know there are still some rules, right?

    Given that there are rules, albeit rules no one outside a very tight group in the Reichstag know, FBI Director Mueller’s remarks on Wednesday are very, very frightening.

    Mueller, appearing before a House subcommittee, said that he simply did not know whether he could order an assassination of his own against an American here in the US. “I have to go back. Uh, I’m not certain whether that was addressed or not” and added “I’m going to defer that to others in the Department of Justice.”

    Note that Mueller indeed had the option of saying flat-out “No, no, the FBI can’t order an American killed in the US” or maybe “No, even the President can’t order a hit on an American here in the US where the full judicial system, Constitution and other protections apply.”

    Nope, Mueller did not say those things.

    Instead, in 2012 under oath before Congress, the senior G-man of the United States, who to get his job had had to swear an oath to uphold the Constitution, was so worried about perjury that he was unable to say whether or not the US government can indeed kill, murder and otherwise assassinate one of its own Citizens inside the United States without trial.

    Now, who’s ahead on Idol? You guys think Snooki is really preggers or is that just a PR stunt? She is sooo hawt!



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  • We Take Care of Our Own: Eric Holder and the End of Rights

    March 6, 2012 // 6 Comments

    Tags: , , , ,
    Posted in: Democracy

    (This post also appeared on the Huffington Post on March 6, 2012)

    Historians of the future, if they are not imprisoned for saying so, will trace the end of America’s democratic experiment to the fearful days immediately after 9/11, what Bruce Springsteen called the days of the empty sky, when frightened, small men named Bush and Cheney made the first decisions to abandon the Constitution in the name of freedom and created a new version of the security state with the Patriot Act, Guantanamo, secret prisons and sanctioned torture by the US government. They proceeded carefully, making sure that lawyers in their employ sanctioned each dark act, much as kings in old Europe used the church to justify their own actions.

    Those same historians will remark from exile on the irony that such horrendous policies were not only upheld by Obama, a Nobel Peace Prize winner and professor of Constitutional law, but added to until we came to the place we sadly occupy today: the Attorney General of the United States, Eric Holder, publicly stating that the American Government may murder one of its own citizens when it wishes to do so, and that the requirements of due process enshrined in the Constitution’s Fifth Amendment, itself drawn from the Magna Carta that was the first reflowering of basic human rights since the Greeks, can be satisfied simply by a decision by that same President.

    Today will thus be remembered as the day we gave up. No more clever wordplay (enhanced interrogations, “patriot” act, targeted killing, kinetic operations) but a simple declaration that the US Government will kill its own citizens when it wishes to, via a secret process we, and our victims, are not allowed to know or contest.

    Brevity in Our Freedom

    Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity and clarity. When you are saying something true, pure, clean and right, you often do not need many words: “…nor be deprived of life, liberty, or property, without due process of law.”

    There are no footnotes in the Fifth Amendment, no caveats, no secret memos, no exceptions for war, terrorism, mass rape, creation of concentration camps, acts of genocide, child torture or any evil. Those things are unnecessary, because in the beauty of what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government would be made up of us, the purpose of government was to serve us, and the government would be beholden to us. Such a government would be incapable of killing its own citizens without care and debate and open trial.

    With the excuse all tyrants proclaim, protecting the nation, on or about September 30, 2011 a US drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States and tragically devoted to al Qaeda. A few days later the US also killed al Zawaki’s 16 year old American Citizen son. The US had shot at the elder al Awlaki before, on May 7, 2011 under Obama’s orders, and under the Bush administration. Before the US government killed his son, attorneys for al Awlaki’s father tried to persuade a US District Court to issue an injunction preventing the government killing of al Awlaki. A judge dismissed the case, ruling the father did not have standing to sue. This was the first time in our nation’s history that a father sought to sue to prevent the government from extra-legally killing his son. The judge in the case surrendered to his post-9/11 fear and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens by decree.

    Fear Shaped by Lies to Compel Compliance

    In his speech, Attorney General Holder said things no honest man would ever believe would be said by the highest law officer in the United States.

    Holder said “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’”

    Holder thus also declaimed that the victim also has no right to a defense, no right to speak on his behalf, no right to examine and refute the evidence against him and no right even to know his life will be taken under the decision of a few men in Washington. Indeed, Holder made clear that the government’s decision to kill overshadowed the right to self-defense in saying “An individual’s interest in making sure that the government does not target him erroneously could not be more significant. Yet it is imperative for the government to counter threats posed by senior operational leaders of al Qaeda, and to protect the innocent people whose lives could be lost in their attacks.”

    Holder said he rejected any attempt to label such operations assassinations, invoking the same airbrush of lawfulness that fueled the Inquisition, the Salem Witch Trials and the Holocaust. “Assassinations are unlawful killings. The US government’s use of lethal force in self-defense against a leader of al-Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful.”

    Sluts All

    So while the popular media remembers today as the day Rush apologized for calling someone a slut and Republican candidates ignored the wave of history to carp about birth control, historians will look back on March 5, 2012 as the day America gave up on its experiment with unalienable rights, rights that are natural, not given, rights independent of governments, what our Declaration explained to an unsure forming nation as “Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

    America was different. We became a country not based on a common language, or religion or anything else except adherence to a common set of beliefs, our Bill of Rights. When you take that away, there is nothing left in common, and goddammit Eric Holder and Barack Obama know that.

    The saddest part of a very sad day: the majority of Americans– the consent of the governed– seemingly do not care what Holder said, and are even now bleating on internet forums and likely in comments below to this article about the need to kill more, adding terrified, empty justifications to Holder’s clever statements. We did not have our freedom taken from us, we gave it away.



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  • Huffington Post: Two Columns

    October 4, 2011 // 0 Comments

    Tags: , , ,
    Posted in: Afghanistan, Democracy, Embassy/State, Iran, Iraq, Military

    The Huffington Post ran two columns of mine this week. One is another excerpt from the book, the other a sad reaction to the US assassination of American Citizen Anwar Al-Awlaki. If you have not had a chance to read one or both, please take a look.

    Chickening Out in Iraq (book chapter excerpt)

    U.S. Executes American Citizen Al-Awlaki Without Trial




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  • US Executes an American Citizen without Trial

    October 1, 2011 // 24 Comments

    Tags: , , ,
    Posted in: Democracy, Embassy/State, Military, Other Ideas

    al Awlaki Q: If a foreign organization kills an American overseas for political reasons, it is called…

    A: Terrorism.

    Q: If the United States kills an American overseas for political reasons, it is called…

    A: Justice?

    The Government of the United States, currently under the management of a former professor of Constitutional law, executed one of its own citizens abroad without any form of due process. This is generally seen as a no-no as far as the Bill of Rights, the Magna Carta and playground rules goes. The silly old Fifth Amendment to the Constitution guarantees “no person shall be deprived of life without due process of law” and include no exceptions for war, terrorism, or being a really shitty human being.

    Anwar al-Awlaki, an American Citizen, was killed in Yemen on or about September 30. While no one has claimed actual responsibility, the choices for trigger puller are either the inept Yemen military or the United States, with its Skynet-like web of drones, satellites and intelligence tools.

    America has been trying to kill al-Awlaki for some time. On or about May 7 a US military drone fired a missile in Yemen (which is another country that is not our country) aimed at American Citizen Anwar al Awlaki, then a real-live al Qaeda guy. The missile instead blew up a car with two other people in it, quickly dubbed “al Qaeda operatives” since we killed them. The US has shot at al Awlaki even before that, including under the Bush administration.

    In justifying the assassination attempts previously, Obama’s counterterrorism chief Michael Leiter said al Awlaki posed a bigger threat to the U.S. homeland than bin Laden did, albeit without a whole lot of explanation as to why this was. But, let’s be charitable and agree al Awaki is a bad guy; indeed, Yemen sentenced him to ten years in jail (which is not execution, fyi) for “inciting to kill foreigners” and “forming an armed gang.”

    The key factor in thinking this through is that no one has accused al-Awlaki of actual killing anyone. He is accused of talking to people, albeit about jihad and killing, and exchanging emails with evil people like the shoe bomber or the underwear bomber, I forget which, and the Fort Hood killer. None of these are nice people and I doubt any of the conversations were about nice things. Still, the true is uglier: the US executed an American Citizen because of what he said and what he thought.

    Attorneys for al Awlaki’s father previously tried to persuade a US District Court to issue an injunction last year preventing the government from the targeted killing of al Awlaki in Yemen, though a judge dismissed the case, ruling the father did not have standing to sue. My research has so far been unable to disclose whether or not this is the first time a father has sought to sue the US government to prevent the government from killing his son but I’ll keep looking. The judge did call the suit “unique and extraordinary” so I am going to go for now with the idea that no one has previously sued the USG to prevent them from murdering a citizen without trial or due process. The judge wimped out and wrote that it was up to the elected branches of government, not the courts, to determine whether the United States has the authority to murder its own citizens abroad.

    Just to get ahead of the curve, and even though my own kids are non-terrorists and still in school, I have written to the president asking in advance that he not order them killed. Who knows what they might do? One kid has violated curfew a couple of times, and another stays up late some nights on Facebook, and we all know where that can lead.

    The reason I bring up this worrisome turn from regular person to wanted terrorist is because al Awlaki used to be on better terms with the US government himself. In fact, after 9/11, the Pentagon invited him to a luncheon as part of the military’s outreach to the Muslim community. Al Awlaki “was considered to be an ‘up and coming’ member of the Islamic community” by the Army. He attended a luncheon at the Pentagon in the Secretary of the Army’s Office of Government Counsel. Al Awlaki was living in the DC area at that same, the SAME AREA MY KIDS LIVE, serving as Muslim chaplain at George Washington University, the SAME UNIVERSITY MY KIDS might walk past one day.

    Even though Constitutional law professor Obama appears to have skipped reading about the Fifth Amendment (release the transcripts! Maybe he skipped class that day!), courts in Canada have not.

    A Toronto judge was justified in freeing an alleged al Qaeda collaborator given the gravity of human rights abuses committed by the United States in connection with his capture in Pakistan, the Ontario Court of Appeal ruled. Judges are not expected to remain passive when countries such as the US violate the rights of alleged terrorists, the court said.

    “We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values,” said the Canadian court.

    Golly, this means that because the US gave up its own principles in detaining and torturing this guy, the Canadians are not going to extradite him to the US. That means that the US actions were… counterproductive… to our fight against terrorism. The Bill of Rights was put in place for the tough cases, not the easy ones. Sticking with it as the guiding principle has worked well for the US for about 230 years, so why abandon all that now?

    Meanwhile, I’ll encourage my kids to stay inside when they hear drones overhead.



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