Aziz Huq

Three Reasons Racial Profiling Will Make Us Less Safe

We're all familiar by now with the theme song, even if this year it's being sung in a different key: an attempt at terrorism thwarted; calls for racial profiling go up.

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How to Manage an Empire in Decline

Do empires end with a bang, a whimper, or the sibilant hiss of financial deflation?

We may be about to find out. Right now, in the midst of the financial whirlwind, it's been hard in the United States to see much past the moment. Yet the ongoing economic meltdown has raised a range of non-financial issues of great importance for our future. Uncertainty and anxiety about the prospects for global financial markets - given the present liquidity crunch - have left little space for serious consideration of issues of American global power and influence.

So let's start with the economic meltdown at hand - but not end there - and try to offer a modest initial assessment of how the crumbling US economy might change America's global stance.

From its inception, the financial panic stemmed from, and also exposed, a form of imperial overstretch - that of Wall Street's giant financial firms. For them, it took the form of highly leveraged positions grounded on fragile, poorly assessed collateralized debt. As John Grey recently observed in the British Guardian, however, the panic also uncovered another kind of imperial overstretch - that of American geostrategic power, raising questions about how the gap between stressed political and military assets and Washington's global ambitions will be resolved.

It's important to clarify what's currently at stake globally. Otherwise, depending on one's druthers, this is a subject that tends to be either overblown or underplayed. Few in the mainstream media even countenance the possibility of catastrophic changes in the US position in the world. On the other hand, some in that world are already ascribing seismic significance to what's happening before the dust has even settled. As historian Andrew Bacevich cautions, the future has yet to be written and so neither outcome is - as yet - a foregone conclusion.

Nonetheless, it's worth trying to grasp just how today's financial crisis is converging with two other trends - the weakening of American hard and soft power - to transform the geopolitical landscape.

Melting down

Start with the financial crisis, which emerged from an industry-wide mismanagement of credit and risk. Sophisticated instruments such as credit-default swaps were intended to cushion institutions from default risk on speculative housing assets by breaking those assets into small bits and spreading them widely among financial institutions. Like any kind of insurance, this was a way of spreading risk around to minimize the consequences of catastrophe.

Instead, of course, those "instruments" seem to have cushioned investors only from a frank assessment of risk. Worse, the very splintering of risk, originally designed to insulate financial merchants from too-hard blows, meant that it would prove exceedingly difficult to assess the soundness of all sorts of other institutions.

Paradoxically, what were fashioned as tools to eliminate risk became tools for risk contagion. As a consequence, it is still unclear whether the tumbling of world markets was a consequence of a confidence-based liquidity crunch, or of a more fundamental problem of worthless assets.

For all but a hardline core of Republicans in the House of Representatives, the tenpin-style collapse or near-collapse of Lehman Brothers, AIG, WaMu, Wachovia and other outfits signaled the failure of a decades-old deregulatory approach to finance. (The credit-default swap market, in large measure the font of today's crisis, has never been regulated thanks in important part to former US Federal Reserve chief Alan Greenspan's confidence in them.) The distinctively modern American model of deregulatory fervor reached its pinnacle during the US President George W Bush years, and has now broken.

The crisis of finance, however, was also a crisis of national governance, highlighting structural weaknesses in the national political system that can render a president a lame-duck months before his term in office ends. The crisis has also highlighted the striking difficulty Congress has in sustaining meaningful legislative inquiry and action on complex issues. Since the panic began, its leaders have proven incapable of imagining alternatives to a deeply regressive and barely re-regulatory response. Not only is the nation's financial framework unsustainable, its political architecture seems seriously flawed.

All of this has an immediate, practical aspect, which has not exactly gone unnoticed in the rest of a panic-stricken world. For decades, the United States has run consistent and growing current-account deficits - basically a measure of how indebted over time a country is in relation to its foreign trading partners - to the tune of $6.7 trillion since 1982. That was then, though. This is now, and the sustainability of a political economy, no less a global geopolitical strategy that hinges on international credit markets, is today in question.

Even before the mid-September unraveling began, international creditor goodwill toward the "sole superpower" and its fiscal overreach seemed to be evaporating fast. Asian investors, for instance, were quick to evince "unprecedented" skepticism about US assets in the opening moments of the crisis. Earlier this year, vast Middle Eastern and Asian sovereign wealth funds, many bloated by petrodollars, were still willing to furnish crucial injections of capital to US banks, probably staving off the current liquidity crunch. (Paradoxically, their help may only have pushed the onrushing crisis back to a point where it became even more politically toxic to the still-ruling Republican Party.)

Since September, however, the same sovereign wealth funds have proved skittish indeed about helping US financial outfits, eliminating another possible resource for responding to credit shortfalls.

American power on the wane

At some point, tighter global credit conditions are sure to significantly constrain America's freedom of action internationally. After all, Chinese and East Asian investors, to offer but one example, are now quite capable of reining in, and even undermining, the federal government (if they choose to), rather than vice versa.

Though it may not yet have penetrated American consciousness, a national fiscal crisis is also bound to be a crisis of national security. In the coming years, a new president will have to deal with a growing disparity between the historically hegemonic role of this country on the world stage and its diminishing capacity. Simply put, the US will have to do more with less, even to maintain a semblance of its current strategic profile. What effect this has on geopolitical stability, on the number of small and big wars that occur globally, and on collective problems ranging from climate change to human rights, remains to be seen.

This might not matter so much if it hadn't been for the Bush administration's myopic focus on the Middle East as the sum of all evils and the bind it has put future policymakers in by shredding US capacity elsewhere. The recent Russian invasion of Georgia offered a graphic illustration of just how hobbled American power had become even before the present financial crisis hit. Apart from a spasm of vice-presidential denunciations, American has not taken and cannot take action in response to Russian moves in Georgia. Indeed, the White House has found itself in a situation uncomfortably like that of our erstwhile European allies, who have been confined to plaintive whining.

Worse, the Bush administration may have been fully complicit in Georgia's strategic error that precipitated the crisis. As military analyst George Friedman has noted, the US had 130 military "observers" in Georgia, who knew of its military deployments and also had the satellite capacity to view Russia's buildup in North Ossetia. Despite this knowledge, the US failed to restrain its ally from launching its forces against that breakaway region. Indeed, it may have been American training and support for the Georgian army (given in exchange for its contributions to "the coalition of the willing" in Iraq) that emboldened President Mikheil Saakashvili to invade. In which case, the administration succeeded only in enticing an important ally to throw egg in our face.

Nor is the US position in the Middle East any more impressive. However successful the "surge" has been in the American partisan political theater, it has not resolved the fundamental sectarian instabilities in Iraq, nor has it altered a growing regional imbalance as Iran gains unprecedented influence.

The mountainous Pashtun border areas in Afghanistan's east and Pakistan's west, by contrast, are in a state of open revolt against US regional desires, while the Pakistani regime favored by the Bush administration has collapsed. Obituaries are now being written for Afghanistan's Hamid Karzai regime (for those who didn't notice that it was moribund on arrival six-plus years ago).

Diminishing US economic and military influence only underscores a third trend: the wilting of America's "soft power." At the UN in September, for instance, Bush faced a tsunami of whispered complaints about America's flawed stewardship of the global economy. Manifest failure in an area in which Americans took such pride saps Washington's ability to persuade and build alliances in areas like resisting slaughter in Darfur, fighting piracy in the Gulf of Aden, or stemming Russian designs on what it calls its "near abroad".

What, in retrospect, must be termed the Dick Cheney White House, has reduced America's reputation as a moral beacon to junk-bond level. As Democratic presidential candidate Barack Obama and Republican presidential candidate John McCain have both recognized, any claim to human rights leadership the United States may have once possessed has run aground on the shoals of its torture and "extraordinary rendition" policies, all approved at the highest government levels.

In addition, the insular parochialism of the country's increasingly conservative judiciary has sliced away at the nation's reputation as a font of constitutionalism. It remains to be seen whether similar judicial parochialism will help undermine the country's attractiveness as an entrepot for financial deal-making.

Managing imperial decline

The United States today stands in a position somewhat reminiscent of imperial Great Britain after World War II: its currency is no longer the pillar of global financial stability, its armies and navies are no longer capable of enforcing its policy desires, and its reputation has been battered by formally successful but functionally catastrophic military conflicts.

Britain's World War II-eviscerated economy and infrastructure cannot, of course, be compared to its present-day American equivalents, even glutted with the detritus of two successive boom-and-bust cycles. Nonetheless, the analogy may be suggestive for Washington when it comes to possible shifts in geopolitical and economic tectonics.

As was true in the Britain of those years, so it is today, that even as the US position in the world undergoes a radical diminishment, the extent to which this is being grasped by a policymaking establishment in Washington unused to dealing with such uncertainty remains unclear.

In foreign policy terms, the overextended nature of British imperial power only struck home in 1956, nine years after the world war ended. That was the moment when British prime minister Anthony Eden fundamentally miscalculated British power in response to Egyptian president Abdul Nasser's nationalization of the Suez Canal Company. With the French and Israelis at his back, Eden reckoned that Nasser was overreaching and saw an opportunity to undermine the Egyptian regime in an area where British power had long been dominant.

Eden reckoned, however, without a newly dominant United States. American president Dwight D Eisenhower, angry at being cut out of Middle Eastern affairs, threatened Eden. He would, he indicated, "pull the plug" on the British pound by withdrawing American fiscal support for the recovering British economy. The country's monetary weakness led directly to its military collapse in the crisis. The Suez fiasco not only destroyed Eden's prime ministership, it also marked the end of British imperial ambitions.

How, then, will the United States deal with the uncertainty attendant on its present declining fortunes? A "virtual" history of parallel events featuring a new American president is not hard to imagine, with the weak dollar playing a similar starring role to that of the vulnerable pound back in 1956. Suez was, of course, disastrous for the British exactly because Eden so dramatically misjudged the gap between British assets and his version of its national ambitions. The question today is whether a new American president might do the same.

The most obvious temptation remains an attack on Iran, which would almost certainly fail, even as it exposed US operations in Iraq, Afghanistan and elsewhere to blowback of a magnitude hard for many American politicians to conceptualize at the moment. It would just as surely mark an unpredictable reordering of political relations in the Middle East and possibly, like Suez, the end of American global imperial pretensions.

Iran is but one possible place for a new Suez. Others, from Pakistan to the Taiwan Strait, abound. Such dramatic miscalculations are easy to imagine, especially if the nationalistic pressures of inside-the-Beltway politics drive international commitments. In addition, other global actors recognizing American weakness in ways Americans may not could add to the mayhem.

In a fast-transforming economic climate, a new president will be faced with a difficult balancing act: exercising flexibility while coming to terms with weakness, compensating for strengths lost during the past eight years while giving up ground in pragmatic ways. If that doesn't happen, then hard questions will linger, even after the last credit-default swaps have been unwound, about America's capacity to project influence in the world.

How Bush Gained the Power to Spy on You without Security Justifications



After enduring weeks of blistering criticism for Attorney General Alberto Gonzales's inartful elisions about the National Security Agency (NSA) spying activities, the Bush Administration has successfully forced on Congress a law that largely authorizes open-ended surveillance of Americans' overseas phone calls and e-mails. How did they do it?






The Protect America Act of 2007 -- the title alone ought to be warning that unsavory motives are at work -- is the most recent example of the national security waltz, a three-step Administration maneuver for taking defeat and turning it into victory.




The waltz starts with a defeat in the courts for Administration actions -- for example, the Supreme Court's extension of the rule of law to the US military prison at Guantánamo in the 2004 case of Rasul v. Bush, or its striking down of the military commissions in 2006 in Hamdan v. Rumsfeld. The second step does not follow immediately. Rather, some months later, the Administration suddenly announces that the ruling has created a security crisis and cries out for urgent remedial legislation. Then (and here's the coup de grâce) the Administration rams legislation through Congress -- the Detainee Treatment Act of 2005, or the Military Commissions Act of 2006 -- that not only undoes the good court decision but also inflicts substantial damage to the infrastructure of accountability.




This time, the sordid dance began with a bad ruling for the government, a ruling that demands some context to be understood.




In January the Administration suddenly announced that it was submitting the secretive NSA "terrorist surveillance program" to the Foreign Intelligence Surveillance Court, or FISC, a closed judicial process established by the 1978 FISA law to handle search warrants for foreign intelligence purposes. The move came as federal appellate courts in Ohio and California seemed on the cusp of ruling the NSA's domestic surveillance efforts illegal as violations of FISA and possibly the Fourth Amendment. It seemed a way to forestall defeat in those cases.




But in early summer, a FISC judge declined to approve part of the NSA's activities. While the ruling remains classified, it apparently focused on communication that originated overseas but passed through telecom switches in the United States.




Modern telecommunications work by breaking communications into packets of data and routing them through a network of connected computers. Messages do not travel in a linear fashion: A message from Murmansk to Mali might be routed through California. Many of the largest switches routing international data are located in the United States. As USA Today reported in May 2006, the NSA is already tapping those switches. And since January, the government appears to have obtained "basket warrants," allowing it to trawl this data freely, without any judicial or Congressional oversight.




It seems likely that the judge objected because the NSA was collecting calls that originated overseas but ended in the United States. The NSA can generally get a warrant for such communications -- unless there is no evidence that the person under scrutiny is a terrorist. A broad-brush NSA surveillance program, especially one that generates its leads through data-mining, the science of extracting information from large databases, might have exactly this problem.




The second step in the waltz came several months later, with Administration allies such as House minority leader John Boehner invoking the FISC ruling on Fox News as justification for a new law. As usual, the Administration and its allies had no compunction about using classified information -- such as the ruling -- when it helped them politically. And as usual, the Administration artfully concealed the full details of the ruling even while insisting on it as a spur to immediate action. By waiting for the last week of the Congressional session, the Administration in effect cut off the possibility of meaningful debate.




The third step of the waltz has a grim familiarity about it: enactment of a law that is in no way limited to addressing the narrow "problem" created by the FISC ruling. Rather, the Protect America Act is a dramatic, across-the-board expansion of government authority to collect information without judicial oversight. Even though Democrats negotiated a deal with Director of National Intelligence Mike McConnell that addressed solely the foreign-to-foreign "problem" created by the FISC ruling, the White House torpedoed that deal and won a far broader law.




To those who have followed this Administration's legal strategy closely, the outcome should be no surprise. The law's most important effect is arguably not its expansion of raw surveillance power but the sloughing away of judicial or Congressional oversight. In the words of former CIA officer Philip Giraldi, the law provides "unlimited access to currently protected personal information that is already accessible through an oversight procedure."




Like the Constitution's Framers, this Administration understands that power is accrued through the evisceration of checks and balances. Unlike that of the Framers, its mission is the transformation of limited government into a government that is not accountable to anyone.




On Monday, the Administration defended the Protect America Act as a "narrow" fix and rejected accusations that it authorized a "driftnet." To see how disingenuous these claims are requires some attention to the details of the legislation.




The key term in the Protect America Act is its licensing of "surveillance directed at a person reasonably believed to be located outside of the United States." This language has a superficial reasonableness, since domestic surveillance has long been understood to raise the most troubling abuse concerns.




But the trouble with this language is that it permits freewheeling surveillance of Americans' international calls and e-mails. The problem lies in the words "directed at." Under this language, the NSA could decide to "direct" its surveillance at Peshawar, Pakistan -- and seize all US calls going to and from there. It could focus on Amman, or Cairo, or London, or Paris, or Toronto... Simply put, the law is an open-ended invitation to collect Americans' international calls and e-mails.




Further, the law does not limit the collection of international calls to security purposes: Rather, it seems the government can seize any international call or e-mail for any reason -- even if it's unrelated to security. Indeed, another provision of the law confirms that national security can be merely one of several purposes of an intelligence collection program. This point alone should sink the Administration's claim to be doing no more than technical fiddling. While the FISA law limited warrantless surveillance absolutely, this law licenses it, not only for national security purposes but also for whatever purpose the government sees fit.




Of further concern is the "reasonably believe" caveat. This means that so long as the NSA "reasonably" believes its antennas are trained overseas, wholly domestic calls can sometimes be collected. And since the NSA uses a filter to separate international calls from wholly domestic calls, it need only "reasonably believe" that it's getting this right. It's this new latitude for error that is troubling, especially because this isn't an Administration known for its care when the rights and lives of others are at stake. It remains deeply unclear how much domestic surveillance this allows.




The problems created by this loosening of standards are compounded by the risibly weak oversight procedures contained in the law. Rather than issuing individualized warrants, now the Director of National Intelligence and the Attorney General can certify yearlong programs for collecting international calls. The program as a whole is placed before the FISA court, which can only invalidate those procedures and claims that are "clearly erroneous." The government thus has to meet an extraordinarily low standard, in a one-sided judicial procedure in which the court has no access to details of the program's actual operation.




Congressional oversight is even more laughable. Attorney General Gonzales, that paragon of probity and full disclosure, is required to report not on the program's overall operations but solely on "incidents of noncompliance." Of course, given how weak the constraints imposed by the law are, self-reported noncompliance is likely to be minimal.




Finally, some advocates and legislators have taken comfort in the law's six-month sunset provision. But this means that the act will be up for authorization in the middle of the presidential campaign, an environment in which the pressures to accede to Administration demands will be even higher than usual. And the law doesn't really sunset after six months: The provision is artfully drafted to allow the NSA to continue wielding its new surveillance powers for up to a year afterward.




The Protect America Act, in short, does not live up to its name: It does not enhance security-related surveillance powers. Rather, it allows the government to spy when there is no security justification. And it abandons all but the pretense of oversight. The result, as with so many of this Administration's ill-advised policies, is power without responsibility -- and it is by now all too clear how wisely and carefully this Administration wields power in the absence of accountability.




One coda to this story is worth adding. The Justice Department is unlikely to take action against Representative Boehner for his partisan invocation of classified information on network news. Newsweek reported this week that former Justice Department lawyer Thomas Tamm is being investigated apparently in connection to leaks of information about the NSA's domestic surveillance. So goes Gonzales Justice: Politicized manipulation of classified information gets the green light, while hardworking career officials become targets for speaking out when they see the law being violated.




A White House Plan to Erode Our Liberties

Early this week, judge advocates halted two prosecutions in the Guantánamo military commissions established under the 2006 Military Commissions Act (MCA). This is not the first setback the Administration's second - tier court system has hit; the Supreme Court invalidated an earlier iteration of the commissions in 2006. And it won't be the last. But while this week's setback likely will be speedily surmounted, it casts an unexpected light on the MCA's real purposes, and what's at stake when the Bush Administration plays politics with national security.

Understanding the significance of this week's ruling means delving into a bit of procedural arcana. The devil in the MCA is, almost literally, in the details -- and unless we attend closely to the rococo details of the statute, we'll miss the ways in which the Administration intends to slowly erode our liberties.

At the beginning of this week, the military commissions' two judges -- Army Col. Peter Brownback and Navy Capt. Keith Allred -- dismissed charges filed against Omar Khadr and Salim Hamdan. The rulings focused on a question of categorization -- basically, the judges found that Khadr and Hamdan had been wrongly classified. But how did this happen?

The MCA, which created the military commissions, states that only an alien who is an "unlawful enemy combatant" can be tried in a military commission. It also defines "unlawful enemy combatants" in tremendously sweeping terms to include anyone who has "materially supported hostilities." Many civil libertarians, including myself, expressed grave concerns about the scope of this provision. Read in tandem with recent Supreme Court cases, it might be taken not merely as a gateway to trial by military commission but also as a sweeping new executive detention authority.

The MCA doesn't say how a person gets designated as an "unlawful enemy combatant." But all except one of the detainees at Guantánamo have already all been classified as enemy combatants by a procedure known as a CSRT, or Combatant Status Review Tribunal. (The one exception is a prisoner recently transferred to the base.) CSRTs are shoddy summary procedures in which the detainee has barely a role and cannot respond to the secret evidence used to detain him.

Problems arose this week not because of the flaws in the CSRT procedures but because the definition of "enemy combatant" that the CSRT uses isn't the same as the definition of "unlawful enemy combatant" in the MCA. Judges Brownback and Allred focused on this divergence and basically told the military that it couldn't fit a square peg in a round hole: A person designated by a CSRT as an "enemy combatant" isn't an MCA-compliant "unlawful enemy combatant."

Nevertheless, Hamdan and Khadr likely qualify as "unlawful enemy combatants" under the MCA's absurdly sweeping definition. So the likely next step will be a do-over. (And a do-over appears easy: The MCA allows a CSRT or "another competent tribunal" to do the designation.) This stumble for the commissions, in short, is unlikely to turn into a fall.

At one level, this is just another story of Bush Administration incompetence: No one looked at the Pentagon's rules when they were drafting the MCA. Today, we find out there's a technical mismatch. Just another screw - up, right?

Well, no. It's more than just peculiar: The MCA was enacted to allow the military commissions to go forward. And yet the provision that couples the detention system and the new military commissions wasn't carefully drafted.

But this is simply implausible in this situation. A tremendous amount of care went into the drafting the MCA, as one glance at its elaborate provisions shows. A great deal of care, for example, went into giving government torturers and their bosses retroactive immunity -- including through the specification of the precise month and day that the immunity would kick in. In a statute drafted with tremendous care -- and word - by - word White House editing, I do not doubt -- the disparity is not just evidence of familiar incompetence: It is evidence of something far more troubling.

In obtaining a broad definition of "unlawful enemy combatant" at a time of partisan panic and electoral heat, the Administration has laid the groundwork for justifying future detention operations on firmer legal grounds. It is stashed away as a weapon to be leveled against the basic human liberty from governmental detention. Today, the definition may be a gateway to the military commissions -- but that was always a secondary end. In the heat of crisis, the same provision may well be invoked for far, far more.

After all, military commissions function as a mere auxiliary to the present detention system. Consider more closely the cases of Khadr and Hamdan. What do they win by winning this week? A return ticket back to Guantánamo's endless hell of cages, beatings and suicide. Just because they cannot be tried, argues the Administration, doesn't mean they cannot be held -- even indefinitely.

Any victory for a detainee in a military commission, indeed, is a hollow one so long as the government asserts authority to detain them indefinitely regardless of whether they are convicted in a military court.

There are other bits of the MCA that betray a gap between the White House's claimed need for speed and the facts on the ground. Take interrogation rules: Standing in the White House surrounded by 9/11 family members, President Bush solemnly declared the "urgent" need for new law because of the CIA's need for new interrogation rules. The need was urgent, argued Bush, because the Geneva Convention rules about interrogation were "vague," and the CIA desperately needed guidance.

But vagueness wasn't the problem and the need wasn't pressing. In February 2002, the Administration had rejected the Geneva rules in favor of an open - ended standard of "humane" treatment. As Fritz Schwarz and I have argued, this standard meant nothing: What was "humane" depended on a mushy "all things considered" approach that allowed executive officials to override a detainee's dignity if they thought the need compelling enough. And the Administration used this vagueness to promote and put into practice harsh measures like "cold cells" and "waterboarding."

And there was no rush either. The CIA is still waiting for an executive order that sets out new interrogation rules and new limits on coercive interrogation. The forward - looking changes to the antitorture rules were no response to immediate needs.

Consider this: If -- heaven forbid -- another attack were to occur, think about how much easier it would be to use this new statutory framework to secure a new and harsher set of coercive interrogation rules. That's the situation the MCA sets up.

What this week's rulings show is that the White House's protests about the urgency of the MCA were false and that the Administration was going for bigger fish. It was laying the foundation of a far broader detention and coercive interrogation policy for the future. And in large part, this effort has succeeded.

This is why the MCA needs to be rolled back: It is far more than a piecemeal erosion of the rights of Guantánamo detainees. It is the spearhead of a more sustained and long - term incursion on all our civil liberties. Senator Christopher Dodd was one of the first to introduce legislation pushing back against the MCA. Many pieces akin to his bill have been introduced in a piecemeal fashion -- most important the restoration of habeas corpus -- but none is as comprehensive as Dodd's bill.

There's no chance Dodd's bill will pass this Congress, but the votes to overcome a filibuster, let alone a veto, just aren't there. Nevertheless, it should be passed into law as soon as politically feasible. Pieces of it -- such as habeas restoration -- are getting some significant attention, although to date not enough. (And for this Congress to dissolve without restoring habeas corpus would be a heavy strike against its Democratic leaders.) It is Congress today that must fix the structural damage it inflicted in the MCA -- and the quicker it does so, the safer all our liberties will be.

Sayonara to Checks and Balances?

"Checks and balances" has a nice ring. But it's a currency that doesn't go a long way in Washington today.
The Military Commissions Act of 2006, of MCA, passed by the House and Senate is a wholesale assault on the idea of a limited government under law.

It will be taken by the Bush Administration as a blank check to torture, to detain indefinitely without just cause, and to trample the values that win America respect in the world. From tomorrow, counter-terrorism is the "land of do as you please" for the President and the wise men of the Defense Department -- those savants who brought you Iraq, the gift that keeps on giving (at least if you're a jihadist).

The MCA comprehensively assaults two ideas: The idea of checking executive power by laws. And the idea of a separate branch of government ensuring those limits are respected. These are the basic tools of accountability. The MCA frontally attacks both of these -- although only time will tell whether it succeeds.

How does the Military Commissions Act assail checks and balances? Consider the key issues of detention and torture.
The MCA says nothing explicit about the detention power. Indeed, I would argue that nothing in the legislation ought to be read to imply
Here's how the Addington play for detention power will work. The opening definition of the Act describes elaborately what an "unlawful enemy combatant" is. Why? The term is a neologism. The laws of war do not use or define this term. Indeed, it is a mutation of a phrase used in a subordinate clause of a 1942 Supreme Court opinion. Nothing else in the Act directly turns on this definition--although only an "alien unlawful enemy combatant" can be subject to trial by military commission. So why bother with the elaborate definition? And why extend the definition to U.S. citizens as well as non-citizens?

Back in 2004, the Supreme Court, in the now well-known Hamdi v. Rumsfeld decision, stated that an "enemy combatant" captured in hostilities could be held for the duration of those hostilities. The Court made very clear it was talking about only the limited context of the ground war in Afghanistan, not some amorphous and unending "war on terror." But Addington et al. will, however, take Hamdi's sanction of detention--and extend it far, far beyond Hamdi. It will be a detention power that applies anywhere and anytime.

There are two ways in which you -- citizen or non-citizen, resident of Topeka or Timbuktu -- can become an "unlawful enemy combatant."

The first way is if you engage "n hostilities" or "purposefully and materially support" hostilities. This sounds reasonable enough until you realize that no-one has the slightest clue what it means to "purposefully and materially support" hostilities. Do you need to intend to aid the hostilities? Or is it enough to intend to give the support? Would purposely giving to a charity that then gave money to Hamas count, even if you knew nothing about the Hamas? What about writing an editorial that gave "aid and comfort" to the enemy -- say, by criticizing the Administration's Iraq policy?

The second way is -- if it's even possible -- more dangerous: You are designated an enemy combatant by a Combatant Status Review Tribunal -- the Potemkin proceedings jerry-rigged at Guantánamo -- or you are designated by "another competent tribunal" created by the Defense Secretary.

It's the latter that catches in the throat, because the MCA does not define what Rumsfeld's "competent tribunal" must look like. Rummy himself with the always-fair-and-impartial Addington? Five Syrian torturers (like the ones to whom the U.S. sent the hapless Canadian Maher Arar)? A bunch of guys who flip coins for your liberty? Sure, why not? The MCA doesn't stop the executive from using any of these, provided Rumsfeld gave them power and hence made them "competent."

At least for non-citizens, moreover, that would be that: For the first time in U.S. history, an Act of Congress singles out a group of persons--non-citizens--and deprives them of any right to challenge their detention wherever they are picked up. No non-citizen would, the MCA seems to say, be able to challenge this detention. And while citizens are certainly entitled to a hearing, the Government will fight tooth and nail to make sure this hearing doesn't allow any effective inquiry into the facts on which a detention is based. So no judicial review -- and no accountability.

The same dynamic is at play in the anti-torture rules. The MCA alters a criminal statute called the War Crimes Act, which imposed criminal sanctions for certain violations of the laws of war.

Until recently, the United States could proudly point to a long history of supporting a universal ban on torture, and to a strong record in ensuring that those who in fact tortured did not escape accountability. No longer. Now a gamut of horrendous kinds of treatment will be non-criminal -- and, the Bush Administration will argue, within the discretion of the President.

Start with the substantive anti-torture rules themselves (which cover both torture and the lesser "cruel and inhuman" treatment). The MCA contains an incredibly complex and convoluted set of definitions. Despite all the cant about clarity, the rules no longer in plain English -- as they were in Common Article 3 of the Geneva Conventions -- and they are so full of holes they might have been tortured themselves.

Here are three examples of the duplicitous ambiguity of the MCA when it comes to torture and abuse.

First, "cruel and inhuman" treatment is defined as acts that cause "severe or serious" pain. We know "severe" is worse than "serious" because "severe" is used to define torture (yes, we'll get there in a moment). But then "serious pain" is defined as "bodily injury" that causes "extreme physical pain." So "serious" pain is only "extreme" pain? Isn't extreme worse than serious? It would seem so--but the MCA is deliberately confusing and circular.

And why the reference to bodily injury? Does that mean that hypothermia and long-time standing and those other wretched "enhanced" techniques more fitting for Stalin's gulags than American facilities are not criminal? Well, yes, I reckon it does.
Second, in another convoluted section, "serious mental pain" is defined in terms of "non-transitory" harms. Thus, if a CIA agent threatens to kill a detainee, or to rape his spouse and his children -- all long-recognized as forms of torture -- that's not torture; it's not even the lesser "cruel and inhuman" treatment.

Finally, the torture statute itself. Almost unnoticed, the Bush Administration has gutted the no-torture rule. It has added the requirement that a person "specifically" intend to cause the pain that amounts to torture. This technical change--foreshadowed in the August 2002 OLC memo -- has tremendous implications. It means that any government agent who says his goal was to get information, and not to cause pain, hasn't tortured no matter how bad the things he does. If the person water-boards or knee-caps a person, or buries them alive, if it's to get information -- well, that's just dandy.

Once again, it's not just the substantive rules that have been assailed: It's also the mechanisms to ensure the rules are followed. Under the MCA, there is no accountability for torture. The MCA cuts off courts' power to hear claims of torture by aliens held as "unlawful enemy combatants." And it vests the President with power to interpret the relevant laws of war. So if he says that "cold cell" and sexual abuse are not "cruel and inhumane," that's the end of the matter.

There are two reasons for hope. First, any reading of the Act that reaches an untrammeled detention power may be unconstitutional. The Supreme Court in the 2004 case of Rasul v. Bush -- in what one day will be called "famous footnote 15" -- strongly hinted that even non-citizens captured overseas have Due Process rights. Combined with another clause of the Constitution called the Suspension Clause, this means the unchecked detention power and the jurisdiction-strip are likely unconstitutional.

Second, even if the War Crimes Act has been amended, the Due Process Clause also ought still to protect detainees held overseas: Torture is un-American. It's also unconstitutional--and that doesn't change depending on where it's done. Moreover, the law of war, embodied in the Geneva Conventions, is clear: There is no "specific intent" requirement for torture. Countries -- whether it's the United States or North Korea -- cannot unilaterally define down the rules against torture.

"Unchecked and unbalanced" government -- I argue at length in a forthcoming book-- is antithetical to American government. The MCA is also anathema to our best traditions. We must hope it is our traditions that win, and not the selfish partisan posturing that animated this week's votes.

The Osama I Know

(This article is reprinted from The American Prospect.)

In March 1997, Peter Bergen, author of Holy War, Inc.: Inside the Secret World of Osama bin Laden, traveled to Afghanistan for CNN in order to interview Osama bin Laden and became one of only a handful of Western journalists to have met and spoken to the leader of al Qaeda. Here, he talks about his new book, The Osama bin Laden I Know: An Oral History of al Qaeda's Leader.

Why write a biography of bin Laden?

I wrote the book because I have an old-fashioned view of history: People matter. It's impossible to understand al Qaeda without the personal stories of Osama bin Laden and [his deputy] Ayman al-Zawahiri. And it's not as if either of them has now disappeared from history: Not only did bin Laden affect history with the 9/11 attacks, but he continues to influence it. Through his cassettes and videotapes, he is playing an active role in al Qaeda. You have bin Laden on tape ordering the attack on Coalition partners of the United States, and then you see the Madrid bombing. Al-Zawahiri called for attacks on President Pervez Musharraf [of Pakistan], and some time after, they were carried out.

What were bin Laden's early formative experiences?

The picture of the young Osama is someone who was hyper-religious, even by the standards of 1970s Saudi Arabia. But he was also very polite, mild-mannered and shy. And by all accounts, a selfless individual. He was hardworking too, although he didn't graduate from university. So how did he come to become the leader of the world's leading terrorist organization? The short answer is Afghanistan, where he went to fight jihad against the Soviet occupation. At first, people didn't notice him. He had little charisma or leadership skills. But as he fought the Soviets through the 1980s, he became more confident, and his personal bravery was tested. He then decided to set up his own organization, even though his friends and relatives told him not to: It's suicide, not jihad, they argued. But it's critical that he ignored this advice and chose to set out on his own.

Was this the origin of al Qaeda?

Yes. al Qaeda wasn't an outgrowth of Adbullah Azaam's "Office of Services," as has been suggested elsewhere. al Qaeda grew in opposition to Azzam's organization, not out of it. Azzam's organization had been becoming something like an NGO, which provided education and the like. Bin Laden didn't want to do that. He wanted to fight the Soviets by forming his own group. But this is also an early example of an interesting trait of bin Laden's: He acts on impulse and doesn't follow good advice. Azzam didn't think the Arab jihadists in Afghanistan were all that important to the anti-Soviet effort. So Azzam wanted to pepper them among different Afghan units and use them as morale-boosters. Bin Laden didn't listen. And at the end of the day Azzam was right: It was the blood of Afghans that won the war against the Soviets, along with lots of money from the United States and Saudi Arabia.

What's the importance of Ayman al-Zawahiri to bin Laden and to al Qaeda?

Bin Laden and al-Zawahiri first met in 1986, and they have developed a symbiotic relationship. Bin Laden got status and credibility from al-Zawahiri, who had been in prison in Egypt for three years, and was a serious political thinker in a way that bin Laden wasn't. But al-Zawahiri needed bin Laden's money. And, in any case, al-Zawahiri hasn't ever had any real leadership skills. He's just not attractive enough as a leader. People who know them both now say that al-Zawahiri isn't the "brains" of the pair anymore. In fact, it's bin Laden who's been the one that focused al Qaeda on the "far enemy" in the United States. And you have to remember that bin Laden is now 48, and he is very much his own man. If bin Laden were to die or be captured, al-Zawahiri wouldn't be able to achieve the same level of influence.

What influence does bin Laden have now personally?

Bin Laden's tapes are the most widely distributed political tapes in history. So the notion that bin Laden doesn't have any operational command over al Qaeda is just nonsense. And his speeches persuade people: He now has a 65 percent approval rating in Pakistan. This charisma is due in part to a great back story. He's a billionaire who could have been partying in St. Tropez, but instead he went off to fight the Soviets. That shouldn't be misunderestimated, as the president might say. So bin Laden is still now giving broad, strategic guidance to jihadists. He's pumping up the base. It's still "al Qaeda the organization," and not just "al Qaeda the ideology" that makes a difference. Take Mohammad Siddique Khan, one of the July 2005 London bombers, who left behind a videotaped message. He talks about bin Laden as being a leader. He also talks about the situation in Iraq. That tape was made in Pakistan, not in Leeds. It was made by al-Sabah, or "the Clouds," which is the al Qaeda production company. It has al-Zawahiri spliced in, talking about the al Qaeda offer of a truce to European countries. So, although we don't know all the facts yet, it seems that the London operation was an example of "al Qaeda classic," rather than just the al Qaeda ideology at work, as happened in Madrid in 2003.

How has the war in Iraq changed bin Laden's plans?

Whether or not you agree with the war, one thing's clear: The Iraq war greatly aggravated terrorism, and it will go on for decades whatever the United States does. Even if it breaks up into lots of little civil wars, it's going to be an effective training ground for militants. There's an analogy with something Zbigniew Brzezinski (who was President Carter's National Security adviser) once said. He was asked in 1998 about his support for the Afghan mujahideen and famously replied: What's more important, "some stirred-up Moslems" or the end of the Cold War? What's happening now is that war in Iraq is a similar sort of gamble. We just don't know now whether democracy will come to the Middle East, which is the final goal. And we don't know whether it'll be worth it in the end. And even if we win democracy, there can still be bad outcomes in the long-term. President Bush has said that it's better to fight the terrorists in Baghdad than in Boston. But this is a very short-term view. And it wrongly assumes that there is a finite supply of terrorists. A lot of people have told me that 9-11 was a tactical success for bin Laden, but a strategic failure. It was clearly against Islam, and he lost the support of a lot of people, even his son Omar, so it was counterproductive for him in the end. But now Iraq has been what he hoped Afghanistan would be.

What has damaged al Qaeda?

Well, all indicia for terrorism, like the number of attacks and the U.S.'s popularity ratings, are trending in the wrong directions. But there have been some interesting improvements in Indonesia, where I just got back from. What happened there was real public diplomacy -- it was the aid after the tsunami. And this shows that anti-Americanism is not entrenched. What's important is not what we say, but what we do. Also, terrorists are their own biggest enemy. Take the second bombing in Bali (in Indonesia). It only killed Indonesians and struck just as the tourism industry was beginning to recover. Now you have all kinds of Indonesian clerics rushing to condemn al Qaeda's interpretation of jihad. The same is true in Jordan, with the hotel bombings (in November 2005), and in London, with the July 2005 bombings. Recall that one of the areas hit was Edgware Road, which is one of the most Arab areas in London. We really need to be emphasizing that the terrorists are killing many, many innocent Muslims. The biggest problem for al Qaeda is that they know what they are against but not what they are for. They have killed a lot of Muslim civilians, but they haven't offered an attractive vision of what they want. There's a lot of vague talk of the return of the caliphate, but that's about as likely as the return of the Holy Roman Empire. It ain't going to happen. And as for a Taliban-style theocracy from Morocco to Indonesia, well, most Muslims, even those in Saudi Arabia, don't want that.

This article is available on The American Prospect's website.
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