FISA Court Provides Model for Drone Dilemma

The latest defense versus civil liberties issue to come up concerns the Obama Administration's heavy use of missile attacks from remotely piloted vehicles (RPV's or drones) to kill Al Qaida and affiliated terrorists, especially if the targets happen to include American citizens.  Civil libertarians, especially Democrats, are very worried that citizens, according to the Constitution's Fifth Amendment, ought to face arrest, indictment and conviction at trial before suffering death or punishment.  The proper resolution of these concerns ought to be the passage of a court patterned after the FISA Court established in 1978 following President Nixon's surveillance of political enemies and anti-war groups during his Administration.

Michael Isikoff of NBC News recently obtained and published a Department of Justice "White Paper" offering legal justifications and standards to apply when targeting American citizens in the ongoing campaign against terrorist groups overseas.  It says, "senior operational leaders of Al Qaida or an associated force" may be targeted if they present an "imminent threat of violent attack" to the United States.  Imminence is not defined as having clear intelligence that a specific attack is about to happen.  The NBC site explains rather, that an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities."

This goes to the nature of the type of struggle American leaders have to grapple with.  Gone are the days when an American defector, donning the uniform of Nazi Germany in World War II or North Korea during the Korean War, made himself vulnerable to American attack simply by that act.  The war is not declared in the traditional sense of the term, it is not against the government of a recognized nation state, and the combatants on the opposing side do not wear identifiable uniform.  They are also outside the boundaries of the United States, typically in lawless areas not under the control of the local government, such that normal police and judicial procedures like arrest and extradition are out of the question.  In such cases, is it all right for the President, CIA Director or Secretary of Defense simply to give an order or sign a form stating that a certain person is marked for death? 

In the American system, probably not.  There should be some type of oversight of the Executive Branch's call, but it can't go through the regular courts due to the time constraints of acting to mitigate deadly threats, nor can it be conducted in public in order not to tip off terrorist targets and make them and the rest of the world privy to our intelligence.  The clear solution is to involve all three branches of the U.S. government along the lines of the FISA Law (Foreign Intelligence Surveillance Act of 1978).  

The Legislative Branch (Congress), would pass a law defining terms and parameters and setting standards under which individuals could be singled out as terrorist threats.  The law would also commission a special court.  The Executive Branch (President or Executive Departments concerned with security) would bring the evidence or intelligence to the Court for its examination.  The Judicial Branch (Special Court) would determine if the intelligence justified the targeting according to the legal standards of the Act, and approve or deny the request.  That's pretty much how the FISA Court operates now in order to approve the surveillance of suspected U.S. citizen spies within our territory.  An 11-member court appointed by the Chief Justice of the Supreme Court and housed within the Department of Justice Building provides the oversight, making sure that national security is maintained, but only after an established threshold of suspicion has been reached.  Thus can the nation defend itself against foreign-based U.S. citizen enemies without giving any future potential rogue Administration unchecked power over life and death.

Obama Masters Foreign Policy

The recent successful end of the rebellion in Libya marks another milestone in President Barack Obama's conduct of foreign policy.  This latest in a remarkable string of successes is all the more striking given the president's lack of international or defense credentials when he ran for office.  It says a lot about his basic outlook, validating a measured and principled approach to the world in contrast to the wasteful, unprincipled and ultimately counterproductive methodology of his predecessor in office. While Obama has certainly shown no aversion to the use of force when he considers it necessary, he has consistently shown an astute capacity to tailor the scale of the action to the need at hand.

On his third day in office, Obama fulfilled campaign promises by signing executive orders ending torture and closing secret CIA prisons.  These actions were met with relief around the world. Juxtaposed with this was his order three months later to kill Somali pirates holding American merchant sea captain Richard Phillips hostage.  The lesson seemed to be that the U.S. could and would stand firm against criminal thuggery and extortion while upholding its traditional principles--that it was not an either/or proposition as the Bush-Cheney administration had contended.  Why not both?

President Obama followed this up with the first visionary appeal by an American president to the people of the Middle East on their own soil with his landmark Cairo Speech of June 4, 2009.  In it he spoke out against the allure of violence by stating, "So long as our relationship is defined by our differences, we will empower those who sow hatred rather than peace, and who promote conflict rather than cooperation that can help all of our people achieve justice and prosperity."  And in a passage that now sounds prophetic, he continued,

"But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn't steal from the people; the freedom to live as you choose.  Those are not just American ideas, they are human rights, and that is why we will support them everywhere.  Suppressing ideas never succeeds in making them go away...and we will welcome all elected, peaceful governments--provided they govern with respect for their people."

That these words were delivered in the Egypt of the corrupt and oppressive dictator Hosni Mubarak is not inconsequential.  To what extent these appeals contributed to later events may be revealed in  historical studies to come, but it cannot be denied that the American outreach Obama initiated in his early months culminated in the October 9, 2009 announcement that the new president had been awarded the Nobel Prize for Peace.  In the words of the Nobel Committee, "for his extraordinary efforts to strengthen international diplomacy, and cooperation between peoples...Obama has as president created a new climate in international politics."

This climate was revealed in the Arab Spring of 2011, when the citizens of Tunisia and Egypt successfully agitated for freedom and democracy and ousted their authoritarian rulers.  Uprisings also took place in Libya, Syria and Bahrain.  Obama's adroit handling of the situation in Libya, focused on air support and enlisting the contributions of allies, ultimately resulted in the overthrow of the odious regime of Moammar Ghaddafi without a single American casualty at a cost of about $1.5 billion: a clear delineation from how the Bush Administration went about regime change in Iraq.  There, U.S. boots on the ground resulted in American losses of 4,481 dead and 32,195 wounded at a financial price tag of $757.8 billion in direct costs and possibly $1.9 trillion, according to the Congressional Budget Office, including indirect costs.

Speaking of the inherited wars, Obama personally made the bold decision that killed Osama bin Laden in May despite potential diplomatic fallout with Pakistan, and also recently eliminated English-language Al-Qaeda recruiter Anwar al Awlaki in Yemen.  His stepped-up use of drone attacks has decimated the terror group's leadership in Pakistan.  Meanwhile, all American forces are scheduled to be out of Iraq by the end of this year and Afghanistan by 2014. The Obama scalpel has proven to be a far more effective and economical strategy than the Bush-Cheney bludgeon.  While they excelled at braggadocio and posturing, Obama quietly shows good judgment and gets results.  The contrast could not be more refreshing nor more helpful to America's image and interests. 

Re-Examining Afghanistan

The dismissal of Gen. Stanley McChrystal and his replacement by the celebrated Gen. David Petraeus has engendered not only discussion about whether his counterinsurgency efforts will be more effective, but whether our intervention in Afghanistan should be continued at all. There are many persuasive considerations that point to the conclusion that it should not. Let's take a look at the rationales behind our continued presence there.

The first is to fight terrorism, specifically the Al Qaeda organization that masterminded the 9/11 attacks back in 2001. Yet CIA Director Leon Panetta reports there are only an estimated 50-100 Al Qaeda operatives in the country. There are very few terrorists there. 100,000 troops to look for less than 100 enemies? For nine years? It is thought the Al Qaeda leadership is across the border in Pakistan, where they are by the same intelligence estimates thought to number less than 300. The whole cadre is estimated to be fewer than 500 in the entire Middle East. Trying to defeat them with a large army in one country is futile. They simply disperse and set up shop somewhere else. They are in Pakistan, but also Yemen, Somalia and various other places. They are much more a law enforcement than a military problem.

The second is to support the "legitimate" Afghan government. Yet by all accounts President Hamid Karzai stole the 2009 election that kept him in power. His brother, Ahmed Wali Karzai, is reputed to be one of the biggest opium dealers and influence peddlers in the country. Others in Karzai's ruling coalition circle are similarly unsavory, including the notorious Uzbek warlord Abdul Rashid Dostum. Are these the kinds of people to win the allegiance of the Afghan people or to send young Americans to die for?

A third justification given is to keep the Taliban out of power. Mindful of what he may need to do to stay in power once his foreign props are gone, Hamid Karzai has been making increasingly explicit overtures to coming to a modus vivendi with those selfsame Taliban. It appears likely they will enter the coalition soon anyway. Fighting to stave that off for a couple of more years hardly seems worth the cost. And speaking of cost, how long can the U.S. continue to spend $100 to $130 billion at a time of economic recession and deficit at home?

In short, the enemy is no longer there, the government is not worth fighting for and we cannot afford the expense. It is time to begin winding down this rather pointless and tragically costly exercise. The July, 2011 target date for beginning a withdrawal is none too soon.

Obama on Afghanistan

President Obama has so far had to spend the greater part of his first ten months in office cleaning up the Stygian mess left him by George W. Bush. His speech last night on Afghanistan certainly falls into that category. As a candidate Barack Obama said Iraq was the wrong war. He said he would wind down there and ramp up in Afghanistan, where Al Qaeda had been based and where its Taliban enablers had ruled and were once again regaining strength. There is some semblance of sense to this. Iraq was indeed a colossal blunder, and there was reason to pursue Al Qaeda in Afghanistan.

Once becoming President, Obama augmented the 30,000 troops he inherited from Bush with another 30,000. Now, after after long study and consideration, he has settled on sending another 30,000 and plans to keep them there until beginning to draw down in July, 2011. It's an Obama Afghan "surge," if you will, designed to pacify the countryside and allow time to train up competent Afghan security forces to take over the work themselves. Will it work? Well, that depends on what you mean by "work."

There is no doubt another 30,000 American soldiers will tamp down violence around the country. There will be increased casualties as they enter hostile ares to establish a presence. If they stay and hold for awhile, the losses will then decline. That was the pattern in Iraq, and in areas in Afghanistan where the increased personnel has already been committed.

But the real problem will be to establish anything lasting. The Taliban is indigenous and we are transient foreigners. Tribal leaders will determine the long term situation, not the United States. The only way to change that would be to keep a lot of troops there for ten to twenty years and to spend a couple of hundred billion dollars in aid. Obama realizes that is something the American people will not stand for. Nor should they.

Pakistan will determine the regional fate of Al Qaeda, not us. Al Qaeda is no longer in Afghanistan, anyway. Intelligence testimony is that there are no more than 100 al Qaeda in Afghanistan. They are across the border in Pakistan. The President paid attention to that in the speech, saying repeatedly that the security of "Afghanistan and Pakistan" is a vital interest of the United States. The limitation, of course, is that Pakistan is a sovereign country that does not want an American army on its territory. For its success, therefore, the goal of eliminating Al Qaeda in Pakistan's western tribal regions depends on the Pakistani Army being the hammer while the U.S. presence across the border in Afghanistan is the anvil. That places great reliance on an army and a government that have proved much less than dedicated to actively prosecuting any such sustained effort.

In this light it is little wonder Obama took such a long time to come to a decision on strategy. He has no good options. He has seemingly settled on the political expediency of not leaving too early to anger the hawks while trying not to stay too long to anger the doves. With a year and a half to play with, who knows, maybe he could even get really lucky and have a Predator strike nail Osama bin Laden. In the meantime, he will hope that a period of relative quiet in Afghanistan will be accompanied by enough progress in Pakistan to claim success and get the whole miasma behind him in time for the 2012 election. That's about what it comes down to.