[Freemanlist2] LACK OF INTELLIGENCE IN A WAR ON TERROR
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Volume VIII, Number 1,835 Thursday, May 1, 2008 ISRANET DAILY BRIEFING
A Service of CIJR
Canadian Institute for Jewish Research
Prof. Frederick Krantz, Director
P.O. Box 175, Station H
Montreal, Quebec H3G 2K7
E-Mail: cijradmin at isranet.org
LACK OF INTELLIGENCE IN A WAR ON TERROR
THE WAR ON TERROR IS NOT A CRIME
David B. Rivkin Jr. and Lee A. Casey
Wall Street Journal, April 25, 2008
Lynching lawyers, as Shakespeare once suggested, has never appealed much to the legal profession itselfliterally or figuratively. But an exception apparently will be made for a group of attorneys who advised President Bush and his national security staff in the aftermath of 9/11. Theyve been subject to an increasingly determined campaign of public obloquy by law professors, activist lawyers and pundits.
Their legal competence and ethics have been questioned. Suggestions have even been made that they can and should be held criminally responsible for war crimes, because their legal advice supposedly led to detainee abuses at Abu Ghraib and elsewhere. The targets of this witch hunt include some of the countrys finest legal minds
Many positions taken by these attorneys, laying the fundamental legal architecture of the war on terror, outrage international activists and legal specialists. Nevertheless, in a series of cases beginning with Hamdi v. Rumsfeld (2004), the U.S. Supreme Court has upheld many of their key positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during these hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.
Most controversial, of course, was the Bush administrations insistence that the Geneva Conventions have limited, if any, application to al Qaeda and its allies (who themselves reject the Western concepts behind those treaties); and the administrations authorization of aggressive interrogation methods, including, in at least three cases, waterboarding or simulated drowning.
Several legal memoranda, particularly 2002 and 2003 opinions written by [Prof. John] Yoo as deputy assistant attorney general for the Office of Legal Counsel, considered whether such methods can lawfully be used. These memoranda, some of which remain classified, explore the limits imposed on the United States by statute, treaties, and customary international law. The goal clearly was to find a legal means to give U.S. interrogators the maximum flexibility, while defining the point at which lawful interrogation ended and unlawful torture began.
Behind this inquiry is a stark fact. In this war on terror, the U.S. must not only attack and defeat enemy forces. It must also anticipate and prevent their deliberate attacks on its civilian populational Qaedas preferred target. International law gives the civilian population an indisputable right to that protection.
Lawyers can and do disagree over the administrations conclusions. However, its now being claimed that the administrations legal advisers can be held responsible for detainee abuses. This is madness. The lawyers were not in any chain of command, and had no theoretical or practical authority to direct the actions of anyone who engaged in abusive conduct.
For more than 40 years, as part of the post World War II decolonization process, a legal orthodoxy has arisen that supports limiting the ability of nations to use robust armed force against irregular or guerilla fighters. It has also attempted to privilege such guerillas with the rights traditionally reserved to sovereign states. The U.S. has always been skeptical of these notions, and at critical points has flatly refused to be bound by these new rules. Most especially, it refused to join the 1977 Protocol I Additional to the Geneva Conventions, involving the treatment of guerillas, from which many of the norms the U.S. has supposedly violated, are drawn.
The Bush administration acted on this skepticisminsisting on the right of a sovereign nation to determine for itself what international law means. This is at bottom the sin for which its legal advisers will never be forgiven. To the extent they can be punishedor at least harassedperhaps their successors in government office will be deterred from again challenging the prevailing view, even at the cost of the national interest. That is why these administration attorneys have become the particular subjects of attack.
(David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under
Presidents Reagan and George H.W. Bush, and were members of the UN
Subcommission on the Promotion and Protection of Human Rights from 2004-2007.)
WILLFUL BLINDNESS: PROSECUTING THE WAR ON TERROR
New York Sun, April 23, 2008
Andrew McCarthy prosecuted the blind Egyptian cleric, Sheik Omar Abdel Rahman, head of Egypts Islamic Group, in the wake of the 1993 World Trade Center bombing. Willful Blindness: A Memoir of the Jihad (Encounter, 250 pages, $25.95) engagingly recounts that experience, for Mr. McCarthy is a good writer. He was also a sharp, aggressive prosecutor, and his book authoritatively makes several important points, correcting misunderstandings about the case and highlighting issues that have received insufficient attention.
To begin with, Al Qaeda was not, as many believe, involved in the February 1993 bombing, Mr. McCarthy reminds us, nor the subsequent Landmarks Plot, which targeted the United Nations, New Yorks Federal Building, and two tunnels. Established in 1988, Al Qaeda was only in its infancy in 1993.
Egypt had a spy within Sheik Omars entourageAbdo Haggag, a sympathetic neighbor who turned against Sheik Omar, and who came to see Sheik Omar as a conniver and hypocrite, petitioning for asylum in America even as he railed against it. (The sheik was also a womanizer, and Mr. Haggag resolved to expose him for it.) Mr. Haggag began reporting to Egypts U.N. mission, but American authorities did not know that initially, arresting and indicting him along with the others. The FBI had its own plant among the extremistsanother Egyptian, Emad Salemwho also had ties to Egyptian intelligence. Mr. Salems work after the Trade Center bombinggathering intelligence and acting as agent provocateurled to the Landmarks Plot, planned in conjunction with two Sudanese intelligence agents.
In April 1993, Siddig Ali, a Sudanese émigré, told Mr. Salem he wanted to bomb two armories. Seeing he had a live one, the FBIs Salem egged him on. Soon afterward, Ali said he wanted to bomb the United Nations instead, because he had contacts in the Sudanese government mission who would help them obtain the credentials necessary to drive a vehicle laden with explosives into the complex. The Sudanese agents introduced Ali to a Palestinian, Mohammed Saleh, with whom they also had close ties. Saleh owned a gas station in Yonkers and agreed to provide fuel for the bombs. The trial transcript also shows one agent discussing with Ali a target for possible attack, with Ali taking direction from the Sudanese official.
Willful Blindness misrepresents a crucial exchange touching on just this point, leaving out key parts, although the entire discussion exists in court records.
The transcript strongly suggests that Sudanese intelligence was far more involved in the Landmarks Plot than Sheik Omar Abdel Rahman, who was presented by the prosecution as the central figure. In late May, Mr. Salem met privately with Sheik Omar, who suggested forcefully that Mr. Salem discard plans to attack the United Nations and focus instead on the American military. Mr. McCarthy describes Sheik Omar as slick and ambiguous in this exchange, suggesting that he did not rule out the possibility of targeting the U.N., and fails to report a subsequent exchange, captured on the same surveillance tape: As they drove home from Sheik Omars apartment, Salem related the sheiks response to Ali, who understood clearly that the U.N. plan had been rejected, telling Mr. Salem, No, Im not going to do it. Yet before the ride ended, Ali had decided to go forward anyhow, because, he said, I have all the people in place from the embassy.
Despite the central involvement of Sudanese agents in the Landmarks Plot, they were not indicted.
[T]he Clinton administration would not likely have agreed to indict the agents and demand the Sudanese government produce them for trial; focusing attention on a hostile state would have risked stirring a public outcry for more serious action.
Sheik Omar is a loathsome figure, but the case against him was weak. The FBI opposed indicting him and wanted to deport him. Mr. McCarthy devised a clever strategy in which several crimes were linked together in a conspiracy ostensibly carried out by the Jihad Organization of which Sheik Omar was said to be the leader
. Consequently, many people think Sheik Omar was involved in that attack. Yet as Judge Michael Mukasey, now Attorney General, affirmed of Sheik Omar and his co-defendants: [T]heyre not charged with committing the World Trade Center bombing.
Mr. McCarthy unwittingly illustrates how President Clintons policy of treating terrorism as a law enforcement issue caused it to be understood as one: If Mr. McCarthy had indicted the Sudanese intelligence agents, Americans would have understood Sudans role in the Landmarks Plot, and Sheik Omar would not occupy such a central role in our collective consciousness.
And, finally, we might have better understood the nature and scope of the terrorist threat, including the real possibility that it did not change with that bombing, as the Clinton administration claimed, but remained just what we had known it to bestate-supported violence. The misunderstanding left America vulnerable on September 11, 2001, and may yet leave this country vulnerable to another major assault.
(Laurie Mylroie is an American Enterprise Institute adjunct fellow and author of
Study of Revenge: The First World Trade Center Attack and Saddam Husseins War Against America.)
POST-9/11 REFORM FOLLIES
New York Post, March 6, 2008
Six-plus years after 9/11the most devastating intelligence failure in US historysigns are rife that our intel bureaucracies still havent cleaned up their act.
Post-9/11, Congress was quick to slice and dice the bureaucracies, creating a new Office of the Director of National Intelligence to preside over the CIA and the other 15 agencies that make up the intelligence community. But did the reform really change much? Consider the Nada Nadim Prouty case.
In the decade before 9/11, the CIA and FBI both discovered that Soviet agents had penetrated their highest ranks (Aldrich Ames at CIA, Robert Hanssen at FBI). Each supposedly redoubled its counterintelligence efforts to prevent future such catastrophes.
Yet late last year, the public learned that Prouty, a Lebanese immigrant with close ties to Hezbollahand quite possibly an actual agent of that radical Shiite grouphad managed to get a string of sensitive jobs at FBI and at CIA. The beefed-up post-Ames/Hanssen background checks had utterly missed the false marriage that enabled her to enter the United States and the prominently pro-Hezbollah leanings of her family back home. Our intel agencies desperately need Arabic speakers to have any chance of doing their job in the War on Terror. Yet the hiring pool will be impossibly small if they cant properly vet people who grew up speaking the language.
Even more disturbing are the clear signs of politicized analysis. The CIA can scoop up all the most secret data in the world and still be a total failure if it cant make sense of what it has learnedor if its findings get presented to policymakers in a form distorted by political bias. That was plainly the case with the recent National Intelligence Estimate on Irans bid to build the bomba report that sharply undercut the Bush administrations policies.
In its opening sentence, the declassified summary of the NIE declared that the ayatollahs had halted their nuclear-weapons program five years ago. Yet the same document recorded, buried in a footnote, that the single most important element of Irans nuclear-bomb program - the enrichment of uraniumhas continued unabated.
Experts across the political spectrum, from conservatives like Henry Kissinger to the liberals at the Bulletin of the Atomic Scientists, agree that the NIE was flawed. Director of National Intelligence Mike McConnell basically disavowed it last month, telling Congress the public version should have been written differently.
The apparent goal of the reports authors was to take off the table any chance of a US strike on Iran. In other words, its plain that elements of the intelligence community, dissatisfied with President Bushs policies, pulled off a political coup.
Of course, analysts are supposed to be nonpolitical. Yet ranking intelligence officials plainly are not.
How can the Bush administration remain passive in the face of the intelligence communitys mounting deficiencies? This, too, is nothing new. The president kept CIA Director George Tenet in place for years after the agencys 9/11 failureand even after Tenets slam-dunk judgment that Saddam Hussein was still pursuing weapons of mass destruction. He even awarded him Americas highest civilian commendation, the Presidential Medal of Freedom.
Its plain the current administration wont confront the problem. Will whoever is elected in November also shrink from this cardinal responsibility?
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