Thursday, December 20, 2012

Obama and Terror, a Four-Year Scandal

By Michael B. Mukasey

From the outset, the Obama administration’s handling of the most sensitive secrets of the war on terror has been worrisome. In April 2009, the Justice Department released previously classified memoranda that described the standards of the CIA’s interrogation program, thereby making known to our enemies the limits of what they might face if captured. The release also demoralized those within the intelligence agency who were told they could no longer rely on the memoranda—and would, therefore, be judged by a standard different from the one in place when they acted.
Two years later, following the killing of Osama bin Laden, revelations about the intelligence recovered in the raid on his Pakistan compound rendered much of that intelligence useless, because terrorists found out what we had learned. A few months after that, administration officials confirmed to the media that the United States had been involved along with Israel in implanting a computer virus in Iranian nuclear-enrichment centrifuges that caused physical damage, thereby justifying by our own professed standards any retaliation Iran might undertake. And, most recently, newspaper reports have disclosed planning for retaliatory operations against the terrorists who murdered our ambassador to Libya and military and other personnel present in our consulate in Benghazi.
The recklessness with which the Obama administration has allowed these precious and deadly secrets to be revealed in the light of day—and in all cases for political reasons, to buff the president’s image—is a little-covered national scandal. And it is on display throughout the text of Daniel Klaidman’s Kill or Capture: The War on Terror and the Soul of the Obama Presidency(Houghton Mifflin Harcourt, 304 pages). There are several details in this book that Klaidman, a veteran Newsweek correspondent, could only have uncovered from leaks of classified information at the highest levels. At least two revelations have the potential to do real damage. Some of the details Klaidman reveals about the nature of the evidence gathered at Guantanamo Bay—gleaned from what was, until this book was published, secret surveillance of detainees—are bound to complicate prosecution of suspected terrorists who were held there, including 9/11 mastermind Khalid Shaikh Mohammed, who also personally beheaded (“with my sacred right hand”) the Wall Street Journal reporter Daniel Pearl in 2002.
The other revelation involves foreign policy. We are told that a plan to release Yemeni prisoners from Guantanamo to the Saudis so that they could be put into the intermittently effective Saudi deprogramming regimen for al-Qaeda associates came undone when the Yemeni president affronted the Saudi king by suggesting Yemen was doing the monarch a favor in allowing the kingdom to take those Yemenis. This mildly titillating story may well make it more difficult for the United States to conduct diplomacy in a part of the world where it is not helpful to be the source of gossip that embarrasses those in power.
But leaving aside the sloppy handling of such sensitive information, the public has reason to be disturbed by Klaidman’s account of the way the administration made its decisions in the war on terror. For example, Klaidman reports that President Obama is unwilling to use conventional law-of-war detention, which could take terrorist combatants off the battlefield for the duration of the conflict. Because this is not a conventional war, we can’t predict when or how it will end and therefore detention could be indefinite—indeed, even perpetual. The possibility that a system of ongoing review might be put in place to assure at least that no prisoner is held beyond a time when he presents any realistic danger seems either not to have occurred to anyone, or to have been rejected as too similar to what was in place under George W. Bush.
Harsh political reality thus far has prevented Obama from releasing prisoners at Guantanamo, notwithstanding his pledge to close that facility, indeed his order that it be closed—because they are simply too dangerous to release. He has determined that henceforth no new prisoners will be brought to Guantanamo and the only prisoners who remain there will be the legacy of his predecessor. Klaidman portrays the president as far more concerned with the imagined excesses of the war on terror than with the consequences of another attack. And he fears his possible successors as well. Discussing the possible use of detention power, Obama has supposedly said: “You never know who is going to be president four years from now. I have to think about how Mitt Romney would use that power.”
The options now in place for dealing with terrorists who obey no laws of war is that they will be either killed by remotely piloted drones or captured and tried and thereby treated better than lawful combatants who obey the laws of war. So the administration that wears its concern for human rights on the sleeve of its military has defaulted to kill rather than capture. The introduction of drone technology was the achievement of then Defense Secretary Robert Gates, initially motivated in part by budgetary constraints; however, the technology was not as developed nor its use as widespread during the Bush administration as it has become during Obama’s tenure. Thus, drones do not bear the dreaded Bush trademark. An administration that seeks at all costs to avoid being identified with its predecessor—even to the point of substituting the terms “unlawful enemy combatant,” used in legal literature for about a century, for “unprivileged enemy belligerent” and “foreign contingency operation” for “war”—feels comfortable, unlike its predecessor, having lethal force as its default enforcement method.
The president’s take on Islamism emerges as a fabric of platitudes: Obama’s “cosmopolitan background…gave him a more visceral feel [than his predecessor had] for how much of the world lived—and how they viewed America.” He had traveled abroad to visit his relatives and spent three weeks in Karachi, “a sprawling, congested city throbbing with sectarian strife.” “These experiences helped shape Obama’s belief that what most people around the world desired was adequate food, shelter, and security—lives of dignity, free of the daily humiliations of poverty and ignorance. They were the basis for a coherent set of views about the roots of Islamic rage and the underlying conditions that breed Islamic extremism—the economic despair, the social and political dysfunction that lead young men to become terrorists.” As portrayed here, the president does not seem to have factored into his “coherent set of views” that Osama bin Laden was a millionaire many times over; or that Mohammed Atta, the lead operative in the September 11 attacks, was an upper-middle-class university student, as were other participants in that atrocity; or that those who plotted in 2007 to blow up the Glasgow airport were physicians, as is Bin Laden’s successor, Ayman al-Zawahiri; or that Umar Farouk Abdulmutallab, who tried to detonate himself and his fellow passengers aboard an airplane over Detroit on Christmas Day 2009, was the son of a Nigerian cabinet minister; or that those implicated in plots in the UK are principally those born there who had no connection to a city “throbbing with sectarian strife.”
Nor does the book contain any hint that the president may have considered the possibility that “Islamic rage” and “Islamic extremism” may have some connection to Islam.
President Obama is not the only actor in Klaidman’s book. There was, it seems, a struggle for the soul of his presidency between what Klaidman calls the “Tammany Hall” element, led principally by White House Chief of Staff Rahm Emanuel and representing the forces of political expediency, and “the Aspen Institute” element, led by State Department legal adviser and former Yale Law School dean Harold Koh, representing the forces of high-minded idealism.
Koh is shown wielding influence that far outstrips his rank because President Obama values his academic heft in pushing the debate leftward. He is described as having “an enormous intellect” and a background congenial to the president, a “former constitutional law professor himself.”
Koh’s lofty disdain, moreover, for settled notions of process—he tried to get the deputy attorney general to take away from Solicitor General Elena Kagan the authority inherent in her office to determine the government’s litigation position in certain detainee cases because he disagreed with her views—appears to resonate with the president’s own approach to governance. Thus, in the summer of 2009, the president convened a meeting at the White House in which Koh was invited to brief him and certain others in the administration on issues relating to detention. This was a meeting to which others with a stake in that issue, including the CIA and the Defense Department, were not invited, apparently so that Koh could try to influence the president without the inconvenience of contrary views.
Koh’s presentation as described here was less an intellectually disciplined briefing than a locker room pep talk, ending with, “Don’t let the past control the future.” Klaidman summons the characteristic eloquence of Vice President Joe Biden, in memorable prose uttered after the president left the room, to establish that the pep talk seemed to have worked: “‘You f—king did it,’ the vice president said, jabbing Koh in the chest. ‘You f—king connected with him, and that’s not easy.’”
Although Klaidman blandly describes this episode as “a departure from protocol that ruffled some feathers,” it was actually a fundamental departure from basic rules of the road that normally define how decisions are taken on matters of national concern. Such rules—prosaically referred to as the “inter-agency process”—are designed to assure that those with a stake in any such decision participate in a way that assures both that the president will get the benefit of their advice, and that they will be able to go forward at least with an understanding of how and why a result they may oppose was reached. Disdain for that process results in not only sloppy execution, but also bad decisions, and it raises serious questions about the competence of those who are supposed to be in charge.
Such disdain, and such results, are on gaudy display here. A case in point is the decision made in November 2009 to abort the military-commission trial of Khalid Shaikh Mohammed and transfer him to a civilian Article III court in Manhattan—this, when KSM already had announced his intention to plead guilty and proceed to sentencing and, presumably, martyrdom. Attorney General Eric Holder sought and received the authority to decide where the Guantanamo detainees would be tried once the prison was closed. This was true even in those cases in which military-commission proceedings had already commenced—notwithstanding that all detainees were in the formal legal custody of the Department of Defense, not the Department of Justice. Holder first made his leaning toward a civilian court known to Obama while the two were watching the fireworks on July 4, 2009, from a terrace at the White House. “It’s your call, you’re the attorney general,” the president responded.
That result was in full accord with the preference of Harold Koh, expressed in terms not of rigorous jurisprudence, but of pop psychology. To try KSM in Manhattan, according to Koh, would “‘show confidence in our system,’ it would be a ‘redemptive act’ precisely because it is what the terrorists don’t want us to do.” Yet, whatever Koh’s “enormous intellect” may have revealed about what terrorists might want, actual events demonstrate that real terrorists often show a decided preference for making a hash out of legal processes by turning them into political theater. That was what we learned from the year-long circus that was the sentencing proceeding in a civilian court of Zacarias Moussaoui following his guilty plea as the so-called 20th hijacker. Tossing terrorists into the civilian legal system because they are purportedly afraid of it is rather like tossing Brer Rabbit into the briar patch because he purportedly was afraid of it—and it’s likely to yield the same success.
By the time Holder announced that KSM would be tried in New York, he had not discussed the decision with anyone who would face its consequences, notably local authorities in New York, who turned against it when they came to realize the chaos such a proceeding would bring to lower Manhattan. Klaidman describes some of the episodes that marked the course from the announcement of that decision in November 2009 to the announcement in April 2011 that it had been reversed. Along the way, Holder provided the curious assurance to the Senate that, the niceties of due process notwithstanding, a conviction in the KSM trial was assured. There was also the near acquittal of a defendant brought to New York from Guantanamo and charged in the 1998 bombing of U.S. embassies in Kenya and Tanzania, a proceeding that was supposed to illustrate the near certainty of convictions in civilian terrorism trials but wound up so rattling Congress that it passed a statute barring the use of any funds to bring defendants from Guantanamo to trial in the United States. That is what necessitated Holder’s retreat.
These episodes included a squabble among Holder, Koh, and Emanuel at a White House meeting that ended with what Klaidman describes as the president’s attempt “to lead his team to higher ground,” but winds up in the telling as a descent into bathos. The president read aloud from the oration of the judge who sentenced would-be shoe bomber Richard Reid; the judge told Reid he was “not a soldier” and “no big deal” and then reached through fractured paraphrase for the eloquence of John F. Kennedy (“we will bear any burden, pay any price, to preserve our freedoms”) and Abraham Lincoln (“the world is not going to long remember what you or I say here”), only to achieve principally the grandiloquence of Douglas MacArthur (“See that flag, Mr. Reid?…That flag will fly there long after this is all forgotten”). As Klaidman describes it:
Obama put down the speech and looked around the room. He didn’t fix his gaze on anyone in particular; he just stared for several moments. Then he spoke. “Why can’t I give that speech?” Without another word, he rose and walked out of the room.
No less disconcerting is Klaidman’s account of how the attorney general decided to open—or reopen—an investigation into whether CIA agents had committed crimes when they questioned some high-value detainees using “enhanced interrogation techniques.” That dreadfully inartistic term falsely suggested the concealment of unspeakable criminality, but in fact, the techniques were analyzed in detailed legal memos by Justice Department lawyers that, although revised at least once, concluded uniformly that they violated no standards applicable when the memos were written. Even more notably, these techniques had not been used since 2003. Holder, over the objection of every living former CIA director and the then incumbent director, Leon Panetta, released those memos.
When the public outrage Holder expected failed to materialize, he pressed on with investigations of the intelligence officers who carried out the interrogations. Career prosecutors in the eastern district of Virginia had investigated each instance of claimed unlawfulness and had concluded that none merited prosecution, drafting detailed memoranda describing their conclusions and the reasons for closing each of the investigations. Holder, by his own account in testimony, and by the account in this book, never read those memoranda. Moreover, he was well aware that such an investigation could damage morale within the agency, not to mention the damage it could cause to the careers of those under investigation regardless of the outcome—which came years later when the reopened investigations were closed again for lack of evidence of illegality.
What motivated him to press the issue? By Klaidman’s account, Holder was influenced strongly by an article in Vanity Fair by Christopher Hitchens, who had volunteered to be waterboarded and videotaped his experience of the procedure. Waterboarding was the most celebrated and severe of the CIA techniques and had been imposed on precisely three senior al-Qaeda terrorists. After his own experiment, Hitchens wrote an article pronouncing the technique torture.
The word torture, in addition to being a handy epithet, is defined in the applicable statute that criminalizes torture as acting under color of law with the specific intent to cause “severe physical or mental pain or suffering.” “Severe mental pain or suffering” is defined as “prolonged mental harm” resulting from any of several causes, including “severe physical pain or suffering” or the threat thereof, or the threat of imminent death; “severe physical pain or suffering” is not defined. Hitchens, a talented journalist and critic whose renown as a drinker matched his renown as an atheist, never claimed to have consulted the applicable law or to have experienced any prolonged effects from his ordeal; he simply announced that what he had experienced was torture. According to Klaidman, Holder watched the video of Hitchens’s experience, which showed that Hitchens had “lasted for fewer than 10 seconds before asking for mercy” and was “both mesmerized and repulsed.”
Klaidman says Holder was so dogged because he carried a lingering sense of guilt from the time of his service as deputy attorney general in the Clinton administration when he had helped bring about the pardon of Marc Rich, a financier charged with tax evasion whose wife had contributed huge sums to the Clinton campaign and library. (Notably, although unmentioned in this book, Holder failed on that occasion as well to consult with prosecutors in his own department who had brought the Rich prosecution.)
So there you have it. The chief law-enforcement officer of the United States knowingly damaged morale in the nation’s principal intelligence agency by reopening investigations previously closed by career prosecutors within his own department without bothering to read why they did so. Holder acted on the strength of a fewer-than-10-second simulation of waterboarding performed on a writer devoid of any acquaintance with the law, and on his own guilty conscience over a previous lifting of tax-evasion charges in a case in which he also did not bother to determine why career prosecutors in his own department had acted. In so doing, he moved with exquisite efficiency to undermine faith simultaneously in law enforcement and national security.
Klaidman does not disclose his sources for the account he presents, although the book is preceded by two pages entitled “A Note on Sources,” in which he outlines the steps he took to assure accuracy. The only source he appears to deny using directly, and it is a fairly casual denial, is the president himself:
Occasionally I write about the emotional state and interior thoughts of President Obama and his top aides. In doing so, I am not taking literary license. Those accounts are based on reporting—either from specific comments the president has made that directly express his state of mind, or from reasonable inferences from sources I have interviewed who have observed and spoken to him.
The president is portrayed often as maddeningly detached and above the fray, but it is impossible to believe that the accounts of private conversations between him and members of his administration were not cleared with him.
One obvious source is Holder. This emerges not only from such apparent accounts as his one-on-one discussion with Obama about bringing KSM to trial in the United States—a story that could have had only two authoritative sources—but also from less obvious data points. For example, the account of Holder’s friction with Rahm Emanuel consistently portrays Emanuel as unprincipled and narrowly political and Holder as idealistic and thoughtful—always a telling indicator in a behind-the-scenes account.
Consider as well how Klaidman accounts for Holder’s absence from the famous photo of the president, an open-mouthed Hillary Clinton, and others gathered in the White House Situation Room watching in real time the operation that killed Bin Laden:
The operational planning surrounding Bin Laden was known to only a tiny circle of national security officials, on a need-to-know basis. One person who was not brought into the loop was the attorney general. He was Obama’s closest friend on the cabinet and the proposed raid raised important legal questions. But Obama determined that the mission would be a “Title 50 operation,” conducted under the auspices of the CIA. As a covert action, there had already been a legal finding prepared, so additional Justice Department approval was not required.
This excuse makes no sense. Title 50 is that part of the U.S. Code that sets forth, among other things, the authorities of the CIA. It authorizes the agency to enlist the military in the conduct of covert actions when finding that such an action is appropriate has been signed by the president. In this case, that put Leon Panetta, director of the CIA, in command, directing the operation carried out by Navy SEALs overseen by Admiral William McRaven.
But the Bin Laden operation bristled with legal questions, or at least questions that lent themselves to the kind of analysis that lawyers bring to bear, beyond those answered simply by finding that such an operation could be authorized. These included questions relating to mounting such an operation in a country that was a nominal ally of the United States, and ones related to risks, if any, of collateral damage.
Indeed, a memorandum from Panetta that surfaced after the operation disclosed that McRaven’s forces were authorized to do only what had been briefed to the president—without specifying what that was—and that if anything not included in that briefing was encountered, they were required to seek further guidance. The possible need for additional guidance that could have engaged legal questions was and is apparent. That the naked finding necessary to authorize the operation had been made simply does not suffice to explain the attorney general’s absence.
Here’s what does make sense, even though Klaidman does not connect these dots. Holder, he tells us, was regarded by many in the White House as a loose cannon. And his legal pursuit of intelligence officers made certain that his fellow cabinet members at the State Department and the CIA would have every reason to distrust him. That is a far more plausible explanation for Holder’s absence than the suggestion he was kept out of the loop because the he did not have a need to know. That notion simply does not hold water.
In the end, like all insider accounts written with the cooperation of insiders, what we have in Kill or Capture is a portrait the Obama administration wants available as he seeks reelection. This is how Obama and his men wish to be perceived. So beyond the question of whether everything really happened as Klaidman describes lies the key question: Does this portrait of the people close to Obama and the process by which they managed the war on terror recommend four more years of stewardship?

Michael B. Mukasey, a lawyer in private practice in New York and former federal judge, was the attorney general of the United States from November 2007 to January 2009.


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