The case of the touched-up talking points

It’s time once again for The Future American’s FAIL OF THE WEEK! Every Saturday, I name a person or group who has spent the past seven days behaving in a particularly idiotic way. Since it’s my belief that idiocy knows no politics, nobody is safe.

This week’s fail was brought to you by State Department spokesperson Victoria Nuland. (Is there a pool yet on how long it’ll be before she turns in her resignation? I’m giving it two weeks.) There are probably a lot more people to blame for what was revealed about the department’s revisions to government talking points during and after the U.S. consulate attack in Benghazi, Libya. Here’s why I’m singling her out:

One of the emails obtained by ABC shows . . . Nuland objecting to a paragraph in the talking points that referenced specific terrorist threats in the region because it “could be abused by members [of Congress] to beat up the State Department for not paying attention to warnings.”

So, uh . . . how’s that going? Anyway, the story gets even more confusing:

A source . . . [says] Nuland was raising two concerns about the CIA’s first version of talking points, which were going to be sent to Congress: 1) The talking points went further than what she was allowed to say about the attack during her state department briefings; and, 2) she believed the CIA was attempting to exonerate itself at the State Department’s expense by suggesting CIA warnings about the security situation were ignored.

Whatever her true motivation, we know this: Despite the insistence of the administration, they did have a hand in crafting the talking points and they weren’t purely the work of intelligence agencies. Initial reports that the attack was sparked by protests against a stupid anti-Muslim video were flat-out wrong. The CIA knew there were terror threats in the region. And requests for bulked-up security went unanswered.

Until someone produces a document showing that President Obama and/or then-Secretary of State Hillary Clinton were also directly involved with the talking points, lower-level officials will be the only ones who belong in the firing line. I hate to disappoint Sen. Jim Inhofe (R-OK), who is already talking impeachment despite there being no evidence of an impeachable offense on Obama’s part, not even what would qualify as perjury. (Just kidding. I love to disappoint Inhofe.) But, so far, his and Clinton’s only mistakes were to trust their subordinates not to screw things up.

If you don’t want Congress to “beat up” your department for ignoring warnings, there’s a simple way to avoid that: Don’t ignore warnings. And don’t ignore requests for security that relate to said warnings. If you can’t do that, tell the truth before people see you piling misstep on top of misstep.

Let Putin handle this one

As we discussed this weekend, the immigration status of the Brothers Tsarnaev has sparked skepticism of proposed immigration reforms, some even suggesting their case could “derail” efforts to that end. To which I say: Huh? Reforms from the Gang of Eight have primarily concerned work visas and border security; terrorism didn’t come up in that coverage until the finger-pointing stage of the Boston Marathon attack aftermath kicked off. If Congress wants to add such considerations to the current bill, that’s something else – and a way to add them may come from Canada.

Right now, senators are sparring over whether or not Dzhokhar Tsarnaev should be tried as an “enemy combatant,” which would strip him of certain legal rights normally afforded to U.S. citizens, one of which he is through naturalization. One of those rights is, of course, the right to remain silent. Sen. Lindsey Graham (R-SC) says revoking this particular right will be the best way to get information out of him; Sen. Chuck Schumer (D-NY) says this is unnecessary, and a typical criminal trial will be enough for him.

Before I tell you about the Canadian idea, let’s discuss the “public safety exception” to Miranda rights. This exception is invoked when there is reasonable cause to believe that getting information out of a suspect before reading their rights will help stop an imminent threat to public safety. If statements made during this period are made voluntarily, they can stand in court, while compelled statements cannot. (Read Carl A. Benoit’s excellent piece on this.)

In the case of Tsarnaev, however, we have no more reason to believe that the public safety exception will be applicable; the imminence is no longer there. When he comes to, he likely will, and should, be Mirandized. And after that? Here’s the Canadian idea: After this happened, Conservative MP Devinder Shory (Calgary Northeast) proposed in February that the Canadian citizenship of dual nationals be revoked if they have engaged in terrorist acts. Our 1947 Citizenship Act says this can happen in cases of treason.

Why not do the same in the case of indiscriminate mass violence on U.S. soil, which in the case of the marathon involved foreign citizens as well as Americans? A typical argument against this idea is that it creates another tier of justice for naturalized citizens and immigrants, and can put them at risk of cruel and unusual punishment and/or persecution in their home countries. I say treason and terrorism are acceptable red lines that, if crossed, should be taken as a rejection of American hospitality.

Note the line in the U.S. Oath of Allegiance requiring new citizens to “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” Becoming one of those enemies should mean that one has violated his or her oath to the nation.

Very early thoughts on the Boston bombing

As anyone who knows me can attest, I’m not very good at sentimentality, so I’ll quote my dad’s message of sorrow for the Boston Marathon bombings:

To my American family and friends. Words cannot express my sorrow adequately. I hope and pray that those injured heal quickly. I hope and pray that those responsible are caught and dealt with. I hope and pray for all Americans.

Couldn’t have said it better. It’s 6:32 p.m. CT on Monday as I’m writing this, and I imagine there’ll be plenty of updates over the next few hours. In the meantime, here are my thoughts as I’m watching CNN’s coverage (excellent work so far):

While everyone insists that we should not jump to conclusions, there’s no way it could apply to every potential conclusion one could draw from this attack. I think most of us are past the point of believing that this could possibly be an accident. Gov. Deval Patrick (D-MA) reports that only two explosive devices were found, not the over two that were initially reported; however, that’s enough for a deliberate pattern. We shouldn’t shy away from using the word “terrorism.” It may evoke images of certain types of people, but anyone who has lived long enough knows that terrorism has had and will keep having many faces.

The devices used in the attack have been described as “small” and “crude”; bystanders have reported being struck with ball bearings, which you can buy at any hardware store. That doesn’t make them less deadly, nor does it rule out the possibility of someone getting an order from a sophisticated terror group to carry out an unsophisticated attack. That’s a good way to confuse the situation and shift eyeballs to other suspects. With people flying in from all over the world to run in the marathon, it also doesn’t rule out the possibility of foreign involvement.

Some notes on the timing. Gordon from Michigan, a marathon runner himself, pointed out that the race clock was at 4:09 when the first explosion went off. That’s “top of the bell curve of finishing times,” to quote him. (For the record, Gordon was in D.C. yesterday and is perfectly safe.) Whoever the perpetrator was, he or she knew marathons well, and they seem to have known Boston pretty well, too. And with so many anniversaries – Tax Day, Patriots’ Day, the marathon itself – taking place on April 15, they timed it well enough that there would be an especially high list of possible motivations.

I want to conclude by emphasizing one thing: If you had faith in humanity before the attack, hang on to it. The people who donated blood, ran back in to aid victims and offered their homes as shelter are enough to prove that one attacker isn’t enough to diminish the efforts of thousands of innocents. But by carrying this out at such a massive event, they have not made humanity more immoral – just more afraid.

Enter The White Paper

By now you’ve either read or heard about The White Paper; its official title is Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Operational Leader of Al-Qa’ida or an Associated Force, but we’ll just call it The White Paper. In a nutshell, it’s a Department of Justice document that attempts to find constitutional grounds for the killing of Anwar al-Awlaki, an American citizen by birth involved in a variety of al-Qaeda attacks, and any similar “targeted killings” of U.S. citizens in the future. As you can imagine, not everyone is convinced.

Both The White Paper and White House Press Secretary Jay Carney insist that these types of killings, which have many ifs attached – if a violent attack is imminent, if capturing the target is infeasible and if the operation is consistent with the principles of the law of war – is constitutional. You’ll find many citations of “the inherent right to self-defense,” the Authorization for Use of Military Force (AUMF) and other case law. On the other side, you’ll find many citations of the Due Process Clause, which apparently isn’t as important as it used to be.

The AUMF is probably the biggest problem in this entire debate. Congress has exclusive constitutional power to declare war, and they used it to vote, overwhelmingly, to authorize the president “to use all necessary and appropriate force” against al-Qaeda. In doing so, they set themselves up to shirk their duty to check and balance the executive. Any member of Congress who voted in favor of AUMF and intends to speak out against The White Paper will have a lot of egg on their face. (crickets, probably)

Few Americans will miss anyone, even a fellow citizen, who plans attacks on American soil or people as a member of a terror group – especially that terror group. Certainly nobody misses al-Awlaki. But their gut reaction to the target shouldn’t be the priority. The White Paper says itself that it “does not attempt to determine the minimum requirements necessary to render such an operation lawful.” That should be the priority. Make those attempts.

If The White Paper is to be believed, the mere fact of a U.S. citizen’s association with al-Qaeda is grounds for a targeted killing. (See section II, subsection A for their definitions of “imminent” and “feasible”; they’re . . . rather broad.) Nobody worries about that because they sympathize with U.S. citizens with al-Qaeda links. They’re worried about that because of how much more the government could broaden those definitions. And they’re right to worry.

The biggest concern? Now that The White Paper and its lack of minimum standards has been made public, anyone in Pakistan or elsewhere who has rallied against the presence of drones may now be tempted to do more than just rally. The government can either add all those people to the kill list, or finish what they’ve started and establish who shouldn’t fear being taken out by a drone.

Caught between instability and too much stability

Well, now we know for sure that al-Qaeda was not “decimated” after Osama bin Laden was killed. Its central command may have been, but as we are seeing with the burgeoning crisis in Mali, a decentralized al-Qaeda carrying out many smaller-scale operations can be as dangerous to American citizens and resources as a centralized al-Qaeda carrying out a few major operations. You can’t be “decimated” and “on the run” at the same time, despite President Obama using both terms to describe al-Qaeda on the campaign trail.

Besides the growth of al-Qaeda-linked groups in Mali – they’ve taken over the northern half of the country, which they call Azawad – they were there during the embassy attack in Benghazi, and they were there during this week’s hostage crisis in Algeria, which killed at least one American. A group known as al-Mulathameen (“the masked ones”), an offshoot of al-Qaeda in the Islamic Maghreb (AQIM), which itself is an offshoot of al-Qaeda, took responsibility for the Algeria attack. AQIM itself has claimed responsibility for taking northern Mali.

In the cases of both Mali and Algeria, the international community’s alternative to turning a blind eye to these groups is to side with undesirable leadership. The remaining government in the southern part of Mali took power in a military coup last year. Algeria’s political system includes a president, a prime minister and a bicameral legislature, but its military high command (le pouvoir) makes the ultimate national decisions. Mali is the 16th-poorest country in the world; Algeria is wealthy, but far from economically diverse, and its efforts at liberalization have stalled.

Regardless of how Algerians feel about their government, because of the country’s oil wealth and memories of its civil war, its leadership will enjoy more help from the U.S. and others when trying to get rid of terror groups. They have appeased their people enough for them to be disinclined toward welcoming radical regime change, which might have meant a more stridently Islamist government. Mali, despite its dependence on foreign aid, has not done this.

Assuming putting American boots on the ground is out of the question, the task before the U.S. is to determine how Mali’s neighboring governments can be persuaded and trusted to help contain AQIM. If they have used previous aid monies to develop their economies to the point that their citizens are passive, if not overjoyed, they’d make good prospects. The coupling of a strong military and a strong economy are no substitute for a real democracy, but it’s a step along the way that can work.

Had Algeria’s institutions been as unstable as Mali’s, the hostage crisis could have bloomed into a real invasion on the level of Azawad. Solid and authoritarian is a better preventative combination against terrorism than any kind of volatility.

There’s no actual drone policy

Want more proof that the concept of governance for its own sake has been dangerously devalued? “Election Spurred a Move to Codify U.S. Drone Policy.” Am I supposed to believe that nobody said in 2009 or earlier, “Hey, maybe we should write some rules for this stuff so national security isn’t imperiled by using them haphazardly”? Because that, my friends, would be a fucking tragedy. But not a wholly unexpected one.

The administration has long insisted that drone strikes are careful and legal, but that hasn’t convinced many inside the U.S. and out. The Defense Department and the CIA are wary of new rules, preferring “latitude” and “flexibility.” The Justice and State Departments disagree; their buzzword is “restraint.” Officials say the rules themselves are on physical paper, carried by hand from office to office. Let’s see WikiLeaks and Anonymous try to figure that out.

I’ll give President Obama credit for paying lip service to “a legal architecture” for drone strikes. That doesn’t excuse his administration’s slowness in setting one up, not to mention the previous administration’s evident failure to bother trying. But some basic guidelines aren’t hard to think up:

• Identification. The target(s) must be a known terrorist or directly involved with a known terrorist entity.
• Imminence. The targets(s) must be planning an imminent attack on American soil, personnel, assets, etc.
• Inclosure. All measures must be taken to ensure that no civilians will be in the path of the strike when it is carried out.
• Integrity. If the target is an American citizen, as has been the case, they must have taken up arms against the U.S. or incited others to do so.
• Irrefutability. All measures must be taken to ensure that there is no reasonable doubt of the above four criteria prior to striking.
• Intent. The government of the country in which the strike is planned must be made aware of the strike, as must civilians within a certain distance of the area. (If Israel can drop leaflets to warn Gazans of attacks, so can the U.S.)

These guidelines wouldn’t solve the legal disputes over drones, but they might do one thing: mitigate the likelihood that terror groups operating in Pakistan, Yemen and elsewhere would receive support from people in strike-affected areas. All these people know is that loud U.S. machines are firing at them. There needs to be more of an effort on the U.S.’s part to prove not only that these people aren’t targets, but that the true ones are putting their safety at risk.

Even then, this wouldn’t eliminate the possibility of civilian casualties or damage to civilian institutions. But dropping the idea that the U.S. is at war with all of al-Qaeda, wherever it is, could eliminate the possibility of a self-fulfilling prophecy.

Remember when detention was in classrooms?

I love columns that require me to look for something in the U.S. Constitution. Here’s a selection from the Sixth Amendment: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial . . .” Hear that? Speedy. As in, it has to happen, and it has to happen expediently, not any time you feel like it. That appeared to be the reasoning behind a ruling from a U.S. district court that ruled indefinite detention of terror suspects unconstitutional, and subsequent legislation banning it.

The legislation has taken the form of an amendment in a routine bill outlining the 2013 defense budget. Prominent backers include, naturally, Rep. Ron Paul (R-TX), plus another Republican and two Democrats. Opponents include Reps. Buck McKeon (R-CA) and Lamar Smith (R-TX), who had this to say in a letter to colleagues in defense of last year’s defense authorization law that stripped the right to trial from terror suspects, including those who were U.S. citizens taken into custody on U.S. soil:

No one could possibly favor the unlawful detention of American citizens . . . [The goal of indefinite detention is to] reinforce the protection of American citizens from terrorist attacks.

Clearly these two are aware that the unlawful detention of American citizens is a bad thing; otherwise they wouldn’t deny that they favored it. How is not being assured of the right to trial, which is enshrined in a law older than and superior to the one passed last year, not unlawful? It also carries a presumption of guilt that turns at least 252 years of legal principle upside down. All in the name of protecting the American people, who would need only be tagged as a suspect to get the business end of the 2011 law.

I personally don’t have much problem with its authorization of military custody; a real terror attack would require the military’s involvement, especially if it started from a foreign country. But the Constitution is unequivocal about the right to trial. You can argue over to whom the Constitution as a whole applies – only American citizens, or just people who were in the country at the time? – until the cows come home, but it definitely applies to American citizens. To deny them a trial is patently illegal; to deny the others a trial is potentially inflammatory and could compromise the ability to ascertain vital intelligence. That is unsafe.

There are some things you should do in the name of counter-terrorism and some things you shouldn’t. A couple of good litmus tests are constitutionality and applicability to Americans, and this law has come out pretty acidic on both sides of the testing strip.

School detention would be much simpler

Lately, no political topics have interested me more than constitutionality and the separation of powers. That the separation in the U.S. is so clearly defined is refreshing to me, as I live under a head of state serving in the executive and legislative branches at the same time, and it’s not pretty. It came up in the news again after the White House objected to a provision of a defense spending bill, dealing with the detention and transfer of suspected terrorists.

The provision would require suspects to be held in military custody, as opposed to U.S. civilian prisons. Democrats are divided over this, with the White House and Sen. Dianne Feinstein (D-CA), among others, arguing that this bill limits the president’s authority to make decisions regarding national security issues. Sen. Carl Levin (D-MI), who chairs the Senate Armed Services Committee, argues that the presence of a “national security waiver” in the provision renders this point moot.

That might have made everything acceptable if not for the fact that, as the White House notes, the choice of which option is best for the nation’s security interests is different for every case and must often be made in a very limited amount of time. Where would they be detaining a suspect while they wait to hear back from Congress about whether or not they’ve cleared the waiver? In such instances I’d trust the judgment of the Joint Chiefs of Staff before anyone else’s judgment, least of all that of Congress, who has exhibited poor judgment on everything as of late.

The White House statement also points out that “the military does not patrol our streets.” Should the act of terrorism qualify as an act of war – meaning, explicitly sanctioned by another country’s commanders-in-chief, consistent with the definition of war – then there would be a role for the U.S. military. If it is one person or a group acting independently of their nation’s government, as it usually is nowadays, I would view it as a crime against American civilians, unless they were trying to assassinate the president.

The question then becomes, what is to be done about a foreign civilian who attempts a crime against American ones? As they would be a non-citizen, their eligibility for Fifth Amendment protections is highly questionable. It might be necessary to create new criminal laws dealing with these instances so this doesn’t become a point of disagreement for Congress and the White House again. That this doesn’t seem to be in the books already is dismaying.

Of course, as the White House also notes, if the suspect were captured on foreign soil, civilian facilities would have no role anyway. But laws for that are a whole other column.

It might be OK to sing “Bomb Iran” now

If the most recent thwarted terror plot wasn’t devised by the Iranian government, the two men who failed to carry it out may have just screwed it over in a very big way. But don’t expect many people to believe that this was simply a lone pair of wolves; I certainly don’t. If a smoking gun emerges implicating Iran, as a whole, you can bet there will be calls to scrap sanctions and start a war. In another sense, that could end up being the least appealing option.

The plot included the attempted assassination of the Saudi ambassador to the U.S., Adel Al-Jubeir, and bombing attacks on the Saudi and Israeli embassies in D.C. The pair, belonging to the state-sponsored Quds Force, made an interesting move by looking to a member of a notorious Mexican drug cartel for help with the assassination. Unfortunately, he happened to be a paid Drug Enforcement Administration informant. Whoopsies.

It’s dumb luck that the would-be attackers didn’t sufficiently vet their man. Otherwise, we’d already be drawing comparisons to 9/11 and the ensuing needed revenge. In that sense, though, the U.S. is already boxed into a corner. There’s no way they can afford another war, despite the short-term gains for the arms industry. We were more comfortable with the war in Afghanistan because we weren’t on the slow train to a recession then. Quite the opposite, in fact.

This will be a far more compelling argument against war with Iran than overtired platitudes about how wonderful peace is. True peace is only possible when nobody is giving you a conceivable reason to think about the alternative. An economically isolationist approach may end up being the way to go, although China and Russia would be needed for this to work. Making that happen is only marginally less difficult than a diplomatic solution to the Iran problem.

While I make no claims of expertise in the arena of counterterrorism, my best suggestion is a combined American/Saudi/Israeli effort to take out Iranian weaponry in all its forms. It would be similar to what was done in Libya in terms of actions, but this time the U.S. would have a legitimate stake in it. Speeding up the withdrawal processes in Afghanistan and Iraq would help with the costs. Let’s hope the Iranians hadn’t already thought of that, not to mention the risks of keeping a closer eye on Mexico.

This is what we talk about when we’re talking about scaling back on American military spending. There is a time and place for it, and this could be one of them. Iraq and Libya were not. But at least we have a foreign policy expert who could be of use. I’m just throwing that out there.

Meet the fright-wing extremists

When Jared Lee Loughner shot Rep. Gabrielle Giffords (D-AZ), we responded with political questions: Who or what did he support? Who or what did he really oppose? Who or what led him to such an act? After getting nowhere with such a discussion, we just decided he was crazy. Virtually the same questions are being asked about Anders Breivik in the wake of his shooting rampage in Oslo and Utøya, Norway, and his lawyer is invoking the insanity defense.

Breivik says he was punishing his victims, attendees of a Labor Party youth camp (or, as Glenn Beck so intelligently calls them, “Hitler Youth” – I’m not even surprised anymore), for “treasonous” friendliness to immigration, specifically the Muslim kind. The Atlantic Wire provides us with Breivik’s reading list, which includes blogs that focus on the global “threat” of Islam. They then ask if the right, in general, “owe[s] the world a . . . round of denunciations.”

Those with an abiding belief in nativism are by their nature on the fringes. But the blogs listed in the Atlantic article serve largely as aggregators of news articles on jihadist activity. When they do editorialize, they call for condemnation of acts that deserve condemnation, honor killings and terrorist recruitments among them. Had the attacks not taken place, people would dismiss these blogs as alarmist and somewhat prejudicial, but not dangerous. (I looked.)

The people behind the writings Breivik enjoyed do not necessarily incite the type of act he committed; simply by virtue of existing, they give Breivik and people like him justification. What one takes in when they read them, they take out, sometimes with a false perception that someone will thank them for what they do later. The writings themselves are not the real problem.

The most watered-down version of Breivik’s views would be generally regarded as right-wing, just as the most watered-down version of this guy’s views would be generally regarded as left-wing. But both are members of the fright wing, in which people, normally psychologically disturbed, resort to violence (or incite it) to achieve political ends. Fright-wingers can come from any place on the left-right scale. We only bring up that scale because it’s what we understand.

Therefore, it’s disingenuous to think of irrational acts such as Breivik’s through a political lens that most people consider rational. All we can really do is decide he’s crazy. And for those who were wondering, yes, he does sound like a terrorist to me.