Wednesday, December 14, 2011

Phil Harris & Alice Faye 1946-12-15 A Present for Phil

From the Buck Benny Podcast page

Parts of Mexico are like Late Roman era frontier areas

Examine the graphic below, from this very interesting update on the state of things down Mexico way, provided by the always fascinating Small Wars Journal.

The Sanka Freeze dried version: Corruption in and around the town of Ciudad Mier was so rife that what has in essence happened is that the only functioning government is run by drug cartels, and co-opted police. In fact, civilian population had fled the town, around 6000 people either going across the nearby U.S. border or to shelter in neighboring towns. A rift, and war between the 'Gulf Drug Cartels' and "Los Zetas" the former armed enforcer of those cartels, precipitated this migration. The town no longer had a Mexican federal presence. The state of affairs was not limited only to this town but is widespread in many towns the border state of Tamaulipas. These areas have become no go zones for the Mexican government. So, the solution? Send in the army, create garrison towns, and hope the inkspots spread. Note the legend for the graphic, and you'll see the situation. Here's the description from the SWJ:

The Mexican federal government is implementing a prototype program to reestablish its authority in the state of Tamaulipas, Mexico overrun by the cartels and gangs. Specifically, it is garrisoning an Army unit in a 100 acre modular base in close proximity to the abandoned town of Ciudad Mier. Ciudad Mier had been abandoned in late 2010, with most of its 6,300 residents becoming internally displaced persons (IDPs), due to the conflict raging between the Zetas and Gulf cartels. The establishment of the Army garrison (battalion size/600 soldiers) resulted in about two-thirds of the residents of Ciudad Mier returning back to the town.

The intent of the fortified town prototype in Ciudad Mier is to create an island of Federal authority and stability that can then be expanded to retake the surrounding lands that have been lost (what the Mexican government terms “areas of impunity”). This will be undertaken by the creation of new vetted (and uncorrupted) police forces that will then be established in nearby communities. It is assumed that the Ciudad Mier garrison will patrol the countryside in its area of responsibility (AOR) and function as a rapid deployment force that can then come to the aid of these new police forces when they are threatened by larger cartel commando units. No mention has been made of civilian defense forces (militias) being formed in support of the military garrison and police units— though such potentials exist and the creation of those units would have many benefits.

That sounds somewhat familiar. Iraq awakening anyone? The Federales may want to get in touch with Chuck Petraeus, for some advice, if indeed they have not already done so. How has this project worked out so far? Pretty good:

The presence of the army soldiers, who arrived in the second half of 2011, “is gradually helping the people of Ciudad Mier and all of Tamaulipas regain the tranquility that had been snatched away from them by the criminals,” Calderon said.

He said homicides fell by more than 40 percent between the first and second halves of 2011, although he also acknowledged that “the road is long” and much work still remains.

The mobile military barracks, which the president formally inaugurated on Thursday, are capable of housing 600 troops.

The installations are the first of their type in the country, the Defense Secretariat said, noting that the materials used allow them to be taken down easily and moved to other areas as necessary.

The barracks, which occupy an area of 40 hectares (100 acres), respond to the need for mobile units capable of reacting to the contingencies that may arise in Tamaulipas state….


Here's the conclusion of the SWJ piece, bringing in the parallel to late Rome / Holy Roman Empire period of history:

This is pretty much an unheard of development with regard to mature, stable, and modern states. Rather, it is characteristic of centralized states expanding into frontier areas (those expanding territorially) and such states losing control over expanses of their lands (those being overrun by raiders and barbarians). This is very much reminiscent of Roman, and later Holy Roman, Empire frontier towns (burgwards in Europe during the late imperial and post-Western empire eras. The raiders of those eras, however, were early on based on the Germanic tribes and Huns (Magyars) as opposed to today’s cartel (2nd/3rd phase) and gang (3GEN) groupings. Modern parallels to US firebases in Vietnam may be made but the context and type of insurgency (criminal vs Maoist-inspired) make such contentions highly problematic. The historical parallels to the criminal-soldier threats of the late Roman Empire and Dark Ages appear even more viable in light of the multitude of atrocities committed (torture, mutilations, and beheadings), although in this instance with a post-modern contextual overlay.

What is a 'post-modern contextual overlay'? Heck if I know. But, this is pretty interesting stuff. It certainly does bring to mind those mentioned periods of Roman expansion and garrisoning (Roman Britain comes to mind).

The 2012 Defense Authorization Bill: Supreme Court/ACLU bait.

Count on it.

As a part of 2012 Defense Authorization Bill, there is provision for indefinitely holding U.S. Citizens in military detention. From the 'what if this had happened during the Bush administration department,' we see unlikely authors/proponents of said provisions. Michigan's own long time Senator and Bush era hand-wringer Carl Levin (D) is defending the measure.

From Wired, the gist of the story is HERE

Pannetta: Bad idea.

General Petraeus: Bad idea.

Senator Smalley: Bad Idea

The Pauls: Bad Idea

You get the idea. While the relevant sections do not require detention of U.S. Citizens by the military, they allow it. Note the language used; 'may' as contrasted with 'shall.' That's the worry that is the kernel of Wired piece. That's the Constitutional issue, because of Article 1, section 9 and Amendment numero six. Texts:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.


In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence

Here's the relevant portion of the bill:

Subtitle D--Detainee Matters


(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons- A covered person under this section is any person as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).

(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.

(d) Construction- Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities- Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

(f) Requirement for Briefings of Congress- The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be `covered persons' for purposes of subsection (b)(2).


(a) Custody Pending Disposition Under Law of War-

(1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.

(2) COVERED PERSONS- The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1031 who is determined--

(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and

(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.

(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

(b) Applicability to United States Citizens and Lawful Resident Aliens-

(1) UNITED STATES CITIZENS- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

(2) LAWFUL RESIDENT ALIENS- The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

(c) Implementation Procedures-

(1) IN GENERAL- Not later than 60 days after the date of the enactment of this Act, the President shall issue, and submit to Congress, procedures for implementing this section.

(2) ELEMENTS- The procedures for implementing this section shall include, but not be limited to, procedures as follows:

(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.

(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.

(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation session which is ongoing at the time the determination is made and does not require the interruption of any such ongoing session.

(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other government officials of the United States are granted access to an individual who remains in the custody of a third country.

(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.

(d) Effective Date- This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date.

Couched as it is, in the typically obscure legaleze of a bill, the import is not readily apparent. But the gist seems to be this: U.S. citizens can be detained as enemy combatants or something akin, until cessation of hostilities, provided that they have 'survived' a 'determination' procedure the end result of which is the conclusion that they have substantially aided AQ, the Taliban, or other entities that are fighting our military forces, or those of our allies in the ongoing GWOT, Contingency Operation, or whatever it is being called these days.

So, for instance, if it is 'determined' in the requisite way, that Barney from Iowa is knowingly sending cell phones to Pakistan, which cell phones are used as detonators for IEDs in Afghanistan, Barney can be detained indefinitely.

Now, the text of the 6th Amendment requires that citizens be given quick trial. Indefinite detention needn't be quick. One might also add that there are some 5th Amendment due process worries as well. It reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This amendment does mention times of war and public danger as allowing for exceptions to its requirements, but as applies to military personnel. This though the text from Article 1 makes no such distinctions.

The questions here are not new. Can something like FISA courts serve as the 'due process', part of the determination process? How about military tribunals, or things like them? Would such entities provide sufficiently 'independent' and speedy determinations? There is also provision for regular congressional briefing by SECDEF, as concerns detainees. Can these somehow be included in that determination process?

It seems a case can be made for positive answers to these sorts of questions, despite the protestations in the Wired piece:

So despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end.

That seems a bit overwrought. (Not to say, that such moves should not give pause.)

Has there been precedent for such treatment of citizens? One naturally thinks of the Civil War, and Lincoln's suspension of Habeas Corpus and perhaps, some espionage cases from WWII.

One could object, pointing out disanalogies. In the case of the Civil war, it was, after all a Civil war, complete with an organized military rebellion, contiguous to CONUS. The conflict followed the standards of state-on-state warfare, which allowed for easy determination of when hostilities could be counted as over with.

That ain't the case with GWOT. We really have no idea when hostilities would be counted as finished. Yet, one can rejoin; this difference is an artifact of war's new 21st Century face. Where before, we only had something like the armies of Nation States, or similar socio/political entities to contend with, entities that fielded uniformed armies, navies, etc., now we have a decentralized, pan-global cooperative enterprise, tied together by Islamist goals, but committed to use of violence to attain its goals, in what are unconventional ways, as compared to the good old days of state on state conflict. The tactics favored include, as a first and basic tactic, targeting of civilian populations by hidden operatives in mufti. Its strategy, furthermore, is to obtain personnel for its military mission via (among other means), recruitment from within target countries.

Are we to let this fact, this adaptation of theirs to the realities of their inferior military position, deter us from taking steps to prevent the machinations from coming to fruition?

Hindsight provides a couple of hypotheticals to consider: Suppose that Anwar Al Awlaki, while still resident in the U.S., had been 'determined' by whatever procedure will be put in place by USG, to have aided AQ in recruitment. Suppose also that the government wanted to exploit this discovery, perhaps tracing his contacts, so as to disrupt operations of AQ. Suppose that an arrest and trial in civilian court would ruin this possibility. Suppose, further that the military were allowed to indefinitely detain. Next, imagine a FISA court, or military tribunal could be convened, evidence aired. Would you pull the trigger on that arrest and detention, or would you go the civilian court route? It does depend on whether or not you consider his acts as merely criminal, or as acts of war, doesn't it?

Now, consider that same sort of hypothetical, except now as applied to Nidal Hassan. I think most would take the more 'secret' route in that case, because there is a justice system in place, in the U.S. military, that serves as a healthy parallel of the civilian court system. In general, the risk of that system screwing up, and 'framing' an innocent, are low.

I see no a-priori reason why such a course could not also be taken, and such a robust and fair system could not also be used for U.S. civilians that are arguably at war with their country. The conceptual apparatus is there. They are essentially unlawful enemy combatants. Why is there an assumption that the only way such folks can be fairly tried is in the civilian system? And there is enough legal precedent for the argument that this would not run afoul of the Constitution.

And as for the risk of indefinite detentions being very long, and perhaps life-long detentions, that is a consequence of the strategy chosen by the enemy. They have quite consciously and carefully chosen an organizational structure, and set of tactics and overall strategy that creates those very 'amorphous' conditions.

Anyone that freely, and of their own accord, consents to take part in that enterprise, chooses to take that risk, forfeits that much moral consideration. This is true of today's citizen just as much as it was of the civil war era citizen that took on the related risk and forfeited his rights.

It's just too bad for them that they chose to do so in the matrix of an organization that chooses unconventional means. In either case, the treasonous U.S. citizen chooses to take the attendant risks for the duration of the conflict. So, if the duration is indeed somewhat hard to determine, that's their fault, not ours.

Too bad. So sad.