Thursday, May 31, 2012

That was then, this is now: The NYT on secrecy and counter-terror in the Obama years.

A very interesting read from a couple of days ago, in the NYT, having to do with the Obama administration’s approach to dealing with AQ. Interesting, and frustrating. Why the latter? In a word: Inconsistency. Inconsistency from the grey lady.

First thing: I have no problem with the programs described.

Second: Aside from Glen Greenwald, where is the highly visible and sustained outrage from the left? There is a light drizzle, as opposed to the torrential downpour of earlier years.

Third: Granted that intel could be had by capturing these barbarians, rather than vaporizing them, it is still going to be a very difficult proposal in most cases, involving, as it must, insertion/extraction operations not unlike that in ‘Hey Abatobad’ last year. So, I don’t think critics coming from the right are being fair in making this argument. Genuinely ripe opportunities for capture will be few and far between.

Fourth: This story is the result of over a dozen present and past admin folks talking to the NYT, both on and off the record. It is meant to bolster things politically for the boss.

Fifth, and particularly irksome: The NYT obliges with some serious ‘editorial padification’ of the story, and a decidedly positive flattering de-emphasising of critical opinions. Some choice gems will constitute the balance of this post:

When he applies his lawyering skills to counterterrorism, it is usually to enable, not constrain, his ferocious campaign against Al Qaeda — even when it comes to killing an American cleric in Yemen, a decision that Mr. Obama told colleagues was “an easy one.” Beside the president at every step is his counterterrorism adviser, John O. Brennan, who is variously compared by colleagues to a dogged police detective, tracking terrorists from his cavelike office in the White House basement, or a priest whose blessing has become indispensable to Mr. Obama, echoing the president’s attempt to apply the “just war” theories of Christian philosophers to a brutal modern conflict.
Whether or not it is true that he is cloistered in that cave with Brennan pouring over the volumes of famous Catholic philosophers of yore, I don’t know. But, this surely paints a flattering picture, and maybe one intended for Catholic voters, given the recent health care legislation controversies? Naw… Couldn’t be. Some more padifying gems:

A phalanx of retired generals and admirals stood behind Mr. Obama on the second day of his presidency, providing martial cover as he signed several executive orders to make good on campaign pledges. Brutal interrogation techniques were banned, he declared. And the prison at Guantánamo Bay would be closed. What the new president did not say was that the orders contained a few subtle loopholes. They reflected a still unfamiliar Barack Obama, a realist who, unlike some of his fervent supporters, was never carried away by his own rhetoric. Instead, he was already putting his lawyerly mind to carving out the maximum amount of maneuvering room to fight terrorism as he saw fit.
Just for yucks, compare and contrast this way of describing things with how the NYT described the ‘carving out of maneuvering room’ for counter-terror reasons by Bush era lawyers, say, John Yoo, for example. It’s pretty simple. Just Google “John Yoo New York Times”. I did this, and found, among a long list of pontificating editorials this 2005 straight-news article from that time.

Note: The emphasis is much more strongly on the views of the critics of the Bush administration at the time, complete with the typical-for the-day hand-wringing over executive over-reach, concerning the “brutal” EIT, or “controversial” eavesdropping programs. This sort of concern is something curiously lacking in this present piece that discusses death dealing drone strikes and offing American citizen Awlaki. (Or, to be fair here, the critical is present, but it is not heavily emphasized. The article is primarily given over to positive padification, painting the present executive and his aides as subtle, and possessed of finely honed philosophical/legal minds): In this 2005 piece, there are some gems of negatively hued editorial padification, and a heavier emphasis on the critical, indeed, starting at the very top with the headline “A Junior Aide Had a Big Role in Terror Policy”:
Within weeks, Mr. Yoo had begun to establish himself as a critical player in the Bush administration's legal response to the terrorist threat, and an influential advocate for the expansive claims of presidential authority that have been a hallmark of that response.
"One concern that people have raised is that John had a lot of these views going into the government and was perhaps overeager to write them," said Curtis A. Bradley, a law professor at Duke University who, like Mr. Yoo, has written skeptically about the import of international law. "In terms of war powers, you won't find a tremendous number of scholars who will go as far as he does." Mr. Yoo's belief in the wide inherent powers of the president as commander in chief was strongly shared by one of the most influential legal voices in the administration's policy debates on terrorism, David S. Addington, then the counsel to Vice President Dick Cheney. Documents and interviews suggest that those views have been part of the legal arguments underpinning not only coercive interrogation and the prosecution of terrorism suspects before military tribunals but also the eavesdropping program.
[Hey, hold on a minute. Give the NTY some credit here. No “brutal” interrogation language here, but “coercive” Ed.]
Some current and former officials said the urgency of events after Sept. 11 and the close ties that Mr. Yoo developed with Mr. Addington (who is now Mr. Cheney's chief of staff), Mr. Gonzales, Mr. Flanigan and the general counsel of the Defense Department, William J. Haynes II, had sometimes led him to bypass the elaborate clearance process to which opinions from the legal counsel office were normally subjected. Mr. Yoo's January 2002 conclusions that the Geneva Conventions did not apply to the conflict in Afghanistan and that the conventions' minimum standards did not cover terrorists touched off a long, hard-fought battle within the administration, in which lawyers for the State Department and the military services strongly disputed his views. Thereafter, several senior officials said, those lawyers were sometimes excluded from the drafting of more delicate opinions. For example, they said, Mr. Yoo's much-criticized 2002 memorandum with Mr. Bybee on interrogations - which said that United States law prohibited only methods that would cause "lasting psychological harm" or pain "akin to that which accompanies serious physical injury such as death or organ failure" - was not shared with either State Department or military lawyers, despite its implications for their agencies. "They were not getting enough critical feedback from within O.L.C., or from within the Justice Department, or from other agencies," one former official said of Mr. Yoo's opinions. Officials said senior aides to Attorney General Ashcroft also complained that they were not adequately informed about some of the Mr. Yoo's frequent discussions with the White House. Mr. Yoo said he had always duly notified Justice Department officials or other agencies about the opinions he provided except when "I was told by people very high in the government not to for classification reasons."
Emphasis on the critical. Yoo, the junior overstepped his bounds, and did not follow normal protocol and was too secretive, which was, of course, Bush's fault. That was 2005, This is 2012. Savor this positively flavored padification from the 2012 article:

Even before he was sworn in, Mr. Obama’s advisers had warned him against taking a categorical position on what would be done with Guantánamo detainees. The deft insertion of some wiggle words in the president’s order showed that the advice was followed. Some detainees would be transferred to prisons in other countries, or released, it said. Some would be prosecuted — if “feasible” — in criminal courts. Military commissions, which Mr. Obama had criticized, were not mentioned — and thus not ruled out. As for those who could not be transferred or tried but were judged too dangerous for release? Their “disposition” would be handled by “lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice.” A few sharp-eyed observers inside and outside the government understood what the public did not. Without showing his hand, Mr. Obama had preserved three major policies — rendition, military commissions and indefinite detention — that have been targets of human rights groups since the 2001 terrorist attacks…
And, do notice; no quotes from those groups as to how they have reacted to this ‘deftness’. Some more gems

It was shortly after Dec. 25, 2009, following a close call in which a Qaeda-trained operative named Umar Farouk Abdulmutallab had boarded a Detroit-bound airliner with a bomb sewn into his underwear. Mr. Obama was taking a drubbing from Republicans over the government’s decision to read the suspect his rights, a prerequisite for bringing criminal charges against him in civilian court. The president “seems to think that if he gives terrorists the rights of Americans, lets them lawyer up and reads them their Miranda rights, we won’t be at war,” former Vice President Dick Cheney charged. Sensing vulnerability on both a practical and political level, the president summoned his attorney general, Eric H. Holder Jr., to the White House. F.B.I. agents had questioned Mr. Abdulmutallab for 50 minutes and gained valuable intelligence before giving him the warning. They had relied on a 1984 case called New York v. Quarles, in which the Supreme Court ruled that statements made by a suspect in response to urgent public safety questions — the case involved the location of a gun — could be introduced into evidence even if the suspect had not been advised of the right to remain silent. Mr. Obama, who Mr. Holder said misses the legal profession, got into a colloquy with the attorney general. How far, he asked, could Quarles be stretched? Mr. Holder felt that in terrorism cases, the court would allow indefinite questioning on a fairly broad range of subjects. Satisfied with the edgy new interpretation, Mr. Obama gave his blessing, Mr. Holder recalled. “Barack Obama believes in options: ‘Maintain my options,’ “ said Jeh C. Johnson, a campaign adviser and now general counsel of the Defense Department…
No emphasis on critics worrying about overstretching the Quarles case here. Just congratulatory language on a subtle interpretation well done. And "colloquy?" Really? Colloquy? No Yoo treatment for Mr. Holder. Good thing he isn’t a “junior aide” eh? And, in the portion of the article having to do with the President-led Tuesday afternoon Tea panel pouring over PowerPoints of terrorist bios and deciding who among them will be the lucky recipient of lethal strikes - nary a word about executive over-reach.. In fact, the very picture of extreme competence and judiciousness is presented.

Aides say Mr. Obama has several reasons for becoming so immersed in lethal counterterrorism operations. A student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy. “He realizes this isn’t science, this is judgments made off of, most of the time, human intelligence,” said Mr. Daley, the former chief of staff. “The president accepts as a fact that a certain amount of screw-ups are going to happen, and to him, that calls for a more judicious process.” But the control he exercises also appears to reflect Mr. Obama’s striking self-confidence: he believes, according to several people who have worked closely with him, that his own judgment should be brought to bear on strikes. Asked what surprised him most about Mr. Obama, Mr. Donilon, the national security adviser, answered immediately: “He’s a president who is quite comfortable with the use of force on behalf of the United States.”
None of this, of course, was not the case with Bush, but the editorial padification and the amount of emphasis put on the views of critics inside and outside of government was strikingly different back then. The 2005 Yoo article focuses on the critics. This one focuses on the supportive. Bush was brash, overconfident, even ‘intellectually incurious.’ Obama is strikingly self-confident, morally attuned and reads Aquinas. You can also see this inconsistency in presentation by examining how the people the President relies upon are presented. They are not portrayed nearly as nefariously as were Bush’s folks. Even when internal-to-the-administration critics are cited, unlike those portrayed in the Yoo piece, they have come around, having seen the subtle and conscientious nature of these fine folks in other branches; This is certainly so in the case of John Brennan a Bush era CIA hold-over.

Mr. Brennan, a son of Irish immigrants, is a grizzled 25-year veteran of the C.I.A. whose work as a top agency official during the brutal interrogations of the Bush administration made him a target of fierce criticism from the left. He had been forced, under fire, to withdraw his name from consideration to lead the C.I.A. under Mr. Obama, becoming counterterrorism chief instead. Harold H. Koh, for instance, as dean of Yale Law School was a leading liberal critic of the Bush administration’s counterterrorism policies. But since becoming the State Department’s top lawyer, Mr. Koh said, he has found in Mr. Brennan a principled ally. “If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude,” Mr. Koh said. “It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.”
Bush era EIT were “brutal” while shuffling Awlaki and his ilk off this mortal coil is not. OK. Hey, at least Koh came around to seeing John Brennan wasn’t some sort of monster. That’s progress of a sort. And getting back to the Tuesday terror nomination meetings: why was Axelrod in on the meetings, (mutely of course)?
David Axelrod, the president’s closest political adviser, began showing up at the “Terror Tuesday” meetings, his unspeaking presence a visible reminder of what everyone understood: a successful attack would overwhelm the president’s other aspirations and achievements.
‘Aspirations!’ ‘Achievements!’

One can only imagine how the word picture would be painted in the case of Bush/Darth Rove.

Enough on editorial padification. There is much else in this long but interesting piece. There are some things claimed in the article I just don’t get. Here’s the topper. It has to do with rendition, that is; turning over captured terror suspect to foreign powers for interrogation. For years the U.S. has done this knowing those foreign powers do torture, in truly brutal fashion. Such torture produces intelligence. Administrations of both parties have done this for decades. Only the naïve are unaware of this. Well, according the NYT piece here, we no longer have to worry about the moral questions surrounding the practice, thanks to finely (or is it ‘deftly?’) crafted executive orders:
The day before the executive orders were issued, the C.I.A.’s top lawyer, John A. Rizzo, had called the White House in a panic. The order prohibited the agency from operating detention facilities, closing once and for all the secret overseas “black sites” where interrogators had brutalized terrorist suspects. “The way this is written, you are going to take us out of the rendition business,” Mr. Rizzo told Gregory B. Craig, Mr. Obama’s White House counsel, referring to the much-criticized practice of grabbing a terrorist suspect abroad and delivering him to another country for interrogation or trial. The problem, Mr. Rizzo explained, was that the C.I.A. sometimes held such suspects for a day or two while awaiting a flight. The order appeared to outlaw that. Mr. Craig assured him that the new president had no intention of ending rendition — only its abuse, which could lead to American complicity in torture abroad. So a new definition of “detention facility” was inserted, excluding places used to hold people “on a short-term, transitory basis.” Problem solved — and no messy public explanation damped Mr. Obama’s celebration.

So here's the Sanka freeze-dried flow chart of how captured folks were/are treated..

Pre EXOrder
1. Captured.
2. Country notified
3. CIA holds guy while waiting, interrogates, using “brutal” methods
4. Country gives OK, guy sent to country who uses brutal methods.

Post EXOrder
1. ditto
2. ditto
3. Guy not held by CIA.
4. ditto

Color me confused.

Using either protocol, detainees are interrogated using brutal methods, and we knowingly give them over to those who do it. For those that have problems with rendition, how is the postexorder state of affairs any less morally questionable than the preexorder state of affairs?

  Clearly, the thought is that the CIA “brutal” methods will not be used now. We are not told exactly which methods are being referenced here. Are they the ‘coercive’ techniques Yoo was on about? If so, the worst the detainees would have endured would be the water-boarding techniques used during the Bush years on 3 AQ head honchos, most notably KSM.

So, the US would not directly inflict these techniques, but would send the detainees on to countries like our erstwhile friends the Paks, or our equally reliable partners the Saudis, who will use truly brutal techniques. Somehow that is more acceptable. It ‘solves the problem’ and doesn't rain on the President's parade.

You would think, after reporting this line of reasoning, the article would have gone on to quote Amnesty International, or some other civil liberties advocate, pointing out the obvious lacunae in argumentation, but oddly enough, it doesn’t.

Similarly, with the Awlaki affair. (Once again, I have no problem with the strike that took out this treasonous citizen, but what is striking about the article, as compared to the Yoo story, is how little emphasis is laid on the arguments of the civil liberties oriented critics when it comes to how the Fifth Amendment due process clause was interpreted/implemented by Holder and company in this case.

Oh, sure, we are given some justifiable complaints from Bush era folks as to how easily the present administration can retain its secrets, (as compared to the cacophony of complaints and demands from civil liberties advocates similar measures and legal opinions engendered during the Bush years), but the emphasis in the present story, again is upon the great man shouldering the burden:
..That record, and Mr. Awlaki’s calls for more attacks, presented Mr. Obama with an urgent question: Could he order the targeted killing of an American citizen, in a country with which the United States was not at war, in secret and without the benefit of a trial? The Justice Department’s Office of Legal Counsel prepared a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch. Mr. Obama gave his approval, and Mr. Awlaki was killed in September 2011, along with a fellow propagandist, Samir Khan, an American citizen who was not on the target list but was traveling with him. “This is an easy one,” Mr. Daley recalled him saying, though the president warned that in future cases, the evidence might well not be so clear. In the wake of Mr. Awlaki’s death, some administration officials, including the attorney general, argued that the Justice Department’s legal memo should be made public. In 2009, after all, Mr. Obama had released Bush administration legal opinions on interrogation over the vociferous objections of six former C.I.A. directors. This time, contemplating his own secrets, he chose to keep the Awlaki opinion secret. “Once it’s your pop stand, you look at things a little differently,” said Mr. Rizzo, the C.I.A.’s former general counsel. Mr. Hayden, the former C.I.A. director and now an adviser to Mr. Obama’s Republican challenger, Mr. Romney, commended the president’s aggressive counterterrorism record, which he said had a “Nixon to China” quality. But, he said, “secrecy has its costs” and Mr. Obama should open the strike strategy up to public scrutiny. “This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”
The article wraps up thusly:
Mr. Obama’s record has eroded the political perception that Democrats are weak on national security. No one would have imagined four years ago that his counterterrorism policies would come under far more fierce attack from the American Civil Liberties Union than from Mr. Romney. Aides say that Mr. Obama’s choices, though, are not surprising. The president’s reliance on strikes, said Mr. Leiter, the former head of the National Counterterrorism Center, “is far from a lurid fascination with covert action and special forces. It’s much more practical. He’s the president. He faces a post-Abdulmutallab situation, where he’s being told people might attack the United States tomorrow.” “You can pass a lot of laws,” Mr. Leiter said, “Those laws are not going to get Bin Laden dead.”
Wow. They mentioned the ACLU.

Mentioned, that is.

John Yoo has to be just a bit pissed.