On Wednesday, to the surprise of some spectators in the courtroom, a U.S. federal judge did the right thing: he followed the law.
Judge Lewis Kaplan had a clear choice before him: he could exclude the testimony of a government witness discovered via abusive CIA interrogation of Ahmed Khalfan Ghailani, or he could allow the government to introduce that testimony, in blatant violation of U.S. law. Ghailani, transferred from Guantanamo Bay to New York last year, is now on trial for allegedly assisting in the 1998 bombings of two U.S. embassies in East Africa.
In a U.S. federal court, testimony derived from a coercive interrogation is not admissible. A similar rule applies in the military commissions at Guantanamo Bay. Although judges there have more leeway, most military judges are equally principled and take the ban seriously. Torture-derived evidence is inadmissible for two reasons: to prevent U.S. authorities from engaging in torture, and because such evidence is inherently unreliable. International treaties similarly ban its use.
The government knew, of course, that this would be a problem, and it surely has plenty of other evidence against Ghailani or it wouldn't have transferred him to civilian court in the first place. After Judge Kaplan's ruling, Attorney General Eric Holder expressed his continued confidence in the case. Notably, four of his alleged co-conspirators in the bombings were tried and sentenced to life in prison back in 2001 - without the use of this particular government witness. Evidence introduced in that trial pointed to Ghailani as well.
Still, since Wednesday, commentators such as Liz Cheney and Jack Goldsmith have seized on Judge Kaplan's ruling to lament not the fact that Ghailani was thrown in a CIA black site for two years and likely tortured (the government refuses to address Ghailani's treatment in this trial but concedes he was "coerced"), but the fact that the judge has excluded the evidence that his interrogators squeezed out of him - or to claim the administration should never have given Ghailani a trial at all.
"If the American people needed any further proof that this Administration's policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today," announced Cheney after the ruling. Goldsmith, the Harvard Professor and former head of the Office of Legal Counsel Under President Bush, now writing on the new Lawfare blog, wonders "why the government is bothering to try Ghailani." Why not simply imprison him indefinitely?
Coming from Goldsmith, this is particularly disappointing. When he was at OLC, he had the courage to criticize his colleagues John Yoo and Jay Bybee for their twisted legal analysis that allowed them to institutionalize torture as U.S. policy. Now, rather than recalling that error as the source of the problem in Ghailani's trial today, he's criticizing the Obama administration for applying the rule of law at all.
Technically, Goldsmith may be right: the administration could just declare Ghailani an al Qaeda member and ongoing threat and hold him in military detention forever. That's the unfortunate consequence of the "war against al Qaeda, the Taliban and associated forces," which has no logical end. But as a matter of principle and policy, imprisoning people indefinitely without trial would be a disgrace, along the lines of what Goldsmith's colleagues at OLC sanctioned.
If there's anything the United States stands for -- or used to stand for -- it's that we don't throw people in prison without proof they've done something wrong.
Principle aside, it's just bad strategy. As General Petraeus has acknowledged, winning the war against al Qaeda and the Taliban is as much about winning over the local populations where they live as it is about U.S. military prowess. Throwing Muslims in prison for decades without charge or trial is hardly a good strategy. If, as national security experts tell us, al Qaeda's strategy is to present the U.S. war against terror as a war against Islam, indefinite detention of suspected Islamic insurgents without trial hands al Qaeda its most effective propaganda campaign on a silver platter.
Cheney and Goldsmith may be right that excluding a witness derived by torture will make the government's case against Ghailani more difficult. But in the end, a fair trial for a suspected terrorist in a respected federal court will do far more to defeat al Qaeda and its associates -- and to bolster the image of the United States in the world -- than will foregoing justice altogether.
Obama and Company are gearing up for an explanation tour of our goals in the Middle East... that we are there to keep Al Qaeda out, to stop the Taliban from returning to Afghanistan, and to WIN (whatever that means).
Trying to build a Democratic state in a Medieval mess is just not working out. Keeping the corrupt Karzai government afloat is a form of creeping suicide for our troops, which we have expanded in Afghanistan as we have cut them in Iraq.
The New York Times recently posted a disturbing video on Pakistan. The report addresses the topic of anti-Americanism in the country, specifically with regards to its westernized, well-educated musicians:
While Pakistani journalists, playwrights and even moderate Islamic clerics have boldly condemned the Taliban, the nation's pop music stars have yet to sing out against the group, which continues to claim responsibility for daily bombings.
This summary doesn't do justice to the report. One really needs to watch the video - to hear the musicians themselves speak - to get a sense of their anti-Americanism.
If Matthew Hoh could tell you one thing to help you understand the U.S.'s predicament in Afghanistan, he'd tell you:
The presence of our ground combat troops is not doing anything to defeat al-Qaida.
Think about that for a moment. We are paying roughly $1 million per troop, per year in Afghanistan. That's roughly twice the per-troop cost in Iraq. We've suffered well more than 800 deaths in Afghanistan. And yet here is the former top civilian official in Afghanistan's Zabul province, a former Marine who served in Anbar province in Iraq, telling us that the presence of our ground forces does nothing to defeat the organization that's supposedly the target of our operations in that country.
So, if we're not going about the business of defeating al-Qaida in Afghanistan, what are we doing?
We're involved in a civil war in Afghanistan. We're only taking one side in that civil war. And, our presence there is only encouraging the civil war to go on.
$100 billion more in wartime spending. That's what Congress is hellbent on approving despite valiant efforts from a growing number of Progressives led by FireDogLake's Jane Hamsher to derail this legislation's passage in the House. $100 billion, and for what? To bring more troops to Afghanistan without an exit strategy? To further US foreign policy that fails to address the humanitarian needs of the world's third poorest country? To escalate military operations that directly result in Afghan civilian casualties?
Recently, Anand Gopal, who has been covering the war in Afghanistan for The Christian Science Monitor, dispelled the myths about troop escalation at the America's Future Now Conference in Washington, DC. The reality, Gopal grimly assessed, is that more troops will mean more incidents of violence. More troops will also mean the need for more airstikes, which, as you can see in the sobering trailer for part four of Rethink Afghanistan, will mean more civilian casualties.
I just heard a local radio interview with John Mueller, Professor of Political Science at Ohio State, who made the clearest presentation I've heard to date about the baselessness of Obama's rationale for fighting in Afghanistan. There's no transcript, and even the sound file won't go up for a few hours at best, but fortunately Mueller has just published a piece at Foreign Affairs online making the same case in very similar terms. It begins:
How Dangerous Are the Taliban?
Why Afghanistan Is the Wrong War John Mueller
George W. Bush led the United States into war in Iraq on the grounds that Saddam Hussein might give his country's nonexistent weapons of mass destruction to terrorists. Now, Bush's successor is perpetuating the war in Afghanistan with comparably dubious arguments about the danger posed by the Taliban and al Qaeda.
President Barack Obama insists [1] that the U.S. mission in Afghanistan is about "making sure that al Qaeda cannot attack the U.S. homeland and U.S. interests and our allies" or "project violence against" American citizens. The reasoning is that if the Taliban win in Afghanistan, al Qaeda will once again be able to set up shop there to carry out its dirty work. As the president puts it [2], Afghanistan would "again be a base for terrorists who want to kill as many of our people as they possibly can." This argument is constantly repeated but rarely examined; given the costs and risks associated with the Obama administration's plans for the region, it is time such statements be given the scrutiny they deserve.
US airstrikes in Afghanistan like the one that killed over 100 civilians last week have reached all-time destructive highs. According to Air Forces Central, US warplanes dropped a record 438 bombs in Afghanistan during April. The number of dropped bombs has increased steadily over the past few months, and just yesterday, Gen. James Jones claimed the US will continue conducting airstrikes despite President Karzai's admonishment that these bombings are counterproductive, turning Afghan civilians against the United States. Yet as the situation in Afghanistan and Pakistan continues to deteriorate, Congress will decide this week whether to approve $94.2 billion in supplemental wartime spending.
Veterans of the wars in Iraq and Afghanistan like retired Corporal Rick Reyes are meeting with members of Congress early this week, urging them not to approve this massive supplemental wartime funding bill until more critical questions are answered about the war. We still don't know, for instance, how the Obama administration intends to prevent increases in US airstrikes and military presence from becoming recruiting tools for Taliban extremists or al Qaeda terrorists. We still don't know how the administration will be able to stop military escalation from further destabilizing a nuclear-armed Pakistan. Nor has the administration been forthright about benchmarks or an exit strategy, or whether funding more war will hamper US economic recovery.
In the United States, anyone who advocates economic justice is immediately accused of fomenting class warfare, and relegated to the same slag-heap of history as Lenin, Pol Pot, and Mao, and the New York Times is currently reinforcing this meme with a typical headline...
But the Times is still the Times, and only slightly buried in the story of divisive Taliban class-warriors there are also a few odd facts which help explain why "exploiting class rifts" has been an effective strategy in the Swat Valley, which the central government of Pakistan has recently conceded to the control of Islamic fundamentalists.
1,300,000 people live in the Swat Valley. 50 landlords own it.
Unlike India after independence in 1947, Pakistan maintained a narrow landed upper class that kept its vast holdings while its workers remained subservient, the officials and analysts said. Successive Pakistani governments have since failed to provide land reform and even the most basic forms of education and health care. Avenues to advancement for the vast majority of rural poor do not exist.
Today Pakistan "remains largely feudal," in the compact language of the Times, and although Islamic fundamentalism is usually pilloried in the Western press as a reactionary movement devoted to imposing medieval religion on "modern" societies, if the Taliban fulfill their promises to redistribute land in the Swat Valley, they can also claim to be the most progressive economic force in South Asia.
A recent article in the Wall Street Journal highlights the point around which peace and stability hinge in South Asia: Pakistan. The threat of the Taliban and Al Queda using Afghanistan as a refuge and launching points for attacks against the United States is governed primarily by what happens in Pakistan.
Holbrooke is known for his directness, and this quote from the Wall Street Journal article sums things up nicely "If Afghanistan had the best government on earth, a drug-free culture and no corruption it would still be unstable if the situation in Pakistan remained as today. That is an undisputable fact, and that is the core of the dilemma that the Western nations, the NATO alliance, face today."
Indeed.
Money, information, equipment - all these flow through Pakistan to Afghanistan. Without a secure Pakistan, Afghanistan cannot achieve peace and stability, no matter how many or how few troops NATO decides to deploy.
Pakistan faces many challenges related to security and stability, and the pledge by President Obama to increase aid to Pakistan is a good start. Another hopeful sign was the averting of destructive political conflict between President Zardari and Nawaz Sharif recently. Thankfully, Holbrooke is an experienced diplomatic operator who understands Pakistan's difficult situation. He fully understands Pakistan's "red-line" view of U.S. troops operating on Pakistani soil. Strikes by unmanned drones are hard enough to swallow, but boots-on-the-ground might spark a conflict that could not easily be contained.
It is March, again. Just as I have been for years, in this month I am haunted by the hate we, humans, propagate. March 19th is the sixth anniversary of "unnecessary wars". The phrase is not mine alone. Public servants, Ambassadors, and former Presidents have proclaimed as I have. Foreign Secretaries and domestic Diplomats deem the war was a mistake. Then there are the people.
(cross posted at montanamaven.com) In an article entitled "The Wrong Man for the Job", the former Iraq weapons inspector in Iraq, Scott Ritter, lays out his reasons for why Richard Holbrooke is a bad choice for U.S. special envoy for Afghanistan and Pakistan.
http://www.truthdig.com/report...
"There will be no peace without a negotiated settlement that includes the Taliban. To accomplish this, leadership is required which recognizes the Taliban as a force of moderation, and not extremism. Holbrooke does not have a record which indicates he would be willing to consider direct negotiations with the Taliban. He tends to seek military solutions to difficult ethnic-based problems, and he is likely to argue for the deployment of even more U.S. troops to that war-ravaged nation. That would be a historic mistake."
Well it turns out that just yesterday Hamid Karzai offered to meet with him personally and give him, or perhaps other members of the Taliban, a place in the government.
"If I find their address, there is no need for them to come to me, I'll personally go there and get in touch with them," Karzai said. "Esteemed Mullah, sir, and esteemed Hekmatyar, sir, why are you destroying the country?"
…
"If a group of Taliban or a number of Taliban come to me and say, 'President, we want a department in this or in that ministry or we want a position as deputy minister ... and we don't want to fight anymore ... If there will be a demand and a request like that to me, I will accept it because I want conflicts and fighting to end in Afghanistan," Karzai said.
"I wish there would be a demand as easy as this. I wish that they would want a position in the government. I will give them a position," he said.
I'd like to believe that Taliban weakness precipitated this offer, and that Karzai thought maybe he could just wrap the whole thing up once and for all with some generous surrender terms. Unfortunately it seems it's just the opposite.
Karzai's peace overture came as insurgency-related violence continued to climb. Thirty people, mostly army soldiers, were killed in a suicide bomb attack on a military bus Saturday in Kabul.
More than 270 have died in violence since Sept. 23, 180 of them militants, according to an Associated Press tally of figures from Afghan and Western officials.
In addition to the violence, the Taliban have also released a shadow constitution, which from the little information I was able to gather, is about what you would expect: no un-Islamic thoughts, sharia, full covering and limited education for women.
Taliban spokesman, Qari Yousef Ahmadi, repeated a position he had announced in September, saying there would be no negotiations until U.S. and NATO troops had withdrawn from Afghanistan.
"The Taliban will never negotiate with the Afghan government in the presence of foreign forces," Ahmadi said. "Even if Karzai gives up his presidency, it's not possible that Mullah Omar would agree to negotiations. The foreign forces don't have the authority to talk about Afghanistan."
Somehow, I have a really bad feeling about all this.
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