Graham Bill Plays Right Into al Qaeda's Hands

By Daphne Eviatar, Senior Associate, Law and Security.

Addressing the current threat from al Qaeda at a recent forum in New York, the Deputy Special Assistant to President Bush and former Deputy National Security Advisor for Combating Terrorism warned that the United States' military reaction to the threat of terrorism is backfiring.

"We're in desperate need of disciplining our response," said Juan Zarate, speaking on a panel last week at New York University Law School's Center for Law and Security. "We have to have a sense of resilience. Every attack can't create a maximal response, because it feeds the enemy."

Too bad Senator Lindsey Graham of South Carolina wasn't there to hear him.

In Washington a week later, Graham was telling an audience at the American Enterprise Institute just the opposite. The U.S. needs to step up its military response to terrorism at home and abroad, he said. "The enemy has declared war on the United States. The question is, are we going to declare war on them?"

Graham lamented that the U.S. has given up its use of "enhanced interrogation techniques." And he vowed to introduce legislation that would ensure that suspected terrorists arrested in the United States don't get the same rights to defend themselves as do other suspects in the criminal justice system - such as mass murderers and rapists.

"This is not crime we are fighting," he said on the Senate floor later that day. "We are fighting a war."

In Graham's view, treating al Qaeda and Taliban sympathizers as criminals instead of warriors makes us weaker.

On its face, Graham's logic has a certain appeal. But national security experts increasingly warn that militarizing all aspects of the "war on terror" actually plays into the hands of al Qaeda and hurts, rather than helps, U.S. counter-terrorism efforts.

Senator Graham is now pushing legislation in Congress that would significantly expand the scope of the U.S. "war on terror." Among other things, he would require the U.S. to treat a suspected al Qaeda affiliate, whether arrested within the United States or abroad, as a war criminal who can be interrogated without Miranda rights and detained indefinitely without trial. A U.S. court later reviewing the detention could presume the imprisonment was lawful based on certain minimal evidence -- such as attendance at a Taliban or al Qaeda-affiliated training camp, even if decades earlier.

That sort of stark reaction to sporadic terror attacks is exactly what al Qaeda wants. According to Zarate, now a senior advisor to the Center for Strategic and International Studies, al Qaeda is intentionally goading the U.S. into overreacting to the terrorist threat; it can then recruit new members by characterizing the United States as fighting a world-wide war against Islam.

Al Qaeda wins even if its terrorist attacks fail, so long as it sees the U.S. reacting with alarm - allowing itself to be "terrorized."

Thus the failed Christmas Day bombing on a plane to Detroit last year, and the botched attempt to blow up a car in Times Square last Spring, were victories for al Qaeda because they sparked hysteria in the U.S., says Zarate -- mostly in the form of new bills in Congress, from Senator Graham and others, to deny suspected terrorists basic rights.

Another al Qaeda tactic is to entice the U.S. into over-committing itself militarily around the world. "They're baiting the U.S. into a regional quagmire," said Zarate, referring to the increasing drone warfare in Pakistan, Yemen and Somalia.

Similarly, al Qaeda wants to "economically bleed" the United States by taunting it into an endless global war, he said. In al Qaeda's view, that's the best way to bring down a superpower -- particularly during a recession.

For all of these reasons, it's important not to over-react to the terrorist threat. Making what should be a law enforcement matter into a military one, as Senator Graham and some other lawmakers are advocating, does just that. It's worth noting that the U.N. Security Council, in its reaction to the September 11 attacks, obliged member states to "criminalize" terrorist attacks - not to declare war on terrorists.

If the sort of tactics Graham is proposing were actually necessary to fighting terrorism, they might be worth the risk of aggrandizing al Qaeda. But they're not. There's no evidence that reading defendants their Miranda rights, for example, keeps them from cooperating with law enforcement and providing valuable information; on the contrary, studies show they're more likely to cooperate if told they have rights. Locking the wrong people up indefinitely hasn't helped either: although the Bush administration imprisoned more than 700 people at Guantanamo Bay, the terrorist threat has only expanded around the world. Military trials for terrorists have been a dismal failure as well: military commissions have convicted only four terrorists so far, while civilian federal courts have convicted more than 400 since September 11.

Lawmakers should keep this in mind when considering legislation that would militarize our response to terrorism and sideline the role of law enforcement. Other proposed bills would forbid the transfer of Guantanamo detainees to the United States for trial or even to their home countries and strip terrorist suspects of their U.S. citizenship. These are just the sort of over-reactions that President Bush's terrorism advisor now warns against.

Unfortunately, such over-reactions also feed growing anti-Muslim sentiment within the U.S. "The grand success for bin Laden would be to see emerging in the U.S. a division between Muslim communities and the rest of the United States," observed Zarate last week.

As Fareed Zakaria wrote recently in the Washington Post, "Bin Laden knew he could never weaken America directly, even if he blew up a dozen buildings or ships. But he could provoke an overreaction by which America weakened itself."

Congress should be careful not to give him that satisfaction.

Graham Bill Plays Right Into al Qaeda's Hands

By Daphne Eviatar, Senior Associate, Law and Security.

Addressing the current threat from al Qaeda at a recent forum in New York, the Deputy Special Assistant to President Bush and former Deputy National Security Advisor for Combating Terrorism warned that the United States' military reaction to the threat of terrorism is backfiring.

"We're in desperate need of disciplining our response," said Juan Zarate, speaking on a panel last week at New York University Law School's Center for Law and Security. "We have to have a sense of resilience. Every attack can't create a maximal response, because it feeds the enemy."

Too bad Senator Lindsey Graham of South Carolina wasn't there to hear him.

In Washington a week later, Graham was telling an audience at the American Enterprise Institute just the opposite. The U.S. needs to step up its military response to terrorism at home and abroad, he said. "The enemy has declared war on the United States. The question is, are we going to declare war on them?"

Graham lamented that the U.S. has given up its use of "enhanced interrogation techniques." And he vowed to introduce legislation that would ensure that suspected terrorists arrested in the United States don't get the same rights to defend themselves as do other suspects in the criminal justice system - such as mass murderers and rapists.

"This is not crime we are fighting," he said on the Senate floor later that day. "We are fighting a war."

In Graham's view, treating al Qaeda and Taliban sympathizers as criminals instead of warriors makes us weaker.

On its face, Graham's logic has a certain appeal. But national security experts increasingly warn that militarizing all aspects of the "war on terror" actually plays into the hands of al Qaeda and hurts, rather than helps, U.S. counter-terrorism efforts.

Senator Graham is now pushing legislation in Congress that would significantly expand the scope of the U.S. "war on terror." Among other things, he would require the U.S. to treat a suspected al Qaeda affiliate, whether arrested within the United States or abroad, as a war criminal who can be interrogated without Miranda rights and detained indefinitely without trial. A U.S. court later reviewing the detention could presume the imprisonment was lawful based on certain minimal evidence -- such as attendance at a Taliban or al Qaeda-affiliated training camp, even if decades earlier.

That sort of stark reaction to sporadic terror attacks is exactly what al Qaeda wants. According to Zarate, now a senior advisor to the Center for Strategic and International Studies, al Qaeda is intentionally goading the U.S. into overreacting to the terrorist threat; it can then recruit new members by characterizing the United States as fighting a world-wide war against Islam.

Al Qaeda wins even if its terrorist attacks fail, so long as it sees the U.S. reacting with alarm - allowing itself to be "terrorized."

Thus the failed Christmas Day bombing on a plane to Detroit last year, and the botched attempt to blow up a car in Times Square last Spring, were victories for al Qaeda because they sparked hysteria in the U.S., says Zarate -- mostly in the form of new bills in Congress, from Senator Graham and others, to deny suspected terrorists basic rights.

Another al Qaeda tactic is to entice the U.S. into over-committing itself militarily around the world. "They're baiting the U.S. into a regional quagmire," said Zarate, referring to the increasing drone warfare in Pakistan, Yemen and Somalia.

Similarly, al Qaeda wants to "economically bleed" the United States by taunting it into an endless global war, he said. In al Qaeda's view, that's the best way to bring down a superpower -- particularly during a recession.

For all of these reasons, it's important not to over-react to the terrorist threat. Making what should be a law enforcement matter into a military one, as Senator Graham and some other lawmakers are advocating, does just that. It's worth noting that the U.N. Security Council, in its reaction to the September 11 attacks, obliged member states to "criminalize" terrorist attacks - not to declare war on terrorists.

If the sort of tactics Graham is proposing were actually necessary to fighting terrorism, they might be worth the risk of aggrandizing al Qaeda. But they're not. There's no evidence that reading defendants their Miranda rights, for example, keeps them from cooperating with law enforcement and providing valuable information; on the contrary, studies show they're more likely to cooperate if told they have rights. Locking the wrong people up indefinitely hasn't helped either: although the Bush administration imprisoned more than 700 people at Guantanamo Bay, the terrorist threat has only expanded around the world. Military trials for terrorists have been a dismal failure as well: military commissions have convicted only four terrorists so far, while civilian federal courts have convicted more than 400 since September 11.

Lawmakers should keep this in mind when considering legislation that would militarize our response to terrorism and sideline the role of law enforcement. Other proposed bills would forbid the transfer of Guantanamo detainees to the United States for trial or even to their home countries and strip terrorist suspects of their U.S. citizenship. These are just the sort of over-reactions that President Bush's terrorism advisor now warns against.

Unfortunately, such over-reactions also feed growing anti-Muslim sentiment within the U.S. "The grand success for bin Laden would be to see emerging in the U.S. a division between Muslim communities and the rest of the United States," observed Zarate last week.

As Fareed Zakaria wrote recently in the Washington Post, "Bin Laden knew he could never weaken America directly, even if he blew up a dozen buildings or ships. But he could provoke an overreaction by which America weakened itself."

Congress should be careful not to give him that satisfaction.

Republicans: Judicial Activists in Immigration Reform Clothes

So the Party of No has suddenly become the party of simpering “Judicial Activists”. Those paragons of the rule of law – represented by their Sharia-like interpretation of the Constitution – Sen. Lindsey Graham (R-Nelly Bottom) and Jon Kyle (R-Independent  Duchy  of Arizona), are yapping about repealing the 14th Amendment (the one giving citizenship to babies born in this country).

There’s no legitimate argument that numerous administrations and Congresses from both parties haven’t ignored immigration reform. Performance on the issue has been on par with the handling of Katrina and is well past due. But rewriting the Constitution to do something you’re too weak-willed to do honestly is a tad disingenuous. You can’t just constantly carp about a strict interpretation of the Constitution 250-years removed from its writing and then just argue to rewrite it if something is giving you political heartburn.

Many people don’t think women are capable of anything, including voting. Why not just repeal the Franchise? Heck, “We’re at war dammit! Let’s repeal the First Amendment because the teabagger’s public statements are offensive.” And that whole habeas corpus thing is a real patriotism buzz kill. Let’s get rid of that too. This is not a case of racism, it’s a case of “Stupidism”.

It’s time for the immigratirati to take a dip in the Rio Grande and start dealing with the problem rationally instead of like Lou Dobbs on a Red Bull bender. It’s this type of squeaky wheelism that built the Fence to Nowhere – America’s very own Maginot Line. This thinking led to an Arizona law that essentially requires police to do what they were already able to do voluntarily and does nothing to solve the problem.

The people of this country want solutions to problems, not a bunch of bickering over who is an opportunistic crapweasel looking for votes or who is a racist. There are a number of actions that could be taken with simple discussions by honest negotiators. Others would take a little negotiation. And, there are still others that will only be done by inflicting pain. But have no question. We do have a place to start.

So Gov. Tea Brewer get on with something useful. Jon and Lindsey, stop trying to throw the (immigrant) baby out with the bathwater. And Messiah, get off your duff, corral those cats that pass for a political party, and fix the problem.

We the people thank you.

Cross posted at The Omnipotent Poobah Speaks!

 

 

 

Judges to Congress: Don’t Legislate Indefinite Detention

 

For months now, certain commentators and legislators have been arguing that Congress needs to pass a new law authorizing the indefinite detention without charge or trial of suspected terrorists and their supporters.

On its face, that would seem to violate some basic tenets of the U.S. Constitution. But the U.S. government is already detaining hundreds of suspects captured abroad at Guantanamo Bay and elsewhere. The question is whether Congress should expand that authority and define it in more detail.

Writers such as Benjamin Wittes of the Brookings Institution and lawmakers such as Senator Lindsey Graham of South Carolina argue that even though hundreds of people have been detained over the last eight years at Guantanamo Bay, the law that justifies their detention or mandates their release isn’t clear, and Congress needs to step in and make new rules.

In fact, as a new report issued today by 16 former federal judges makes clear, that’s nonsense. The people in the best position to decide when military detention is legal are already doing just that. The new report, published by Human Rights First and theConstitution Project, explains exactly how that process is working – and demonstrates that it’s actually working very well. Responding to a series of habeas corpus petitions, where Guantanamo detainees have asked the federal court to review the legality of their detentions, federal district court judges in Washington, D.C. have already issued written opinions concerning 50 different detainees that set out the legal standard for indefinite wartime detention, and which cases do and do not meet it.

The claim by Wittes and Graham that judges are somehow overstepping their bounds and usurping the role of Congress reflects a fundamental misunderstanding of how the federal courts and judges work. In fact, the courts are doing just what they’re supposed to do: interpret the law.

The reason judges are so well-situated to explain the contours of U.S. detention authority is because, according to judicial rulings, the right to detain arises out of existing laws, including the Authorization for Use of Military Force against Terrorists, or AUMF, passed by Congress in 2001; the traditional law of war; and the U.S. Constitution.

Traditionally, a government at war can detain fighting members of the enemy’s forces, under humane conditions, until the war is over. Although that authority is less clear when the government is fighting a loose coalition of insurgent forces around the world rather than another country, the Supreme Court has said that at least in some circumstances, pursuant to the AUMF, the United States can detain enemy fighters seized on the battlefield.

It’s the Supreme Court’s rulings on the subject, combined with the law of war and the mandates of the U.S. Constitution, that highly experienced federal judges have been applying to the habeas corpus cases that have come before them. Applying those rulings, they’ve developed a clear and consistent body of law that explains what kind of evidence the government needs to have amassed against a suspected insurgent to justify his military detention.

Under the D.C. District Court’s rulings, for example, Fouad Al Rabiah, a 43-year-old, 240-pound, Kuwaiti Airways executive with a long history of volunteering for Islamic charities who’d been discharged from compulsory military service in Kuwait due to a knee injury, and who suffered from high blood pressure and chronic back pain, did not meet the requirement of being “part of” or having “substantially supported” al Qaeda, the Taliban or associated forces. Although seized while attempting to leave Afghanistan in 2001, by the time of Al Rabiah’s hearing, even the government had decided the witnesses who claimed he’d helped al Qaeda weren’t credible. The government’s own interrogators didn’t believe his “confessions,” which the court determined had been coerced and were “entirely incredible.”

On the other hand, Fawzi Al Odah, also Kuwaiti, did meet the law’s detention standards. The same judge found that he’d attended a Taliban training camp, learned to use an AK-47, travelled with other armed fighters on a route common to jihadists, and took directions from Taliban leaders – all making it more likely than not that he was a member of Taliban fighting forces.

Still, despite the courts’ careful analysis in these cases, Congress could step in and write its own new law on indefinite detention. But how can any one statute possibly address all the vastly different factual scenarios, many spanning several countries and decades, that constitute the government’s claims that any particular individual is detainable? What’s more, any new law will still have to meet the requirements of the U.S. Constitution, and the Supreme Court gets the ultimate say on that. Any new statute passed by Congress, then, would likely be challenged as soon as it’s applied, causing more confusion about what the law really is until the U.S. Supreme Court weighs in on that new statute several years later.

The federal judges of the D.C. District Court and Court of Appeals are already way ahead of that game. In addition to the trial court opinions, the appellate court recently issued its own opinion setting out the law of detention and the government’s constitutional authority. That decision may be appealed to the Supreme Court, whose opinion would set out the binding standard that every judge and future U.S. administration will have to follow.

The upshot of all this is that if Congress legislates some new detention standard now, it will actually take a lot longer to get a clearly-defined and binding law that guides the government than it would if Congress just let the courts continue to play the role they’re supposed to: deciding the legality of government detention.

Wittes, Graham and others may secretly be hoping that Congress will legislate in this area anyway and try to expand the government’s indefinite detention authority beyond Guantanamo Bay to reach even suspects arrested on U.S. soil. But that would create a whole new constitutional firestorm, resulting in exactly the opposite of what they say they’re after: a clear and reliable statement of the law.

 

Weekly Mulch: Why the Senate Climate Bill is Doomed

by Sarah Laskow, Media Consortium blogger

Sen. John Kerry (D-MA) and Sen. Joe Lieberman (I-CT), though down one man, finally released their stab at climate legislation this week. One of the most crucial sections in the bill covers off-shore oil drilling, an issue that was supposed to help solve the tricky math of reaching 60 votes. But since the Deepwater Horizon rig sank in the Gulf of Mexico, drilling has become a wedge issue.

Just a few weeks ago, off-shore drilling could have been a point of compromise around which Senators could rally votes to pass the climate bill; now the bill had to strike a new balance to mollify both potential allies who oppose drilling, like Sen. Robert Menendez (D-NJ), and those who support drilling, like Sen. Mary Landrieu (D-LA). The draft that Sen. Kerry and Sen. Lieberman released this week allows for expanded drilling but gives states veto power over new projects.

Sen. Lindsey Graham (R-SC), who worked on the bill, said that he had not seen the changes his two colleagues had made since he dropped out of the drafting process—but he looked forward to reviewing their work. Although Sen. Kerry says he thinks the bill can pass,  without support from Sen. Graham or another Republican, chances are slim.

Next steps

Now that the two Senators have released the bill, the only work that remains is to pass it.

“I think climate change legislation is dead,” writes Kevin Drum at Mother Jones. His explanation:

“There’s not enough time for a bill to go through the committee process, get passed by the Senate, sent to conference, amended, and then passed by the full Congress before the midterms, and after the midterms Democrats will probably be reduced to 53 or 54 members in the Senate.”

Not everyone agrees that the bill’s chance are so dire, though.

“I think the chances are roughly as good as they’ve ever been in the Senate: low but non-trivial,” says Grist’s David Roberts.

Kerry’s argument

But should green-minded politicos root for the bill’s passage at all? Sen. Kerry and Sen. Lieberman worked closely with energy companies while drafting the bill, and the resulting legislation balances the need to reduce carbon emissions with the interests of prime polluters. The bill includes incentives for old energy industries like coal and natural gas, for instance, and exempts farmers from carbon caps.

On Wednesday, Sen. Kerry made his case to left-leaning environmentalists. “A comprehensive climate bill written purely for you and me — true believers — can’t pass the Senate no matter how hard or passionate I fight on it,” he wrote for Grist. The bill they have, he wrote, can pass, and that victory outweighs the compromises in the legislation.

Responses from the left

On Democracy Now!, Phil Radford, the executive director of GreenPeace USA, said that most environmental groups have given the bill little more than a “tepid endorsement.” Radford squared off on the show with Joseph Romm of the Center for American Progress, who supports the bill.

“This will be the first bill ever passed by the Senate, if it were to pass, that would put us on a path to get off of fossil fuels,” Romm said.

The two men were also divided over issues like the impact the climate bill could have on international negotiations.

They agreed, though, there is room for improvement; the only question is whether the politics of climate change will allow for the passage of a stronger bill any times soon. As Kevin Drum wrote, “If you think this year’s bills are watered down, just wait until you see what a Congress with a hair-thin Democratic majority produces.”

Coal and natural gas

Tripping up environmentalists now, though, are the hand-outs to dirty energy industries. The coal and natural gas industry could both benefit from the provisions of the Senate bill, for instance.

On GritTV, Jeff Biggers, a writer and educator who covers the coal industry, explained his frustration:

“The climate bill is a nice first step and a very well meaning effort for someone like Sen. Kerry who’s been working on this issue for 20 years. But at the same time, because of the massive big coal lobby that has poured millions of dollars into lobbying congress on this climate legislation…there are all sorts of little panders and loopholes and exemptions.”

“What we see in this bill is that Sen. Kerry and Lieberman want to ensure coal’s future,” he said.

The booming natural gas industry also had a hand in shaping the bill and benefited from it. Environmental groups like the Sierra Club favor natural gas as an energy source over coal, and as Kari Lydersen reports in Working In These Times, the industry is driving job growth at a time when the economy needs a boost.

But as Alex Halperin reported last month for The American Prospect, in the places where drilling is occurring, like Ithaca, NY, activists are arguing that the environmental risks could outweigh those economic benefits.

Drill or be drilled

That devil’s bargain—risking natural resources for jobs in the energy industry—went the wrong way for the Gulf Coast, and states like Louisiana, Alabama, and Florida are paying the price even before the oil hits shore.

As I report in AlterNet, the Gulf’s economy could lose billions of dollars and is suffering already from the misconception that its beaches are tarred with oil. With this catastrophe still fresh in voters’ minds, the Senate climate bill proposes pushing new drilling initiatives 75 miles offshore and giving affected states veto power over these projects.

Depending on how long the memory of the Deepwater Horizon spill lasts, politicians could have a good reason to veto drilling. Public News Service reports that 55% of Floridians now oppose off-shore drilling, “almost a complete reversal from one year ago.”

Blame game

Certainly no one is stepping up to take responsibility for the explosion off the coast of Louisiana, as the Washington Independent reports. At a hearing this week, officials from British Petroleum, which was operating the well, Transocean, which owns it, and Halliburton, which was doing contract work that may have caused the problem, all denied wrongdoing and pressed the blame on each other.

It’s starting to look Halliburton played a key part. “The focus is increasingly shifting to the role of Halliburton, which poured the cement for the rig, as well as for another operation that spilled oil off the coast of Australia last August,” writes Kate Sheppard at Mother Jones. The company apparently did not place a cement plug that would have kept gas in the well before emptying it of the mud that was holding in the flammable gas.

Anyone living in a state that could have new drilling off their coast should keep this catastrophe in mind if their politicians are given the option of vetoing new projects.

This post features links to the best independent, progressive reporting about the environment by members of The Media Consortium. It is free to reprint. Visit the Mulch for a complete list of articles on environmental issues, or follow us on Twitter. And for the best progressive reporting on critical economy, health care and immigration issues, check out The Audit, The Pulse, and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.

 

 

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