The disappearing classified order

Friday night, the New York Times published a major story online under the then-all-caps headline, “IN SECRET, OBAMA EXTENDS U.S. ROLE IN AFGHAN COMBAT.” Upon publication, at 9:33pm EST, Mark Mazzetti’s and Eric Schmitt’s article began,

President Obama signed a secret order in recent weeks authorizing a more expansive mission for the military in Afghanistan in 2015 than originally planned, a move that ensures American troops will have a direct role in fighting in the war-ravaged country for at least another year.

Mr. Obama’s order allows American forces to carry out missions against the Taliban and other militant groups threatening American troops or the Afghan government, a broader mission than the president described to the public earlier this year, according to several administration, military and congressional officials with knowledge of the decision. The new authorization also allows American jets, bombers and drones to support Afghan troops on combat missions.

It’s especially relevant that the order was signed in secret, because the decision directly contradicts Obama’s 2012 campaign rhetoric about withdrawing U.S. troops from Afghanistan by the end of 2014 — in fact, Obama specifically made it a campaign issue that he promised to withdraw troops by this year’s end, whereas Mitt Romney had no timetable.

On Twitter, journalist Gregory Johnson noted another, implicit reason for the story’s importance: “Unmentioned, but I assume this also allows Guantanamo to stay open another year,” with Harvard Law Professor Jack Goldsmith explaining, “It precludes Taliban detainees from arguing ‘end of hostilities’ as a basis for release for another year.”

The next morning, however, I noticed the print edition carried the much different headline, “IN A SHIFT, OBAMA EXTENDS U.S. ROLE IN AFGHAN COMBAT.” Continue reading “The disappearing classified order”

The disappearing classified order

Obama knew he was destabilizing Syria, and he did it anyway

In the Intercept, Dan Froomkin writes that ‘Obama Knew Arming Rebels [in Syria] Was Useless, But Did it Anyway.’ His argument is based on a “New York Times story about how President Obama asked the CIA a while back whether arming rebel forces – pretty much the agency’s signature strategy — had ever worked in the past.” It’s important to note that “worked” here, though never spelled out, essentially means “toppled the side that wasn’t U.S.-compliant in favor of one that’d bow to us in return for arming opposition forces.”

Froomkin largely chalks up Obama’s decision to “political pressure,” linking to this Fox News post, ‘Republicans urge Obama to enforce Syria ‘red line,’ oppose deploying troops.’ Even when the Democratic president arms the rebels, it’s the Republicans’ fault. By perpetuating the liberal trope that Democrats are peaceful in principle but spineless in the face of gridlock, Froomkin lets them off the hook and plays into their own political finger-pointing. Democrats couldn’t have justified it better themselves. Continue reading “Obama knew he was destabilizing Syria, and he did it anyway”

Obama knew he was destabilizing Syria, and he did it anyway

Detention and Deception Revisited

Exactly four months ago, the United States marked the 10-year anniversary of the September 11th attacks – a day mixed with somber reflection, raging jingoism, and politicized commentary. Today we mark the 10-year anniversary of the opening of the Guantánamo Bay detention facility – a day of national shame. This is a prison rife with torture, trumped up charges, and hidden abuse. Guantánamo symbolizes the worst of America’s practices in the War on Terror: secretly caging alleged enemies miles away from the rule of law, a terrorizing warning to those who would question our foreign policy. 

The ACLU has produced this excellent infographic (at right, click to enlarge) with some vital facts about the still-open prison. I also want to direct you to this New York Times Op-Ed, by Lakhdar Boumediene, “My Guantánamo Nightmare,” and Marcy Wheeler’s “This Gitmo Anniversary Needs to Be About Bagram, Too.”

Exactly eight months ago, I wrote a report on WikiLeaks’ ‘Guantánamo Files,’ what they revealed about the prison, and what the prison revealed about the United States. The whole paper, “Detention & Deception: The Guantánamo Files & American Human Rights Hypocrisy,” is here, but it’s rather long, so I’m re-printing some excerpts below:

On Obama’s Broken Promise

“The first step to reclaiming America’s standing in the world has to be closing” the Guantánamo Bay detention facility, President Obama declared in a 2008 campaign pamphlet, before promising to do just that. International leaders and an official United Nations report have called on the United States to close the prison, citing human rights abuses. Scores of GTMO detainees have been tortured, few made it to military tribunals, and almost none were awarded a civilian trial, let alone compensation after their eventual release.

Since its foundation in 2002, the Cuban-based detention camp has been an emblem of the War on Terror’s worst erosions of civil liberties, an icon of America’s moral degradation, and a crucial talking point for critics of American foreign policy around the world. So the international community generally lauded Obama’s election, and his promise to close the site, excited for a new era of justice and moral awakening. Three years later, however, the notorious prison is still open, still caging nearly 200 people who may never see a trial, and still a symbol of America’s disastrous disregard for human rights under the endless, sprawling War on Terror.

On Prisoners and Justification

The U.S. military has caged Arabs of all ages. The youngest is Naqib Ullah, a 14-year-old boy with Tuberculosis, who was kidnapped, raped, and held in a camp by 11 Afghani men. Then the U.S. raided the camp and detained Naqib for eight months, interrogating him about his captors but never about any potential risk he might pose. The oldest is 89-year-old Mohammad Sadiq, who was suffering dementia, major depression, and osteoarthritis while captive for nearly a year.

Guantánamo has held several others with mental disabilities, such as Abdul Houari, who has psychosis, slowed mobile functionality, and a blind right eye, and yet was deemed with the explicit coercion of the Criminal Investigative Task Force to pose a “medium risk” threat. Or Mishal Alhabiri a suicidal, mentally impaired detainee of “low intelligence value” who posed a “low risk,” but who was never given a trial despite his detention.

The reasoning provided for detaining many prisoners is illogical, contradictory, or merely that of a realist military tending to national interests instead of basic rights. For example, Sheikh Salman Al Khalifa, a member of the Bahraini royal family, was detained specifically to provide information on a select few “personalities” and alleged “Taliban safehouses,” but was then deemed himself a potential “threat to the US, its interests and allies.”

For others, the U.S. didn’t bother with a pretense of a real, potential threat, and instead decided that extremely tangential information justified indefinite imprisonment without trial. Sami al-Hajj, an al-Jazeera cameraman, was locked up for six years, solely so the U.S. could interrogate him about the news network. According to human-rights lawyer Clive Smith, the U.S. was “only interested in turning him into an informant against al-Jazeera.” Al-Hajj went on a hunger strike in protest of his treatment, claiming he was being denied vital medication, and demanding better conditions prison-wide. Hundreds more have fasted in protest similarly.

Equally baffling is the fact that the U.S. considered the basic, cheap, and globally available Casio F91W wristwatch to be a ‘sign of al-Qaeda,’ and frequently listed it as a “suspicious item,” purportedly because an al-Qaeda training camp purportedly distributed that model to several students. At least 50 GTMO detainees wear the watch, though no direct link between that model and a terror threat has been made.

Kafka would marvel at what some of the documents reveal: merely having information on other detainees, i.e. cooperating and informing on who could be threatening, was officially considered a suspicious sign that warranted further detention. There is no way out in a system with rules like that.

On Alleged Efforts to Close GTMO

Obama Administration officials complain that the GTMO debate “became suffused with fear — fear that transferring detainees to American soil would create a genuine security threat, fear that closing Guantánamo would be electoral suicide.” Some congressional Democrats, they said, even pleaded with the Administration to back off of the issue. Congress, in turn, put the blame back in Obama’s hands – an aide said “vulnerable senators weren’t going out on a limb…when the White House, with the most to lose, wasn’t even twisting arms.”

Others asked to speak on the matter claimed even more fundamental obstacles, as a Republican staffer said those seeking to close GTMO “could never figure out…who was in charge” of the effort, while another White House counsel Gregory Craig said “no one was coordinating.” More officials observed repeated backtracking from both Congress and the Administration.

These, to be sure, do not sound like people genuinely interested in closing the facility. How could the lawmakers of the world’s greatest superpower appear so feeble and uninterested to solve such a glaring human rights debacle? The idea of “electoral suicide” likely points in the right direction. More and more often, presidents and congressmen choose to fight not for what they feel is righteous and in their citizens’ interest, but instead for what will get them reelected. Human rights tend to lose these battles frequently in America, as the lack of a real stand to close Guantánamo demonstrates all too clearly.

On the U.S.’s Record on Human Rights

Despite the well-documented abuses of the Guantánamo Bay prison, not to mention hundreds more human rights problems, the U.S. frequently holds itself out as both an arbiter of human-rights morality and an exemplary model for lawful practices, as part of a larger theme of American Exceptionalism. The State Department annually publishes a thorough report on human rights abuses on every single country – except the U.S. This year, the Obama Administration made a special point to criticize China on that country’s various human rights deficiencies. Assistant Secretary of State Michael Posner declared the U.S. has “seen a serious backsliding on human rights” in China, specifically disparaging China’s detention practices, saying, “We have been and are very concerned over recent months by reports that dozens of people, including public interest lawyers, writers, artists like Ai Weiwei, and others, have been arrested, detained, or in some cases, disappeared, with no regard to legal measures.” While some would argue there is a difference between imprisoning ones own citizens and detaining prisoners of war abroad, there is an obvious irony in Posner’s remarks.

On Torture and Hypocrisy

Throughout the Guantánamo Files, though, the word torture is never used. We know that some detainees were waterboarded and that too many others were subjected to physical and psychological torture, yet officials who wrote the files repeatedly referred to “interrogation” and “questioning.” Publicly, as well, U.S. diplomats are careful to discuss “enhanced interrogation techniques,” or other deceptive phrases, when referring to their own country’s tactics, no matter how often they accuse another nation of torture.

This type of hypocrisy emphasizes the U.S. as a ‘realist’ country, or one that bases nearly all decisions on its own national interests, and one whose interests routinely trump any human rights concerns. Unfortunately, American policies at the Guantánamo Bay prison camp emblematize this dynamic all too well. There is insufficient evidence to prosecute most of the remaining prisoners, and it’s too difficult to transport them safely and wisely elsewhere, so the site remains open. After years of intense international and domestic criticism, officials have cleaned up GTMO practices, no longer torturing detainees and abiding by somewhat higher standards. But this only came after heavy pressure, and when it became the United States’ interest to improve their international standing on human rights. Yet nearly 200 still sit caged without charge or trial, potentially for the rest of their lives, and criticism has largely died down, at least before WikiLeaks released the Guantánamo Files. Without significant pressure, it’s simply not in America’s national interest to close the prison down. For the United States, human rights only seem to matter when respecting them suits other interests, and when doing so fits the Exceptional narrative that we have written.

Detention and Deception Revisited

The Scale of American Overclassification

[This piece was first posted here, for the Bradley Manning Support Network.]

In his closing statement two weeks ago, PFC Bradley Manning’s defense attorney David Coombs said of the information released, that it is all out in the public, and yet it hasn’t caused any harm. “If anything, it’s helped,” he said. Coombs called the government’s warning about the impact of the releases a “Chicken Little response” — a response the media has picked up on. He said officials were saying the “sky is falling, the sky is falling” over and over. But, he said, “The sky has not fallen, is not falling, and will not fall.”

He alludes to an inconvenient truth that is not well hidden, but also not well understood by many reporters seeking to summarize the WikiLeaks’ story. The sky is not falling because most of the documents WikiLeaks released should not have been classified in the first place. The U.S.’s classification system is poorly regulated, to say the least, as hundreds of thousands of documents are unnecessarily classified every year.

President Obama’s Executive Order 13526 clearly states:

In no case shall information be classified… in order to: conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency… or prevent or delay the release of information that does not require protection in the interest of the national security.

 

U.S. government classification over time (graph by the Information Security Oversight Office). Click for larger image.

Unfortunately, the government is not following its own laws. Using these standards to assess actual classification practices, an internal government review by the Information Security Oversight Office (ISOO) found that, in 2009, 35% of the classified documents examined did not meet the classification criteria.

The problem with poor oversight of government classification has been growing for decades – at least since Nixon’s administration prosecuted Daniel Ellsberg for leaking the Pentagon Papers – but since 2001 it has exploded. To understand how this happens, it helps to know some specifics about our classification authority structure and process.

Currently, more than 4.2 million people have classification clearance, while 1 million hold Top Secret clearance. But even though there are literally millions of low-level government employees and contractors with the authority to classify documents, most of these classification decisions will never be reviewed by a second party.

Furthermore, so many documents are classified in part due to what the Brennan Center for Justice calls the “skewed incentive structure” of the system, wherein officials face no repercussions for classifying documents that don’t meet the criteria, but there are severe consequences for failing to keep sensitive information secret. Whenever remotely unsure, officials err on the side of caution.

One of the ancillary effects of WikiLeaks releasing thousands of diplomatic cables is that it calls more public attention to just how increasingly massive and harmful America’s culture of overclassification really is.

Bradley Manning’s defense requested dozens of witnesses who the military investigation officer chose not to compel to testify at the hearing. Some of the most important witnesses were being called upon to testify directly to this problem of overclassification.

For example, Coombs asked that retired Defense Secretary Robert M. Gates testify

that the Afghanistan and Iraq SIGACT releases did not reveal any sensitive intelligence sources or methods. He will also testify that the Department of Defense could not point to anyone in Afghanistan or Iraq harmed due to the documents released by Wikileaks. He will testify that the Afghanistan and Iraq SIGACTs are simply ground-level field reports that document dated activities which do not disclose sensitive information or our sources and methods. [He] will also testify that the initial public descriptions of the harm to foreign policy due to the publication of diplomatic cables were ‘fairly significantly overwrought.’

Government officials are well aware of the problems with staff being able to improperly classify documents without repercussions. Some seek to address it, and some use it to their advantage. Criticisms of the U.S. government’s classification system have come from high-ranking government authorities on a recurring basis for decades. A number of congressionally commissioned reviews have requested that the problem be addressed, and even former Bush Administration CIA Director Porter Goss admitted, “We overclassify very badly.”

President Obama directed a 2009 memo to address overclassification, but the problem has increased under his presidency. According to the ACLU‘s ‘Secrecy Report’ issued this year (PDF), the U.S. classified 76,795,945 documents in 2010, the most in history and eight times as many as were classified in 2001. It’s also 300 times more than were released in Cablegate, which was the largest leak of documents in U.S. history at 251,287. Classifying that many documents is incredibly expensive. According to the Information Security Oversight Office, the government spent more than $10 billion on classification in 2010 alone (PDF).

Overclassification on this gigantic scale has real ramifications for policy. As the Brennan Center argues, overclassification “jeopardizes national security,” “prevents federal agencies from sharing information internally, “contributed to intelligence gaps in the months before the September 11, 2001, attacks,” and “corrodes democratic government” by hiding valuable information from national discussions.

WikiLeaks reveals exactly how this extensive secrecy shapes foreign policy. Glenn Greenwald highlighted reports suggesting that WikiLeaks’ release of a diplomatic cable chronicling U.S. soldiers’ summarily executing several Iraqi civilians, including small children, strained relations between the United States and Iraq and encouraging Iraqi leaders to reject the Obama administration’s deal to keep U.S. troops after the 2011 deadline. As Greenwald says, “whoever leaked that cable cast light on a heinous American war crime and… thus helped end this stage of the Iraq war.”

Several governmental and independent figures have recommended remedies for this system, including requiring officials to justify classification, auditing classifiers’ records, and cash prizes for spotlighting documents that are unnecessarily classified. But as Jennifer Lynch and Trevor Timm of the Electronic Frontier Foundation argue, none of these would be necessary if the Obama administration followed through on his 2009 transparency proposals. The issue is gradually gaining traction in Congress, though. In a December, 2010, hearing on WikiLeaks, Rep. John Conyers pushed back against calls to prosecute WikiLeaks founder Julian Assange, citing overreach “by the Executive Branch when it comes to classifying documents.”

 

From President Obama’s Memorandum on Transparency and Open Government, 1/21/09

If the Obama Administration wants to show it’s serious about addressing overclassification and to regain some credibility regarding its ability to protect whistle-blowers, it needs to acknowledge David Coombs’ closing argument explaining why PFC Manning is being unfairly and arbitrarily overcharged.

In his closing words, Coombs implored the military to “give the government a reality check,” and to live up to its own professed standards of openness and accountability.

Let’s tell them, he said, quoting former Supreme Court Justice Lois Brandeis’ famous call for transparency, that “sunlight is the best disinfectant.”

The Scale of American Overclassification

Progress and the NDAA

Last week, Gordon Hirabayashi, a Japanese-American who was imprisoned for refusing the federal government’s internment camps during World War II, died at 93. He’s a little-known hero, and here’s what he was up against:

In February 1942, two months after the Japanese attacked Pearl Harbor, President Franklin D. Roosevelt, in the name of protecting the nation against espionage and sabotage, authorized the designation of areas from which anyone could be excluded. One month later, a curfew was imposed along the West Coast on people of Japanese ancestry, and in May 1942, the West Coast military command ordered their removal to inland camps in harsh and isolated terrain.

Forty years later, and less than 30 years ago, Hirabayashi was finally “vindicated” as his conviction was overturned, but he used his freedom to speak on his Constitutionally protected rights:

Mr. Hirabayashi and his fellow Japanese-Americans Fred Korematsu and Minoru Yasui, who all brought lawsuits before the Supreme Court, emerged as symbols of protest against unchecked governmental powers in a time of war.

“I want vindication not only for myself,” Mr. Hirabayashi told The New York Times in 1985 as he was fighting to have his conviction vacated. “I also want the cloud removed from over the heads of 120,000 others. My citizenship didn’t protect me one bit. Our Constitution was reduced to a scrap of paper.”

Compare what Hirabayashi was fighting in 1942 with what is now legally codified under the most recent National Defense Authorization Act (NDAA), which President Obama threatened to veto until it included language allowing U.S. citizens to potentially be indefinitely detained.

Here are the relevant sections of the NDAA on indefinite detention:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AU- THORIZATION FOR USE OF MILITARY FORCE.

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 includes the authority for the Armed Forces of the United States to detain covered persons pending disposition under the law of war.

Those “covered persons”:

(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.

Length of detention:

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

Presidential waiver:

WAIVER FOR NATIONAL SECURITY.—The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

Paragraph (1) on United States citizens:

(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.

As you can read, the bill’s language makes little effort to conceal the newly granted power for the president to simply tell congress that it’s in the interest of national security to indefinitely detain U.S. citizens deemed to have “directly supported” American enemies. (Bradley Manning, by the way, is accused of indirectlyaiding the enemy,” so this bill is just a word short of ending his trial altogether.)

I don’t intend to suggest that the potential for indefinite detention of American citizens is inherently worse than that of citizens anywhere else – it’s not. International law is supposed to enforce due process for people anywhere and everywhere.

I also don’t want to overstate how new these powers are: instead, the NDAA merely codifies and legalizes what the Obama administration has already claimed the power to do.

Finally, I’m not suggesting that these NDAA provisions are equivalent to the horribly racist and dehumanizing Japanese-American internment camps. They are merely the legal language used to allow for similarly heinous abuses of the Bill of Rights.

But I think it’s worth noting that in 1942, President Roosevelt claimed “protecting the nation against espionage and sabotage” was sufficient justification for creating internment camps specifically for Japanese-Americans. And 70 years later, how far have we come? We now have a president with substantial progressive support ensuring that American citizens can be indefinitely detained at his whim, all in the name of “national security.”

The erosion of our civil liberties in America is rarely going to be as sharply obvious as it was in 1942, when racism was much more overt, a World War was raging, and the Internet wasn’t around to spread dissenting opinions so easily. Nowadays, the government uses official public language promising us of transparency, respect for the rule of law, and enforced civil liberties to make covert work against those very ideals that much harder to see.

Progress and the NDAA