Mr. Jobs, I underestimated you yesterday....
In my Monday "Unwise Latins" LFTC posting (scroll down to Monday's posting) I chastised one of the four Latina contributors to an LA Times discussion of the Sotomayor "wise Latina" issue. She stated that for 200 years every jurist in America had been racist. I cited two Supreme Court jurists who dissented in landmark cases, Benjamin Curtis in Dred Scott v. Sandford (1857) and John Marshall Harlan in Plessy v. Ferguson (1896). I noted Harlan's famous "color-blind" description of the Constitution. I had forgotten, having read the dissent decades ago, that the full passage is less edifying:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.
I checked Justice Curtis's dissent in Dred Scott. It runs 88 pages and I did not have time to go through it and verify the absence of racist sentiment. Nor is there an online bio I could find, with sufficient detail. So I will retract his name, too, in that I should not have inferred from his dissent what his personal beliefs were, and error a lawyer like me should know to avoid.
But the rest of my comment on the "wise Latina's" piece stands. As civil rights progress in the court picked up in earnest several decades before the 200th birthday of America, her damning all jurists as racist was over the top.
My good friend & LFTC reader with whom on Tuesday I discussed America's assassination ban disputed my contention that such a ban exists only in America. He named pacifist Germany and Constitutionally-limited Japan as examples. I was unable to verify this on the Internet, but likely he is right.
The following July 15, 2009 report from Stratfor, reprinted with permission from Stratfor, explains why the CIA assassination program likely involved sending hit teams to countries outside the war zone, and not necessarily friendly to the US--and also why, thanks to disclosure by Democrats, the program is dead, and al-Qaeda now knows its operatives in many countries cannot be targeted by American assets:
U.S. Reacion to the CIA Assassination Program
On June 23, 2009, Director of Central Intelligence Leon Panetta learned of a highly compartmentalized program to assassinate al Qaeda operatives that was launched by the CIA in the wake of the 9/11 attacks. When Panetta found out that the covert program had not been disclosed to Congress, he canceled it and then called an emergency meeting June 24 to brief congressional oversight committees on the program. Over the past week, many details of the program have been leaked to the press and the issue has received extensive media coverage.
That a program existed to assassinate al Qaeda leaders should certainly come as no surprise to anyone. It has been well-publicized that the Clinton administration had launched military operations and attempted to use covert programs to strike the al Qaeda leadership in the wake of the 1998 East Africa embassy bombings. In fact, the Clinton administration has come under strong criticism for not doing more to decapitate al Qaeda prior to 2001. Furthermore, since 2002, the CIA has conducted scores of strikes against al Qaeda targets in Pakistan using unmanned aerial vehicles (UAVs) like the MQ-1 Predator and the larger MQ-9 Reaper.
These strikes have dramatically increased over the past two years and the pace did not slacken when the Obama administration came to power in January. So far in 2009 there have been more than two dozen UAV strikes in Pakistan alone. In November 2002, the CIA also employed a UAV to kill Abu Ali al-Harithi, a senior al Qaeda leader suspected of planning the October 2000 attack against the USS Cole. The U.S. government has also attacked al Qaeda leaders at other times and in other places, such as the May 1, 2008, attack against al Qaeda-linked figures in Somalia using an AC-130 gunship.
As early as Oct. 28, 2001, The Washington Post ran a story discussing the Clinton-era presidential finding authorizing operations to capture or kill al Qaeda targets. The Oct. 28 Washington Post story also provided details of a finding signed by President George W. Bush following the 9/11 attacks that reportedly provided authorization to strike a larger cross section of al Qaeda targets, including those who are not in the Afghan theater of operations. Such presidential findings are used to authorize covert actions, but in this case the finding would also provide permission to contravene Executive Order 12333, which prohibits assassinations.
In the immediate aftermath of the 9/11 attacks, Bush and the members of his administration were very clear that they sought to capture or kill Osama bin Laden and the members of the al Qaeda organization. During the 2004 and 2008 presidential elections in the United States, every major candidate, including Barack Obama, stated that they would seek to kill bin Laden and destroy al Qaeda. Indeed, on the campaign trail, Obama was quite vocal in his criticism of the Bush administration for not doing more to go after al Qaeda’s leadership in Pakistan. This means that, regardless of who is in the White House, it is U.S. policy to go after individual al Qaeda members as well as the al Qaeda organization.
In light of these facts, it would appear that there was nothing particularly controversial about the covert assassination program itself, and the controversy that has arisen over it has more to do with the failure to report covert activities to Congress. The political uproar and the manner in which the program was canceled, however, will likely have a negative impact on CIA morale and U.S. counterterrorism efforts.
As noted above, that the U.S. government has attempted to locate and kill al Qaeda members is not shocking. Bush’s signing of a classified finding authorizing the assassination of al Qaeda members has been a poorly kept secret for many years now, and the U.S. government has succeeded in killing al Qaeda leaders in Pakistan, Yemen and Somalia.
While Hellfire missiles are quite effective at hitting trucks in Yemen and AC-130 gunships are great for striking walled compounds in the Somali badlands, there are many places in the world where it is simply not possible to use such tools against militants. One cannot launch a hellfire from a UAV at a target in Milan or use an AC-130 to attack a target in Doha. Furthermore, there are certain parts of the world — including some countries considered to be U.S. allies — where it is very difficult for the United States to conduct counterterrorism operations at all. These difficulties have been seen in past cases where the governments have refused U.S. requests to detain terrorist suspects or have alerted the suspects to the U.S. interest in them, compromising U.S. intelligence efforts and allowing the suspects to flee.
A prime example of this occurred in 1996, when the United States asked the government of Qatar for assistance in capturing al Qaeda operational mastermind Khalid Sheikh Mohammed, who was living openly in Qatar and even working for the Qatari government as a project engineer. Mohammed was tipped off to American intentions by the Qatari authorities and fled to Pakistan. According to the 9/11 commission report, Mohammed was closely associated with Sheikh Abdullah bin Khalid al-Thani, who was then the Qatari minister of religious affairs. After fleeing Doha, Mohammed went on to plan several al Qaeda attacks against the United States, including the 9/11 operation.
Given these realities, it appears that the recently disclosed assassination program was intended to provide the United States with a far more subtle and surgical tool to use in attacks against al Qaeda leaders in locations where Hellfire missiles are not appropriate and where host government assistance is unlikely to be provided. Some media reports indicate that the program was never fully developed and deployed; others indicate that it may have conducted a limited number of operations.
Unlike UAV strikes, where pilots fly the vehicles by satellite link and can actually be located a half a world away, or the very tough and resilient airframe of an AC-130, which can fly thousands of feet above a target, a surgical assassination capability means that the CIA would have to put boots on the ground in hostile territory where operatives, by their very presence, would be violating the laws of the sovereign country in which they were operating. Such operatives, under nonofficial cover by necessity, would be at risk of arrest if they were detected.
Also, because of the nature of such a program, a higher level of operational security is required than in the program to strike al Qaeda targets using UAVs. It is far more complex to move officers and weapons into hostile territory in a stealthy manner to strike a target without warning and with plausible deniability. Once a target is struck with a barrage of Hellfire missiles, it is fairly hard to deny what happened. There is ample physical evidence tying the attack to American UAVs. When a person is struck by a sniper’s bullet or a small IED, the perpetrator and sponsor have far more deniability. By its very nature, and by operational necessity, such a program must be extremely covert.
Even with the cooperation of the host government, conducting an extraordinary rendition in a friendly country like Italy has proved to be politically controversial and personally risky for CIA officers, who can be threatened with arrest and trial. Conducting assassination operations in a country that is not so friendly is a far riskier undertaking. As seen by the Russian officers arrested in Doha after the February 2004 assassination of former Chechen President Zelimkhan Yandarbiyev, such operations can generate blowback. The Russian officers responsible for the Yandarbiyev hit were arrested, tortured, tried and sentenced to life in prison (though after several months they were released into Russian custody to serve the remainder of their sentences).
Because of the physical risk to the officers involved in such operations, and the political blowback such operations can cause, it is not surprising that the details of such a program would be strictly compartmentalized inside the CIA and not widely disseminated beyond the gates of Langley. In fact, it is highly doubtful that the details of such a program were even widely known inside the CIA’s counterterrorism center (CTC) — though almost certainly some of the CTC staff suspected that such a covert program existed somewhere. The details regarding such a program were undoubtedly guarded carefully within the clandestine service, with the officer in charge most likely reporting directly to the deputy director of operations, who reports personally to the director of the CIA.
As trite as this old saying may sound, it is painfully true. In the counterterrorism realm, leaks destroy counterterrorism cases and often allow terrorist suspects to escape and kill again. There have been several leaks of “sources and methods” by congressional sources over the past decade that have disclosed details of sensitive U.S. government programs designed to do things such as intercept al Qaeda satellite phone signals and track al Qaeda financing. A classified appendix to the report of the 2005 Robb-Silberman Commission on Intelligence Capabilities (which incidentally was leaked to the press) discussed several such leaks, noted the costs they impose on the American taxpayers and highlighted the damage they do to intelligence programs.
The fear that details of a sensitive program designed to assassinate al Qaeda operatives in foreign countries could be leaked was probably the reason for the Bush administration’s decision to withhold knowledge of the program from the U.S. Congress, even though amendments to the National Security Act of 1947 mandate the reporting of most covert intelligence programs to Congress. Given the imaginative legal guidance provided by Bush administration lawyers regarding subjects such as enhanced interrogation, it would not be surprising to find that White House lawyers focused on loopholes in the National Security Act reporting requirements.
The validity of such legal opinions may soon be tested. House Intelligence Committee Chairman Silvestre Reyes, D-Texas, recently said he was considering an investigation into the failure to report the program to Congress, and House Democrats have announced that they want to change the reporting requirements to make them even more inclusive.
Under the current version of the National Security Act, with very few exceptions, the administration is required to report the most sensitive covert activities to, at the very least, the so-called “gang of eight” that includes the chairmen and ranking minority members of the congressional intelligence committees, the speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate. In the wake of the program’s disclosure, some Democrats would like to expand this minimum reporting requirement to include the entire membership of the congressional intelligence committees, which would increase the absolute minimum number of people to be briefed from eight to 40. Some congressmen argue that presidents, prompted by the CIA, are too loose in their invocation of the “extraordinary circumstances” that allow them to report only to the gang of eight and not the full committees. Yet ironically, the existence of the covert CIA program stayed secret for over seven and a half years, and yet here we are writing about it less than a month after the congressional committees were briefed.
The addition of that many additional lips to briefings pertaining to covert actions is not the only thing that will cause great consternation at the CIA. While legally mandated, disclosing covert programs to Congress has been very problematic. The angst felt at Langley over potential increases in the number of people to be briefed will be compounded by the recent reports that Attorney General Eric Holder may appoint a special prosecutor to investigate CIA interrogations and ethics reporting.
In April we discussed how some of the early actions of the Obama administration were having a chilling effect on U.S. counterterrorism programs and personnel. Expanding the minimum reporting requirements under the National Security Act will serve to turn the thermostat down several additional notches, as did Panetta’s overt killing of the covert program. It is one thing to quietly kill a controversial program; it is quite another to repudiate the CIA in public. In addition to damaging the already low morale at the agency, Panetta has announced in a very public manner that the United States has taken one important tool entirely out of the counterterrorism toolbox: Al Qaeda no longer has to fear the possibility of clandestine American assassination teams.
I identified Jack Kemp as having been a HUD Secretary under Ronald Reagan. I was wrong. An NRO eulogy to JFK pinpointed the Bush 41 years (1989 - 1993) as Kemp's HUD years. While correcting that error I will add a little more on how stellar Kemp's football career was: Wiki's Kemp entry gives astonishing details of Kemp's football years (ignore the footnote numbers; italics not used, to aid reading):
Wiki on Kemp Pro Football Years
Kemp led Buffalo to three straight Eastern Division titles and two straight AFL Championships. He led the league in career passes attempted, completions, and yards gained passing. He played in five of the AFL's 10 Championship Games, and holds the same career records (passing attempts, completions, and yardage) for championships. He is second in many other championship game categories, including career and single-game passer rating. A Sporting News All-League selection at quarterback in 1960 and 1965, he was the only AFL quarterback to be listed as a starter all 10 years of the league's existence and one of only 20 players to serve all 10 of those years. His number 15 was retired by the Bills in 1984.
However, despite his success and important AFL records, he is most prominently listed in the NFL record book for less flattering accomplishments, including his place as a former record holder for most quarterback sacks in a game. Despite Kemp's many records, Joe Namath and Len Dawson were selected as the quarterbacks for the All-time AFL team. Kemp is a member of the Greater Buffalo Sports Hall of Fame and the Buffalo Bills' Wall of Fame.
Kemp co-founded the AFL Players Association with Tom Addison of the Boston Patriots, and was elected its president five times. His founding of and involvement in the players' union contributed to his frequent siding with the Democrats on labor issues later in his career.
In prior LFTC postings I have referred to Rep. Barney Frank (D-MA) & Sen. Christopher Dodd (D-CT) as finance chairmen. LFTC readers deserve more precise terminology re Dodd, and a correction re Frank. Dodd is actually Chairman of the Senate Committee on Banking, Housing & Urban Affairs. (In the Senate, the Committee on Finance writes tax laws, a task undertaken in the House by the Committee on Ways & Means.) Frank is Chairman of the House Committee on Financial Services. I apologize for any inconvenience caused LFTC readers.
I goofed on an easy calculation in my March 4 posting (yesterday) on the Dow Jones numbers. My corrected paragraph:
Divide these metrics into two periods, for simplicity: Nov. 3 close - Jan 19 close, from 9326 to 8279, down 11.3 percent; 8279 Jan. 19 close to 6763 Mar. 3 close, down another 18.3 percent--to a full 10 percent below the 7500 transition period bottom. Thus, the DJIA has fallen nearly twice as much (18.3 percent is 1.6 times 11.3 percent) since 44 was inaugurated than during his transition. This second fall took 6 weeks, versus 11 weeks for the first fall during the transition. Were the DJIA to fall at the same rate over the next 5 weeks as in the past 6, it will have fallen 1/3 in value since 44 took office, down to about 5,500--a level not seen since February 1996. This accelerating decline makes sense, because a notably moderate transition has been followed by a left-wing blowout in President Obama's first 6 weeks.
LFTC readers, please accept my apologies.
I recently wrote in LFTC that Bank of America paid 22 cents on the dollar for that portion ($30B) of Merrill Lynch's portfolio that held troubled assets. The actual buyer of the bad stuff was Lone Star Fund (of Texas).
My recent CIA tapes posting compared the situation to that with Joe Wilson and Valerie Plame, in which a special counsel, not working at the Justice Department, was hired. Such prosecutors have a single-case agenda, and thus little incentive to exercise discretion to decline to prosecute an offense. This Wall Street Journal editorial makes clear that the prosecutor, John Dunham, is a career Justice Department employee, and thus answerable to the Attorney-General, and the Department's priorities, in a way that outside special counsels are not. The prospect of a runaway investigation are thus lessened. It could still wind up a big mess, but there is at least a chance that it does not turn into one.
It seems I jumped the gun yesterday in reporting that Alan Greenspan said in his just-released memoirs that Bush went to war for oil, implying 43 lied. Greenspan now says his passage was misinterpreted. Upon seeing it on a TV screen, I have concluded it was. He believes the Iraq War is ultimately about oil, but did not intend to accuse 43 of lying. My apologies to Mr. Alan (Not Cindy) Greenspan.
My 1/29/07 posting on Bush's energy plan contained a statistic on rising US oil imports that was posted originally as rising oil consumption. The increase from 34.8 to 60.3 percent was in oil imports. Thanks to an alert LFTC reader for informing me.
Having finished 2006 with a rare "Oops!" it seems LFTC stepped in it on the very first article posted in 2007, LFTC's 1/3 tribute to former President Ford. As Felix Rohatyn, the prominent investment backer who helped save NYC then, recalls , Ford did eventually extend credit, as part of a federal, state and private market financial reform package. His article details the tumultuous events of 1975, and merits a read.
An attentive LFTC reader called to my attention a perspective on the late Chilean dictator Augusto Pinochet, that calls into question my own prior postings on Pinochet. It seems I overlooked some important arguments: (1) as of September 1973 the democratic opposition to Allende's economic mismanagement had by no means exhausted its options; (2) Allende was not yet in a strong enough position to seize dictatorial power; (3) the 3,200 killed--out of 15 million population, the per capita equivalent of 64,000 killed in a country with America's 300 million--do not include thousands tortured; (4) Pinochet's economic policies were mixed--an overvalued currency, converting foreign private debt into public debt and massive corruption, tainted his achievements; (5) thuggish leaders like Russia's Vladimir Putin justify their repression by citing Pinochet. Also of note, albeit not mentioned in the article but vouchsafed to me credibly, is that Pinochet didn't initially step down after the referendum on his rule, but rather tried to stay on and had to be pushed out by pressure from his fellow Chileans and international pressure as well, including by the United States.
All fair enough. LFTC remains resolute, however, in preferring, on a lesser of evils basis, a Pinochet to a Castro; if post-Fidel Cuba is to be saved it will be by Miami's Cuban community, not Raul Castro. In today's Mideast, a Pinochet is preferable, on the same basis, to the Islamofascist rulers of places like Saudi Arabia and Iran. Not only was Pinochet, while brutal, less repressive than Islamist rulers; he never sought to export revolution worldwide. But LFTC will concede that AP is not worthy of being chosen as a model for leadership. Thanks again to an alert, informed LFTC reader for the input.
On 12/13 I posted my comments on Kofi Annan's pathetic attack on American policy. I stated therein that in the 1990s he had been responsible for human rights policy at the UN. In fact, his specific responsibility was to supervise peacekeeping operations. It was in the latter capacity that Annan ignored appeals from his field generals to stop genocide.
The first OOPS! of 2006 by LFTC: Contrary to my 4/24 entry on the wrist-slap given the NYC transit workers for their illegal XMAS walkout, no contract is currently in effect. The union membership did a re-vote that approved the Metropolitan Transportation Authority's pre-XMAS contract offer--a very generous one, but MTA chairman Peter Kalikow says that the MTA's position is that the original rejection "voided" the contract, and none is yet on the table. In response to union threats of a targeted slowdown if the contract is not approved soon, Kalikow replied: "They have no right to push that deal, in its exact form, down our throat." A state panel has accepted the MTA's position for binding arbitration. I regret the error. Stay tuned.
On Monday Dec. 19 I reported on a Jed Babbin article on TAS that talked about when the Attorney-General and President can bypass court approval under the Foreign Intelligence Surveillance Act of 1978 (FISA). I said that the FISA statute has twin exceptions. There are indeed such exceptions, but they are not found in the language of the law itself. Rather, as provided in a declassified version of a still-secret document, an NSA regulation sets them forth. Babbin explained Monday in his TAS piece:
implementing FISA clarify the law's exceptions to the requirements for
a FISA court warrant. U.S. Signals Intelligence Directive, dated July
27, 1993, is the primary regulation governing NSA's operations. It is a
secret document. (We at TAS, unlike the NYT, never,
ever, disclose government secrets that may damage national security.
What follows is taken from a declassified version obtained from an open
"Under Section 4 of USSID 18, communications which are known to be to or from U.S. persons can't be intentionally intercepted without: (a) the approval of the FISA court is obtained; OR (b) the approval of the Attorney General of the United States with respect to 'communications to or from U.S. PERSONS outside the United States...international communications' and other categories of communications including for the purpose of collecting 'significant foreign intelligence information.'
"USSID 18 goes on to allow NSA to gather intelligence about a U.S. person outside the United States even without Attorney General sanction in emergencies 'when securing the approval of the Attorney General is not practical because...the time required to obtain such approval would result in the loss of significant foreign intelligence and would cause substantial harm to national security.'
"So FISA itself and USSID 18 provide a lot of swinging room for what the president ordered. If the people subjected to the intelligence gathering weren't 'U.S. persons,' if Attorney General Gonzales made certain findings (which he did, according to several accounts) and if the NSA went ahead because it reasonably believed it would lose significant foreign intelligence if it held its hand, the operation is legal. Period."
My apologies to LFTC readers for any inconvenience caused them--or anyone they may have passed my gaffe on to--by this error. Here again is the full 12/19/05 TAS link.
Babbin: 43 Acted Legally
5 postings: (1) E = mc what????--"It's the Earth, Stupid!"; (2) Judge-Made Wartime Porn--Weenie Watch; (3) Waylaying DeLay--The Home Front; (4) Iraq: Culture Counts Everywhere--Us v. Them; (5) 20,000 Leagues To A Wrong Turn--OOPS!.
One faithful blog reader, Father Vincent J. Rigdon, a man of wisdom and grace whom I have been privileged to know for over 35 years, was kind enough to point out, as to my 9/28 posting (Captain Nemo, Call Your Office) that Jules Verne's fictional submarine did not travel 20,000 leagues deep, but rather that was total horizontal cruising distance. Vince, more scholarly on this subject than I, not only saw the movie but read the book, and saw an illustration at the end that revealed this. To Vince, my thanks; to readers, my apologies.