Government Oversight!

DOD Replicates/Battles CIA

January 23 Washington Post details a new secret CIA-like operation within the Defense Department. It is a fascinating story in many ways.

Start with the backstory. The 9/11 Commission strongly criticized agency turf wars, one of the biggest being between the CIA, FBI and Defense Department (DOD). So here you read a story leaked by unknown people, probably CIA supporters. It reveals a burgeoning battle for power between DOD and CIA.

Next is the main event. The DOD says it doesn’t want to rely for its human intelligence (on the ground spying) on the CIA. So it creates a segment called Strategic Support Branch. It combines Army Delta forces, an electronic surveillance unit and Navy SEALS. They are assigned by the Secretary of Defense to go to places the military is operating (like Iraq, Afghanistan, and Bosnia!!) but also other countries including allies. The justification is the endless and limitless “war on terror.” The agenda is broad – probably mainly an assessment of a country or group’s resources in order to plan how to destroy them.

So who authorized this? Not legislation, not apparently a presidential order, but rather this plan is the brainchild of Defense Secretary Donald Rumsfeld, reinterpreting dozens of years of aggression-limiting policy and deciding to blast it apart as “hide-bound” and “risk-averse.” Several unnamed legislators are quoted – those on the House Intelligence Committee had not previously heard of the program. Provisions including the War Powers Act, and various dozen other treaties, conventions and etc., limit what kind of aggressive action can be taken in others’ countries. Those things are passé, obviously.

Of course there’s always a wink and a nod about spying and its conflict with laws and public pronouncements. Every big and some little countries do it. And our country probably does it more than anyone. Indeed we have overthrown countries with deniability – while they were formally our allies. But there the current historical record, though spotty, seems to indicate that usually a President and some high level Congressional folks would sign off on these or related behaviors. ‘Covert actions’ by law require Presidential sign-off and Congressional notification. But in its first public exposure, this defense program doesn’t require that authorization.

Who oversees this? Another Congressman, a Republican, talked anonymously about how this looks like a plan to get around oversight. Apparently this new set-up is being categorized not as a deployment of troops, but rather as “traditional…military activities” about which Congress is not required to be fully informed. Another of the 9/11 Commission’s complaints was the too large number of separate committees overseeing the country’s anti-terror activities. But the 9/11 Commission didn’t recommend that Congress be excluded from oversight; on the contrary, it wanted oversight done better.

Senator McCain now is calling for hearings on the program. If some key committee folks in Congress aren’t going to hear about new secret military incursions into Iran or North Korea (to take two not so random countries out of a hat), how can we the public opine about them and a possible run-up to a new war? Remember the Lusitania!

Domestic Commandos?

A side story to this program comes out of a new book by William Arkin: Code Names: Deciphering US Military Plans, Programs and Operation in the 9/11 World. Arkin describes many secret and not secret government programs. One unclassified program, “Power Geyser,” is apparently first described publicly by Arkin. It is a domestic military commando unit assigned to protect the President, and support domestic law enforcement during high profile events (e.g. Olympics and party conventions). This domestic role for the military- as described in JCS Conplan 0300-97 – calls for “special-mission units in extra-legal missions to combat terrorism in the” U.S. This seemingly unlimited agenda appears problematic. You will remember that we used to have posse comitatus, law and policy limiting the role of the military domestically. It’s been greatly eroded, but this program might provide the final death knell.

TO DO: Support hearings in House and Senate Intelligence and Defense Committees. Demand specific authorization and oversight at the very least. So much more should be demanded but the above is do-able.

Detainees – What to Do with them?

Who are we talking about? People not charged with a crime, most of whom have not talked to a lawyer, and of course who have not had a trial. There are lots of kinds of detainees, among them: 1) people who were caught fighting in Afghanistan or Iraq; 2) people (mostly Arab or Muslim) in the U.S. whom the government thought right after 9/11 might be involved in terrorism; and 3) demonstrators or potential demonstrators whom the government just holds prior to charging them with some usually minimal crime, or releases.

Who you can hold and why and how long are complicated issues for the government (and therefore for the rest of us). They are tied up now in the Attorney General nomination of Alberto Gonzales, the Homeland Security chief nomination of Michael Chertoff, and the Secretary of State nomination of Condoleezza Rice. The votes on Gonzales and Rice have been delayed by the Democrats over concerns that these issues have not been adequately answered by the nominees. As Mr. Chertoff was for 3 years head of the criminal division of the Justice Department, and helped design counterterrorism policies as well as supervised terrorism cases, his upcoming hearings should be interesting, and hopefully revealing.

Detention is all over the courts; it is an international issue. It covers: 1) people in the U.S.; 2) at Guantanamo (sort of the U.S.); 3) in Iraq and Afghanistan under U.S. control; and 4) renditions – people the U.S. intentionally delivers beyond its overt control for yet more harsh treatment. The issues have broken down into whether the government can hold people, and how it treats people it holds. Today we’ll talk about detaining and not so much treatment.

Supreme Court on Marielistas - January 12 the Supremes ruled the U.S. can’t jail refugees for longer than prescribed punishment for the crimes for which they were convicted. This case involved a mass of people who fled Cuba, many of whom had criminal records in Cuba. This decision took a fine stand against a permanent detention situation where people can’t be deported.

Guantanamo – Two Federal District Court of DC Cases – Judge Richard Leon decided the case of 7 detainees in Guantanamo. They had sought to have a habeas hearing before a judge. Judge Leon ruled they have a right to ask for a hearing but not the right to have a hearing. He somehow based this on the June Supreme Court decision.

Now (don’t ask how, but) Judge Joyce Green has simultaneously heard the case of 54 detainees in Guantanamo in the same court. She is due to issue her decision shortly, and at the hearing, seemed somewhat more sympathetic to the detainees. Opposite decisions will create a mess and go to an appeals court of course. Similar decisions would likely be appealed as well.

Administration Plans Permanent Detention - At the same time, the news broke that the Pentagon and CIA have requested from the White House a comprehensive plan to keep people detained long term. Sen. Lugar (R-IN) immediately objected to the plan. Among the options are sending them to jail in their home countries. Rep. Jane Harman (D-CA) is requesting a public discussion on the issues.

TO DO: Support this request for hearing to your Senator and Representatives!

Demonstrator Detentions

New York Republican Convention: New York Judge John Cataldo of the State Supreme Court has indicated he will investigate the arrest and detention of hundreds of demonstrators held during the Republican convention last summer. Suits have been filed by the National Lawyers Guild over length and conditions of detentions.

District of Columbia: Last month we reported on the demonstrator’s rights bill passed by the DC City Council, the “First Amendment Rights and Police Standards Bill.” Mayor Anthony Williams has vetoed the bill, apparently because he objects to taping police interviews of demonstrators. The Council passed the bill 12-1 originally and is likely to override William’s veto. For the text again, go to and select bill B15-0968. Assuming the Council overrides the veto, it then goes to the U.S. House for it to consider a veto.

TO DO: For those of you who live in DC, call your Councilmember and urge them to uphold this important bill. For those of you outside, remember to contact your Representative to have them let the bill proceed to law in the colony of DC.

In another DC demonstration issue, a September 2002 World Bank and IMF demonstration, hundreds of people were preemptively arrested. Several suits were brought, and evidence in the case was devastating to the police and City. Now a small case has been settled with 7 demonstrators each getting $50,000 and police agreeing to some changes in mass protest procedures. The other class action cases await!

Alberto Gonzales Nomination: Slick and Vague Answers

Alberto Gonzales had his day of hearings at the Senate Judiciary Committee January 6th. He defended his record and yet said he opposes torture and will fight prison abuse. A quick read of the coverage of his testimony yields a man amenable to do the right thing, even if he can’t remember much about how involved he was in authoring key memoranda spelling out a vividly expanded legal use of techniques normally associated with torture. A closer look at the testimony yields a man who would change little or nothing from a discredited policy that yielded horrible and widespread abuses of detainees. Even Attorney General Ashcroft opposes torture in interrogations because it doesn’t work; Gonzales wouldn’t even go there. Perhaps worse, he would not categorically oppose the use of torture under any circumstances, using the time honored – “I’ll get back to you on that.” Fortunately, a few Senators on both sides of the aisle questioned Gonzales closely and critically and remain concerned.

Torture Redefined?

New stories about wider torture abuses by U.S. military and affiliates keep surfacing almost daily. New awful techniques have been described by victims, interrogators and observers. The day before Mr. Gonzales testified, the U.S. announced that it has a new expanded definition of torture. The clear implication is that the Gonzales approved definition is recognized as problematic by the administration.

The new definition makes clear that torture can include “severe physical suffering” as well as “severe physical pain” and that an interrogator need not specifically intend a specific harm for it to be torture.

More important, probably, are the books and reports and files coming out documenting how the U.S. came to torture detainees it held. The quick story is told in January 23 Sunday New York Times Book Review, “Atrocities in Plain Sight” by Andrew Sullivan, which reviews Steven Strasser’s Abu Ghraib Investigations, and Mark Danner’s Torture and Truth. Sullivan starts with the “unlawful combatant” designation and proceeds from there down the road. He notes hopefully that the military on the ground outed itself in this atrocity – of course not at the Attorney General level. Read these yourself and then weep.

TO DO: This defies easy answers, but certainly the Congress and the Courts must continue to pursue these cases to the end and bring some justice to bear as high up as the system will bear. Your speaking out in your local paper, in your communities and to your elected representatives will be a start.