- In the past few weeks President Obama has struggled to
deliver on changes he promised in several overhanging Bush national security
policies. He began his administration with a clearly stated plan to (a)
terminate the War on Terrorism, (b) close the prison at Guantanamo, (c)
do away with the practice of sending alleged enemy combatants to overseas
sites for torture and anonymous lockup, (d) close the black American sites
involved in such concealment of prisoners, (e) terminate the military tribunals
conceived by the Bush team to keep "enemy combatants" out of
America's open court system, and (f) continue the war in Afghanistan. Except
for the Afghan war, those steps were understood by Obama supporters to
be part of the "change" he pledged in his campaign. However,
at every turn he paints a confusing picture of his intentions as he meets
resistance from the national security establishment, the US Congress, the
Military Industrial Complex, or the public.
- Because the Bush team left Obama such a percolating mess,
the new team actually did not have a hundred days to sort things out. In
a recent article (see: The Politics of Excusing Torture in the Name of
National Security at FindLaw.com) former presidential counsel John W. Dean
describes Obama's choices with the clarity of long political experience.
As Dean sees it, Obama's possible plans for dealing with most of the problems
outlined above collide head on with the needs and preferences of the national
security establishment. What Dean implies but does not say is that Washington
changed leadership on January 20, but the city's long-standing oligarchy
remained in place. To keep the establishment with him, Dean's appraisal
suggests the President will be pushed to compromise on critical elements
of his entire agenda.
- That "entire agenda" is hard to divide into
manageable parts. In his disturbing work, The American Way of War, Eugene
Jarecki paints a picture in which Obama's current problems basically reflect
a process of decay of the American republic that began at the end of World
War II. Some conservative believers in the republic as founded fear that
the Bush team moved the country only a few steps from outright fascism.
The centerpiece of the process was the immediate postwar descent of the
American system into excessive reliance on militarism. Having a military
establishment whose annual budget is 20 or more times that of the country's
diplomatic arm is a vivid benchmark of the country's modern extreme reliance
on military force to hold its global power position. Jarecki's conclusion
is that this descent into militarism gave the Military Industrial Complex
flagged by President Eisenhower an overweening power over US policies and
- The argument may seem intricate but it is pretty simple.
Even before 9/11 the Bush team and especially its neoconservative (neocons)
supporters were working toward a global hegemonic scheme that relied on
military power. However, their goal was an enhancement, not a basic change,
of the long-term American power position. Even though the US was the most
powerful state on earth, the Bush neocons felt US military power needed
a great deal of work to overcome the neglect (meaning disuse) it had begun
to experience after the Berlin Wall came down.
- The United States had no global enemy, but the attacks
on the World Trade Centers and the Pentagon gave the Bush administration
a global enemy in the form of international terrorism as represented by
al Qaida. Since the leadership of al Qaida was somewhere in Afghanistan,
that justified an undeclared war with Afghanistan where the first task
was to overthrow the Taliban extremists, a Muslin religious group who ruled
that country and gave al Qaida a place to live. Then the neocons moved
to take out Iraq's Saddam Hussein because allegedly-among the first of
a string of lies-he was allied with al Qaida. Al Qaida then morphed (US
military and CIA intel version) into a leading enemy in Iraq, and that
country became, in the words of US General David Petraeus, "the Central
Front in the War on Terrorism".
- In reality, however, since the middle of 2003 the United
States has been fighting two wars, mainly in Iraq and Afghanistan, neither
one against the governments of those countries. Rather, the Iraq military
forces were defeated within the first week, and the Taliban were overthrown
in Kabul in fairly short order. Any official Afghan enemy represented by
the former Taliban rulers of that country disappeared into Afghanistan's
lofty outback or Pakistan's wild northwest frontier region.
- Obama inherited the remnants of those two aimless wars
still being fought, not against a government, but against small sub-national
groups. Insurgents are now largely quiescent in Iraq, but about 4,000-5,000
of the Taliban are now engaged by the Pakistani army in that country's
northwestern region Swat River valley. Somewhere in that northwest region
are alleged to be the remaining forces of al Qaida, a cluster variously
estimated at 3,000-5,000 members.
- This is all relevant to Obama's problems with delivering
on his political promises, because the enemy combatants held at Guantanamo,
at various black sites such as Diego Garcia in the Indian Ocean, and at
US run Bagram prison in Afghanistan grew out of the two wars and associated
efforts to destroy al Qaida. The US system now contains roughly 800-900
detainees, the great majority of them in Bagram prison. Obama's open public
commitments involve cleaning up only Guantanamo and its detainees.
- Almost immediately on taking his oath of office, President
Obama faced growing pressure from supporters to get on with closing Guantanamo.
To fund the operation, in May the administration requested $80 million
for closure of Guantanamo ($50 million) and to investigate charges of torture
there ($30 million). Those funds were requested in a supplemental appropriation
for funding US wars in Iraq and Afghanistan. However, Hawaii Senator Daniel
Inouye, Chairman of the Senate Committee on Appropriations, took the money
out of this bill because he said the funds were not needed at this time.
That may have been so, but the real causes were congressional problems.
First, some senators expressed discomfort with torture investigations.
Second, the more likely reason for removing the funds was growing congressional
and public debate over what to do with the remaining estimated 240 prisoners
at Guantanamo when the prison closes. Members of Congress said it was too
dangerous to bring the prisoners to the United States, and there were public
complaints about prison safety.
- Obama did not allow much time to pass without responding
to the congressional action. In a May 21 speech at the National Archives,
he restated his intent to close Guantanamo and laid out his plan to deal
with its detainees. He said the members of Congress who argued against
bringing detainees into the American prison system were using "words
that are calculated to scare people rather that educate them." On
prisoners now being held at Guantanamo, the President said his intent was
to transfer them to high security US prisons which, he commented, are "already
holding hundreds of convicted international terrorists, gangsters and murderers."
- To deal with the detainees at Guantanamo, the President
outlined a five part plan. He would: (1) try the ones who violated US criminal
law in US criminal courts; (2) try the ones who violated the rules of war
by his version of military commissions -something like courts-martial;
(3) free the ones ordered to be released by US courts; (4) transfer a number-he
indicated 50 or more-to other unspecified countries "for detention
and rehabilitation"; and finally (5) figure out what to do with "those
who cannot be prosecuted yet who pose a clear danger to the American people."
He gave no indication of numbers associated with each approach, but the
majority evidently would end up before his version of military commissions
or they would be sent abroad.
- That fifth category, Obama indicated in his May 21 speech,
would require a case by case determination. However, those who in the end
were judged to represent genuine danger to the United States would become
"prisoners of war". In effect, this procedure would reduce the
number of such prisoners to a set of hard cases, as he put it, "people
who've received extensive explosives trainingor commanded Taliban troops
in battle, or expressed their allegiance to Osama bin Laden or otherwise
made it clear that they want to kill Americans." However, the President
concluded, "We must have clear, defensible, and lawful standards for
those who fall into this category." This, he said, "is the toughest
single issue that we will face." How this type of hearing would differ
from a trial process was left unclear.
- The proposed plan of attack on the enemy combatant problems
drew immediate fire from critics. The plan on the surface had much more
clarity than anything put forward by his predecessor. However, there were
major gaps. First, Obama did not say how he intended to set aside the loose
procedural language of the Military Commissions Act. The Act actually gives
accused enemy combatants virtually no procedural rights and certainly no
guarantees of due process. Second, he did not indicate means, if any, to
assure that the 50 or so prisoners he would transfer to foreign governments
would not be tortured, as they are now known to be in various countries.
Third, he did not announce closure of the black US sites; instead he apparently
plans to keep them for unspecified short period detentions or contingency
operations, Obama's version of the War on Terrorism. Fourth, Obama outlined
a fairly complete plan for dealing with only about a quarter of the detainee
problem--the prisoners at Guantanamo. He made no mention at all of the
more than six hundred enemy combatants reported to be housed at US-run
Bagram prison in Afghanistan.
- If the normal definitions of US and international law
were applied, use of the term "prisoner of war" for the fifth
category of enemy combatants could bring them under the terms of Article
4 of the Third Geneva Convention. While that category typically excludes
terrorists, saboteurs, mercenaries and spies, putting the fifth group of
detainees in the prisoner of war category would mean they are not chargeable
with acts normally considered acts of war and could not be punished for
them. Fighting back against an invading army, even if you are a civilian,
is not a crime under the Geneva Convention. That classification probably
means as well that these prisoners should be repatriated, if they wish
and if their country of origin will receive them. The dilemma here is that
a finding that they have committed acts not covered by the rules of war,
meaning probably they have committed crimes of violence, would mean they
are entitled to trial in a Federal court where, if not convicted, they
should be set free
- The true test here is whether Obama and his team can-and
indeed intend to-bring handling of these issues properly and fully under
the American legal system. That means application of at least five basic
principles: One US criminal law and procedure is entirely capable
of dealing with terrorist crimes. Two US military tribunals, if used,
must provide a system that protects both the state and the accused. Three-The
US Constitution entitles everyone to due process. Four Even if torture
works, it is not acceptable under American or international law. Five
US national security can successfully withstand the truths that will out
in trials of terrorism cases. Ultimately the American public needs a commitment
that the Obama administration is proceeding in an orderly and legal fashion
to deal with the cases of all detainees held anywhere by Americans or on
behalf of Americans by third parties.
- A cloud over this whole picture is the anomalous war
in Afghanistan/Pakistan. Other things equal, that war will generate new
detainees. Will those detainees be cast into the legal no man's land that
those at Bagram now appear to occupy? The supplemental appropriation that
excluded Obama's request for funding to close Guantanamo provided over
$92 billion to continue the wars in Iraq and Afghanistan. Since the administration
had not requested any funding for taking care of detainees at Bagram, it
is assumed those costs are part of the war costs. In any event, the Bagram
detainees remain anonymous and remote. The total detainee problem is four
times as big as the Guantanamo piece of it. And in fact the anonymous detainees
at Bagram may go on being held without any process to settle their cases
and protect them from torture, even as the Guantanamo issues are resolved
in some fashion that meets US legal, treaty, congressional, or public demands.
- Another cloud is actually the definition of the term
"enemy combatant". Does the term define someone who criminally
sets out to do us harm, or only someone who opposes us as we pursue our
interests? The six hundred or more detainees in Bagram prison were apparently
picked up mainly in the battles with Taliban, al Qaida or other tribal
opponents in Afghanistan. They appear to have been defending their interests
on ground that belongs to them not to us. Does this make their only crime
one of opposing US forces? If it does, that would mean the US has criminalized
insurgency, which is a legitimate form of opposition to an invading force,
especially when such forces present themselves in a war fighting mode.
- The overarching challenge is that the detainee problem
is becoming perpetual. Obama promised, if elected, to bring our troops
home from Iraq while intensifying the war in Afghanistan. Under that model,
the so called War on Terrorism in and around Afghanistan would continue
to generate detainees. However, General George Casey, Army Chief of Staff,
recently indicated that the US Army is planning for a decade-long presence
in both Iraq and Afghanistan. According to the Associated Press, General
Casey said US presence had become necessary to meet a "sustained US
commitment to fighting extremism and terrorism in the Middle East."
In short, the US, as perceived by General Casey, is taking up a long war
against Islamic fundamentalism.
- That US agenda is a case model for provoking insurgency
and terrorism. In each country US-friendly locals are set up to govern
populations who do not want the Americans occupying their countries, and
Casey made it clear that our presence in both countries is an "occupation".
Insurgencies will grow in both countries, US forces will go on being their
best terrorism generators in each country, and the people who fight back
will be taken into custody, if they are not killed. Compared to the growing
and continuing nature of this coming detainee problem, Guantanamo is an
almost trivial pursuit.
- Obama's first task is to break away from the obvious
if unspoken judgment of Bush era officials-and some on his own team-that
treating accused enemy combatants fairly will invite attacks or leave former
detainees free to commit more attacks. Little proof of that has been offered,
but a reputation for brutality appears justified by at least some officials
as a deterrent that would be totally undercut by strict application of
American legal and moral principles.
- This brings us frontally to the challenges now faced
by the Obama administration: Can the national security establishment, the
Congress, its bevy of lobbyists and the public be persuaded that our system
of laws and courts should be protected and applied to all cases? Will Eisenhower's
defined Military/Industrial plus Congressional Complex permit closing down
wars that mainly generate more detainees? To the extent that both wars
are partly religious in focus, are they sustainable US policy? Or will
the administration be forced to compromise? Will it cave and keep detainees
in anonymous and remote locations? Out of public view, will Obama permit
continuance of past Guantanamo practices at Bagram and elsewhere that ultimately
will destroy our system?
- The writer is the author of the recently published work,
A World Less Safe, now available on Amazon, and he is a regular columnist
on rense.com. He is a retired Senior Foreign Service Officer of the US
Department of State whose overseas service included tours in Egypt, India,
Sri Lanka, the Philippines, and Brazil. His immediate pre-retirement positions
were as Chairman of the Department of International Studies of the National
War College and as Deputy Director of the State Office of Counter Terrorism
and Emergency Planning. He will welcome comment at