Monday, November 02, 2009

Weekend In Afghanistan

Dr Abdullah after announcing that he would not be standing in the election run-off

In the United States today, the Declaration of Independence hangs on schoolroom walls, but foreign policy follows Machiavelli.

---Howard Zinn

To maintain this position of disparity (U.S. economic-military supremacy)... we will have to dispense with all sentimentality and day-dreaming.... We should cease to talk about vague and... unreal objectives such as human rights, the raising of the living standard and democratization. The day is not far off when we are going to have to deal in straight power concepts.... The less we are then hampered by idealistic slogans, the better.

---George Kennan
Director of Policy Planning U.S. State Department 1948

We have no honorable intentions in Vietnam. Our minimal expectation is to occupy it as an American colony and maintain social stability for our investments. This tells why American helicopters are being used against guerrillas in Colombia and Peru. Increasingly the role our nation has taken is the role of those who refuse to give up the privileges and pleasures that come from the immense profits of overseas investment.

---Martin Luther King, Jr.
"A Time to Break the Silence" speech given at Riverside Church New York City April 4, 1967

So a romantic weekend in Afghanistan doesn't fit into your idea of attractive vacation plans? Me neither, but the weekend has been filled with strong consideration of what the mission is...and why. The headlines this morning lead off with this war, and there's no more time to avoid it.

Of chief interest to me however is an article posted by Ray McGovern at 3 or 4 sites, including TruthOut and Consortium News. Mr. McGovern, who graduated summa cum laude from Fordham University, was a Federal employee under seven U.S. presidents over 27 years, presenting the morning intelligence briefings at the White House for many of them. His weekend with Afghanistan began Thursday with a RAND-sponsored meeting in the Russell Senate Office Building. His article in full is reprinted following these opening comments.

What we heard more about is the withdrawal of Dr. Abdullah Abdullah from the Afghan runoff election at the week's end. Reports of what actually happened in the original election are surfacing all over the Internet, but not in the mainstream media. No one is denying a corrupt, invalid original election...but no one is demanding Karzai clean up his act either. The US is saying we'll deal with Mr. Karzai later. That's the mission?

Reports lead off this morning's New York Times and also the London Times~~~

On a similar topic, Friday afternoon yielded typical releases by the government of matters we hope won't be noticed. This time the Justice Department let out pages and pages of information about US secret interrogations. If you prefer that kind of start to your week, look here~~~

and here~~~

Now on to Mr. McGovern~~~

Kipling Haunts Obama's Afghan War

By Ray McGovern

November 1. 2009 -- The White Man’s Burden, a phrase immortalized by English poet Rudyard Kipling as an excuse for European-American imperialism, was front and center Thursday morning at a RAND-sponsored discussion of Afghanistan in the Russell Senate Office Building.

The agenda was top-heavy with RAND speakers, and the thinking was decidedly “inside the box” — so much so, that I found myself repeating a verse from Kipling, who recognized the dangers of imperialism, to remind me of the real world:

It is not wise for the Christian white
To hustle the Asian brown;
For the Christian riles
And the Asian smiles
And weareth the Christian down.

At the end of the fight
Lies a tombstone white
With the name of the late deceased;

And the epitaph drear,
A fool lies here,
Who tried to hustle the East.

With a few notable exceptions, the RAND event offered conventional wisdom to a fare-thee-well. There was a certain poetic justice that President Carter’s national security adviser Zbigniew Brzezinski, who has chaired RAND’s Middle East Advisory Board, was chosen to keynote the proceedings.

As national security adviser under President Carter, Brzezinski thought it a good idea to mousetrap the Soviets into their own Vietnam debacle by baiting them into invading Afghanistan in 1979, the war that was the precursor to the great-power quagmire in Afghanistan now, three decades later.

On Thursday, Brzezinski disclosed that he had advised the Bush/Cheney administration to invade Afghanistan in 2001, but insisted that he told Defense Secretary Donald Rumsfeld that the U.S. military should not stay “as an alien force” once American objectives were achieved.

Exuding his customary confidence, Brzezinski first addressed — and ruled out — several “No’s,” the things that the U.S. must not do:

-Withdrawal is “not in the range of policy options.”
-The U.S. must not repeat the Soviet experience in going it alone, but rather must “use all our leverage” to make NATO’s commitment stick.
-The U.S. should not neglect the need to include “Islamic” groups in the coalition.

Brzezinski offered a much longer litany of “Yeses” — but his list was disappointingly bereft of new ideas. Indeed, it was notable only for his insistence that the U.S. ought to be more actively engaged in promoting a north-south pipeline through Afghanistan to the Indian Ocean. He said, for example, that India needs access to the resources of central Asia, an area especially rich in natural gas, as well as oil.

Without batting an eyelash, Brzezinski noted that within three months the war in Afghanistan will be the “longest war in U.S. history,” and warned that the United States could be “bogged down there for another decade or so.” At the same time, he argued, the world impact of an early U.S. departure “would be utterly devastating.”

Quagmire, anyone?

Questioned about growing opposition to the war, he conceded condescendingly that “public fatigue” is understandable, but expressed confidence that adoption of his recommended policies would be “persuasive” enough to turn public opinion around.

Outsiders Impinge

One must give RAND credit for inviting a few outsiders whose remarks came closer to reflecting reality. Former national intelligence officer for the Middle East, Paul Pillar, and Harvard professor Stephen Walt offered observations that, though eminently sensible, somehow seemed oddly out of step — “out of the box,” as we say in Washington.

Pillar asked if what the U.S. was doing in Afghanistan is enhancing the security of the American people. Are the costs justified, given the amount of change and the “direction of change” that U.S. policies can be realistically expected to produce?

Even if the U.S. and NATO effort is, as they say, “properly resourced,” large parts of Afghanistan will remain open to the Taliban, and perhaps al Qaeda — not to mention alternative locales like Somalia and Yemen.

And then there are the counterproductive consequences.

It is a given, said Pillar, that sending more troops perceived as occupation forces will — more than any other step — bring more and more recruits to the Taliban. As for the cost, Pillar cited the recent congressional testimony by Stephen Biddle, a defense policy fellow at the Council on Foreign Relations.

Biddle, though supportive of Gen. Stanley McChrystal’s counterinsurgency approach, said it would incur “Iraq-war-scale cost for three to five years.” Pillar asked if that kind of anticipated cost was worth what he suggested would be “at best, a slight reduction in the danger from terrorism.” Whether the game is worth the candle is, he said, the calculation that the President has to make.

No Alternative?

Stephen Walt picked up on Pillar’s themes, pleading for a realistic assessment of benefits against cost. As for U.S. troop casualties, 850 have already been killed. At a rate of 50 deaths a month, five more years would bring 3,000 dead — not to mention the many thousands more who have been wounded.

And the longer the United States stays, the more it looks like a foreign occupier and the more various Afghan factions are pushed together by giving them a common enemy. Plus, al Qaeda will have a safe haven — in Pakistan, Somalia, Yemen, even Europe — no matter the degree of “success” the U.S. achieves in Afghanistan.

Walt opined that it is the epitome of hubris for the U.S. to take on the monumental task of “social engineering” the 200 million people in Afghanistan and Pakistan, and that the chances of succeeding are “not great.” He questioned the disproportionate attention in resources directed toward Afghanistan when there is little reason to send more U.S. troops, except for the fact that there are already U.S. troops there with too much to handle.

Walt pointed also to a significant “opportunity cost” in the drain on President Barack Obama’s time, noting there are lots of other problems — domestic as well as foreign — that crave his attention.

Remarkably, among virtually all the speakers there was broad consensus that Brzezinski’s first No-No would prevail — that is, that no U.S. troop withdrawal will be in the cards. Walt put it bluntly, saying the President “painted himself into a corner” last spring and would probably not be able to change course to address “one of the world’s most intractable problems” in a sensible way. The Harvard professor predicted that in just a few years the Obama administration will look back with huge regret on how badly it erred.

The Cato Institute’s Christopher Preble took strong issue with the notion that “a country like ours would have no alternative” to escalation. He, too, asked if adding to the U.S. presence in Afghanistan is essential to U.S. national security. Or, Preble wondered, has the conflict there simply become an interest in itself — “that we must win this war because it is the war we are in?” He, too, gave U.S. policy makers a failing grade on “the cost-benefit test.”

RAND and the Establishment

The biggest surprise for me came in the remarks of well-respected diplomat James Dobbins, director of RAND’s International Security and Defense Policy Center. Dobbins provided no supporting data or reasoning to support what seemed — to me, at least — to be scare tactics. His words were the kind that a diplomat would use in selling a policy aimed at avoiding the worst.

Addressing the possibility of U.S. departure from Afghanistan, Dobbins predicted a long list of calamities: civil war (as if one isn’t already under way), the involvement not only of Pakistan but of Iran, Russia and China; millions of refugees, widespread disease, negative economic growth, increased extremism and use of Afghanistan for more terrorism.

As for the administration’s public posture, Dobbins pointed to a need to “expand the explanation for our presence in Afghanistan,” so that the rationale will appear more commensurate with an increased commitment” — read, more troops justified by more rhetorical flourishes.

Although Dobbins performed yeoman service, for example, in securing Iranian cooperation in setting up the Karzai government in Kabul, his experience with Asian insurgencies appears paper-thin. I was painfully reminded of this by his gratuitous remark that “in Vietnam we had neutralized the Viet Cong” (sic), and only when the North Vietnamese came into the fray, and the U.S. commitment slackened, did we lose that war.

With that faux history as background, it is less surprising that Dobbins would tout, as he did, the “Powell doctrine” of overwhelming force and advocate for a still deeper U.S. commitment in Afghanistan, to be accompanied by a more persuasive rationale to explain it.

Professor Walt pointed out that, applying the insurgent-to-population ratio Dobbins has used for Bosnia, 600,000 troops would be needed to defeat the insurgents in Afghanistan.

RAND veteran and former U.S. ambassador to Afghanistan, Zalmay Khalilzad, addressed the public perception problem regarding the Afghan war with unusual candor: “People don’t believe we know what we’re doing.” Still, endorsing the Brzezinski No-No dictum, Khalilzad said that “no serious person” would contemplate U.S. withdrawal thus enabling “extremism” to prevail.

Khalilzad argued for playing to U.S. strengths with a “purchasing power” approach — the United States comes up with the money to pay potential or actual insurgents more than they earn fighting for the Taliban. And he stressed that the U.S. needs to expand Afghan forces.

Speaking last, Senate Armed Services Committee Chairman Carl Levin, D-Michigan, also emphasized the need for building up Afghan forces, as the administration considers increasing the U.S. troop presence in Afghanistan. Levin spoke of the need for a 400,000-strong Afghan army and police force by 2012, trained by U.S. and NATO specialists.

Training the Indigenous: Panacea or Mirage?

I am reminded of what former CENTCOM commander, General John Abizaid, described to the Senate Armed Services Committee three years ago as a “major change” in the Iraq war — namely, new emphasis on training Iraqis.

The final returns are not yet in for Iraq, but in my experience this is almost always an unfruitful exercise, as many of us learned from Vietnam. Been there; done that; should have known that.

Three months after John Kennedy's death, Defense Secretary Robert McNamara sent President Lyndon Johnson a draft of a major speech McNamara planned to give on defense policy. What follows is a segment of an audiotape of a conversation between the two on Feb. 25, 1964:

Johnson: Your speech is good, but I wonder if you shouldn't find two minutes to devote to Vietnam.

McNamara: The problem is what to say about it.

Johnson: I'll tell you what to say about it. I would say we have a commitment to Vietnamese freedom. We could pull out there; the dominoes would fall and that part of the world would go to the Communists. ... Nobody really understands what is out there. ... Our purpose is to train [the South Vietnamese] people, and our training's going good.

McNamara: All right, sir.

But the Vietnamese training wasn't "going good.” Before long, half a million American troops were in Vietnam trying to save South Vietnam’s government.

It is a forlorn hope that unwelcome occupation troops can train indigenous soldiers and police to fight against their own brothers and sisters. That the British also seem to have forgotten these lessons, along with some of Kipling’s cautionary poetry about the risks of imperialism, is really no excuse.

If President Obama is depending on the RAND folks and embedded neo-con pundits like the Washington Post’s David Ignatius, we are in trouble. In Friday’s column Ignatius appeals for more troops “to continue the mission,” as the President and his advisers attempt to figure out what the mission should be.

As I sat at the RAND event on Thursday, I could not help wondering what would be the judgments of my former colleagues in the intelligence community on these key issues? Specifically, what might a National Intelligence Estimate on Prospects for Afghanistan say?

NIEs are the most authoritative genre of analytical product, embodying key judgments on important national security issues. They are coordinated throughout the 16-agency intelligence community and then signed by the Director of National Intelligence in his statutory capacity as chief intelligence adviser to the President.

An NIE can, and should, play an important role. An estimate on Iran’s nuclear program, for example, given to President George W. Bush in November 2007, helped derail plans by Vice President Dick Cheney and White House adviser Elliott Abrams for war on Iran. The most senior U.S. military officers had realized what a debacle that would be and insisted that this NIE’s key judgments be made public.

They anticipated, correctly, that public knowledge that Iran had stopped working on developing a nuclear warhead in 2003 (and had not resumed such work) would take the wind out of Cheney’s, Abrams’, and Israel’s sails. Bush and Cheney were not pleased; but the NIE helped stop the juggernaut toward war with Iran.

There’s Always an NIE, Right?

As one of the intelligence analysts watching Vietnam in the Sixties and Seventies, I worked on several of the NIEs produced before and during the war. All too many bore this title: “Probable Reactions to Various Courses of Action With Respect to North Vietnam.”

Typical of the kinds of question the President and his advisers wanted addressed: Can we seal off the Ho Chi Minh Trail by bombing it? If the U.S. were to introduce x thousand additional troops into South Vietnam, will Hanoi quit? Okay, how about xx thousand?

Our answers regularly earned us brickbats from the White House for not being “good team players.” But in those days we labored under a strong ethos dictating that we give it to policymakers straight, without fear or favor. We had career protection for doing that. And — truth be told — we often took a perverse delight in being the only show in town without a policy agenda.

Our judgments (the unwelcome ones, anyway) were pooh-poohed as negativism; and policymakers, of course, were in no way obliged to take them into account. The point is that they continued to be sought. Not even Lyndon Johnson, nor Richard Nixon, would be likely to decide on a significant escalation without seeking the best guess of the intelligence community as to how U.S. adversaries would likely react to this or that escalatory step.

Wrong: No NIE

Here’s the thing. Would you believe there is no current National Intelligence Estimate on Afghanistan? Rather, Generals David Petraeus and Stanley McChrystal are running the show, allowing professional intelligence analysts to be mostly straphangers at planning and strategy meetings.

CIA Director Panetta, a self-described “creature of Congress,” is not going to risk putting any senior military noses out of joint by objecting, and neither is his nominal boss, Director of National Intelligence Dennis Blair. And, sad to say, National Security Adviser James Jones, in deferring to the military, is serving President Obama just as poorly as Bush apparatchik Condoleezza Rice served President Bush.

How many “militants” are there in Afghanistan? How may “insurgents?” How do you draw a distinction between a militant and an insurgent? Could it be that these combatants are widely regarded, in many areas of Afghanistan, as resistance fighters? What would be the implications of that?

When the Military Does the Packaging

Forty-two years ago, my CIA analyst colleague Sam Adams was sent to Saigon to have it out with the Army intelligence officers working there for Gen. William Westmoreland. After several months of exhaustive analysis, Adams had connected a whole bunch of dots, so to speak, and concluded that there were more than twice as many Vietnamese Communists under arms as the Army would carry on its books.

Bewildered at first, Adams quickly learned that Westmoreland had instructed his intelligence staff to falsify intelligence on enemy strength, keeping the numbers low enough to promote an illusion of progress in the war. After a prolonged knock-down-drag-out fight, then-CIA Director Richard Helms decided to acquiesce in the Army’s arbitrary exclusion from its enemy aggregate total paramilitary and other armed elements numbering up to 300,000.

These categories had been included in previous estimates because they were a key part of the combat force of the Communists. The Adams/CIA best estimate was total Communist strength of 500,000. However, it was the doctored estimate that went to the President and his advisers in November 1967. That was just two months before the countrywide Communist Tet offensive in late January/early February 1968 proved — at great cost — that Adams figures were far more accurate than the Army’s.

Years later, when Adams and CBS told the story of this internal battle on “60 Minutes,” Westmoreland sued, giving Adams his day in court, literally. Subpoenaed documents and the testimony of Westmoreland’s own staff in Saigon established the accuracy of Adams’ charges, and Westmoreland withdrew his suit.

Yet, right up until his premature death at age 55, Sam Adams could not dispel the remorse he felt at not having gone public with his findings much earlier. He felt that, had he done so, the entire left half of the Vietnam memorial would not be there, because there would be no names to carve into the granite for those later years of the war.

Ellsberg’s Regret

In recent years, former Defense Department and RAND analyst Daniel Ellsberg also has expressed deep regret that he waited too long; that he did not give the press the “Pentagon Papers” history of the Vietnam War and its many deceptions until 1971.

What few people know is that a couple of patriotic truth-tellers, including Ellsberg, did reveal key facts about the war in the late Sixties, when they learned that the Johnson administration was working on plans to expand the ground war into Cambodia, Laos and right up to the Chinese border — perhaps even beyond.

In 1967, the beribboned, bemedaled Petraeus — sorry, I mean Westmoreland — addressed a joint session of Congress during which he congratulated himself on the “great progress” being made in the war. Congress was unaware that Westmoreland was on the verge of getting President Johnson to agree to sending 206,000 more troops for a widening of the war that threatened to bring China in as an active combatant.

Two key leaks to the New York Times helped put the kibosh on that escalation. The first, on March 10, 1968, revealed the 206,000 escalation figure; and the second, on March 19—by Ellsberg himself—disclosed the suppression of the CIA’s higher, accurate count of Vietnamese Communists under arms. On March 25, Johnson complained to a small gathering of confidants:

“The leaks to the New York Times hurt us. ... We have no support for the war. ... I would have given Westy the 206,000 men.”

I believe that President Obama wants to make the right decision regarding Afghanistan. For me, his poignant visit Thursday night to the U.S. Air Force Base at Dover, Delaware, to receive the coffins of 18 Americans recently killed in Afghanistan bespeaks an authentic desire to do the right thing and face into any political repercussions.

It is clear, at the same time, that he is under great military and political pressure to send more troops on what those of us who experienced Vietnam are convinced is a fool’s errand. And, sadly, his national security adviser and his intelligence chiefs seem to have gone AWOL.

For Intelligence Analyst Colleagues:

One clear lesson from what Ellsberg did in March 1968—not to mention the November 2007 NIE on Iran—is that patriotic truth telling, official or unofficial, can prevent wider wars. And so I address you all—both my erstwhile colleagues and newer analysts in the intelligence community:

Those of you working on Afghanistan and Pakistan have your own educated estimates of the prospects for success of various U.S. courses of action. If you have not been asked by now to prepare a National Intelligence Estimate, wait no longer. Keeping silent is not a responsible option.

The President should not be deprived of your views.

Perhaps it was serendipity (or maybe a reward for sitting through the entire RAND event Thursday morning), but that evening I was privileged to attend the Washington premier of an excellent documentary on Dan Ellsberg — “The Most Dangerous Man in America” — the sobriquet he earned from Henry Kissinger when Ellsberg gave the Pentagon Papers to the New York Times and other newspapers.

The film contained hard-to-watch footage of the war that took the lives of two-to-three million Vietnamese and 58,000 Americans—a very painful reminder. I was happy to see, though, that the film did pick up, from Ellsberg’s book Secrets, his decision to begin revealing important facts to the New York Times in early 1968 and help prevent a still more dangerous escalation and widening of the war in Vietnam.

Think about it, friends. And don’t look just at one another. Visualize instead all those young people from our country’s inner cities and small towns who form the pool for the de facto poverty draft that provides the bulk of U.S. troops sent off to bear the present-day White Man’s Burden.

You may be in a position to help give the President the wherewithal to resist pressure to escalate the war in Afghanistan. Let’s stop the Dover deliveries of the dead headed to tombstones white, with the names of the late deceased.


Quinty said...

"Here we go again," many Americans are saying to themselves. The atmosphere of deja vu is in the air. And this time the promise of mere military might won't convince a majority that the US will be victorious and will soon pull out. No one is even talking about the troops "being home for Christmas," as has happened in so many previous wars. Including one of the bloodiest, the First World War.

So we are pulling out of Iraq? And what will happen then? All out civil war? The violence has escalated in recent weeks. Is that temporary? Or revelatory of things to come? What did our presence accomplish there?

Unless the conspiracy theorists are right, and its oil, pipelines, hegemony, etc., motivating our presence in Afghanistan (I don't know) a long quagmire with much regrets following in coming years is much in the air.

It all seems much too familiar.

jazzolog said...

Sometimes when I review election results the morning after, even in an off-year, I feel despair get the better of me.

"If pigs could vote, the man with the slop bucket would be elected swineherd every time, no matter how much slaughtering he did on the side."

--- Orson Scott Card (1951- ) Novelist

jazzolog said...


Why don't church leaders forbid Catholics from joining the military with the same fervor they tell Catholics to stay away from abortion clinics?

- William Blum


"It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets."

- Voltaire


"In the struggle of Good against Evil, it's always the people who get killed."

- Eduardo Galeano

I grew up a few miles from a horse rendering plant. The place was on the way to my mother's girlhood home, so we drove past it often. The fragrance was even worse than the sulfur fumes from Lackawanna steel plants...which we had to drive by sometimes too. Maybe both steel and rendering plants are things of the past, but the stench remains strong in memory. The word "render" carries unpleasant connotations as a result.

So it has been that Republican attempts to decorate their torture policies didn't fool me for a second. Besides, I'm a word person and an old radio man...and I watch carefully how corporations and their Republicans frame media messages. Obviously they hire good word people. I've been impressed...and only wish that folks who first were drawn to words by poems and stories had been able to keep their dreams alive, rather than sink to the level of degradation necessary to come up with a phrase like "extraordinary rendition."

To me an extraordinary rendition would be Glenn Miller's version of Moonlight Serenade. "Rendition" and "rendering" are interesting words. Essentially to render means to give something back. A quality of vengeance has not been included, I think, until 9/11. Of course at the glue factory, horse parts were torn apart and melted down. Apparently this aspect of our foreign policy is a mix of all that. Extraordinary rendition is a brilliant description for torturing someone to death. Can any religion historians tell us what the Inquisition called such executions?

Amy Goodman's column Monday talks about Tortured Logic. There's a phrase with a nice ring to it too.

jazzolog said...

December 4, 12:11 PM, 2009

DOJ to the Rescue… of John Yoo
By Scott Horton

The Holder Justice Department has filed a sweeping amicus brief in the Padilla v. Yoo case before the Ninth Circuit, seeking to make absolute the immunity granted Justice Department lawyers who counsel torture, disappearings, and other crimes against humanity. The case was brought by Jose Padilla, who claims that he was tortured as the direct result of memoranda written by Yoo, now a law professor at Berkeley. At this stage, the case does not address the factual basis of Padilla’s claims, but documents that have been declassified by the Department of Justice make it clear that the charges have a firm basis in fact. Here’s the portion of the opinion authored by a lifelong Republican, Bush-appointed judge that the Justice Department found so objectionable:

Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct….

The Holder Justice Department insists that they are absolutely not responsible, and that they are free to act according to a far lower standard of conduct than that which governs Americans generally. Indeed, this has emerged as a sort of ignoble mantra for the Justice Department, uniting both the Bush and Obama administrations.

According to the allegations in the suit, Padilla’s extraordinary regimen of abuse was imposed only after John Yoo personally gave it a green light, knowing that the torture prescription awaited his say-so. The result was long-term physical and psychological damage. Yoo’s outlandish opinions have been rescinded, but the question remains: can a Justice Department lawyer be held to account for grossly incompetent and unethical work that results in severe physical harm? It’s long been a tenet of federal law that agents of the government who are responsible for torturing individuals may be held to account for their conduct. The Holder Justice Department has been working feverishly to overturn this law, at least as it applies to employees of the Justice Department. With the solid backing of Republican-appointed judges on the Second Circuit, they achieved a major breakthrough on the Second Circuit in the Maher Arar case. Now they’re peddling the same pap to the Ninth Circuit.

The Justice Department once argued that no doctrine of immunity could be invoked to protect a person who, under cover of law and the authority of office, engages in torture, conspiracy to torture, or the holding of individuals outside of access to justice for prolonged periods (“disappearings”). These arguments were made in cases brought before the Nuremberg and Tokyo tribunals, including United States v. Altstoetter and the Ministries cases—authorities which the brief filed by the Justice Department fails to note. Now the Justice Department argues that there are only three possible avenues for accountability of a Justice Department lawyer: internal review by the Department’s Office of Professional Responsibility and Office of Inspector General, bar disciplinary action, and criminal prosecution. It effectively boils down to the Justice Department saying that it alone will decide about the accountability of its staffers for wrongful conduct that damages others.

jazzolog said...

Moreover, the courses that the brief describes are a chimera. The Office of Professional Responsibility has investigated John Yoo’s abusive and unprofessional memo writing for five years. As of this morning, its findings still have not been released—notwithstanding a representation by the attorney general to the Senate Judiciary Committee that they would be made public before November was out. More generally, OPR rarely actually investigates even the most serious allegations of misconduct, and almost never actually recommends any form of discipline. The only exceptions occur when a federal judge becomes involved, insisting on action (and often not even then), or when the misconduct becomes a matter of public outrage sustained in major newspapers and broadcast media for years. The ABA Journal has correctly summarized the situation by calling OPR the Justice Department’s “roach motel”—“the cases go in, but nothing ever comes out.”

The brief’s reference to the Inspector General’s office is also absurd. As OIG notes, it does not even have jurisdiction to deal with legal professional staff at the Justice Department—that rests with OPR.

Next, the Department suggests that state bar associations can address these questions. As a matter of established practice, however, state bar associations do not take up cases involving Justice Department employees. They defer instead to the Justice Department to deal with them, choosing only to look at cases involving Justice Department lawyers when the DOJ asks them to do so. Bars also apply guild rules, and like the ancient guilds, don’t much like punishing their own.

Finally, there is the question of criminal accountability. In the face of actual criminal investigations, the DOJ has behaved usually like a criminal accused, and intent on obstruction, not like a law enforcement agency. Criminal investigations involving the conduct of Yoo and his fellow torture-memo writers are underway at this moment in a number of foreign jurisdictions, most notably including the two pending criminal cases in Spain. It’s noteworthy that the U.S. Justice Department, presented with letters rogatory from the Spanish court probing into the torture of Spanish citizens at Guantánamo and the role played by DOJ lawyers in this process, elected not to respond. Attorney General Holder traveled to Europe at the outset of his term, promising European justice officials a new era of cooperation. But in the first significant test case, he has continued the Bush-era cover-up of potentially criminal misconduct deep inside the Justice Department.

The Holder Justice Department’s brief can only be squared with prior DOJ arguments this way: foreign lawyers in foreign Justice Departments have no immunity and can be held accountable, but lawyers who work for us have absolute immunity from any meaningful form of accountability. The path to a renewal of the criminal misconduct of the Bush years is being prepared right now. And Obama Justice Department lawyers are doing the work.

Scott Horton is a New York attorney known for his work in human rights law and the law of armed conflict. He lectures at Columbia Law School.