Jihad

Obama's kinder, gentler foreign policy

Though much of the focus of Barack Obama's first six weeks in office has been on his trillion dollar economic stimulus and deficit-busting budget proposals, the administration has nonetheless given us some insight into the nation's new foreign policy. If you are someone who believes that the world remains a dangerous place, it is anything but comforting. Many who voted for Obama undoubtedly believed that some of his more radical foreign policy positions during the 2008 campaign were rhetoric designed to appeal to the left-wing base of the Democratic Party -- those who believe that the Iraq War was a grievous error and that the "war on terror" is a Bush construct designed to assert U.S. imperialism abroad and usurp civil rights at home. Unfortunately, his first month as president shows that Obama intends to be largely consistent with the promises he made during the campaign. His first order of business after taking office was to sign an executive order closing the detention facility at Guantanamo Bay, where a number of the most dangerous Al Qaeda terrorists -- including the mastermind of 9/11, Khalid Sheik Mohammed -- is now housed. He also banned the use of "enhanced interrogation" techniques, limiting our ability to question terrorist detainees to the strict rules of the Army Field Manual. In making these two decisions as a first order of his new Administration, Obama was making clear that he intends to place values -- specifically the democratic ideals of due process and human rights -- at the very forefront of U.S. foreign policy. In closing Guantanamo and banning forms of interrogation that the left views as torture, Obama said "Living our values doesn't make us weaker. It makes us safer, and it makes us stronger."

It is not a stretch to believe that those who are now formulating foreign policy in the Obama Administration believe that the importance of being true to our values warrants a substantial redefining of how America extends its power to the rest of the world. For generations, our foreign policy has been based on the concept of realism and "realpolitik" -- the notion that power should be projected on the basis of our national interest, and that power (as opposed to international law or the United Nations) is the principal currency in international affairs. Realpolitik is, above all else, a practical concept; since power considerations dominate, it often leads to choices that in hindsight seem less than principled. One example that liberals like to use is U.S. support for Saddam Hussein in the war against Iran -- just a decade before the U.S. itself went to war against the Iraqi army in the first Gulf War. The U.S. supported Iraq not because we thought that Saddam Hussein was the "good guy", but because he was seen as less dangerous than Iran, and a potential tool to overthrow the regime of the Ayatollah Khomeini.

Such "situational" principles drive liberals and idealists crazy, of course, because the left generally sees the world through a lens that doesn't lend itself to the pragmatic use of American power. Liberals have always been more idealistic about how the possibility of peace-through- negotiation. Power -- especially of the military variety -- should only be used in the most extreme cases of self defense, and then only as a last resort. And when we do use military force, we should do so in a way that is consistent with our values. Realpolitik is now valuespolitik.

Valuespolitik is entirely consistent with how Barack Obama views the world -- and appears now to be the underlying principle of our new foreign policy. At the center lies the promise of negotiation -- of finding some shared basis of interest and understanding that can lead to first engagement and then reconciliation. Here are a few examples:

-- In some of his first comments to the media as reported in the New York Times, Obama stated his "determination that the United States explore ways to engage directly with Iran", even as he confirmed Tehran is pursuing nuclear weapons and is supporting terrorist groups destabilizing Iraq and the Middle East. In this same article, Secretary of State Hillary Clinton is quoted as saying “(that) there is a clear opportunity for the Iranians to demonstrate some willingness to engage meaningfully with the international community", and stated that "there could be some form of direct communication between the United States and North Korea."

-- According to a recent piece by Claudia Rossett in Forbes, the President's hand-picked Special Representative to Afghanistan and Pakistan, Richard Holbrooke (has) "been talking about Iran's reach into Afghanistan not as part of the problem, but as part of the solution. Despite allegations, some by NATO officials, that Iran has been helping Taliban "extremists"--as Obama labels the terror-dedicated Taliban -- Holbrooke opined recently on an Afghan TV station that Iran (yes, the same Iran run by the totalitarian mullahs who applaud Palestinian suicide-bombers, jail and torture dissident bloggers, and execute children and homosexuals) has a "legitimate role to play in this region, as do all of Afghanistan's neighbors."

-- Rossett also notes in her Forbes article that despite overwhelming evidence of the Iranian-backed terror nest that Gaza has become, the U.S. seems less interested in ending the terrorist reign of Hamas than in bankrolling its territorial base. “Reports earlier this week, citing an unnamed U.S. official, said Secretary of State Hillary Clinton plans to attend a funding conference in Cairo next week where she will pledge $900 million in U.S. aid for Gaza. At a Tuesday press briefing, a State Department spokesman confirmed that while details, including the exact amount, are still being worked out, a whopping pledge is indeed in the offing: It'll be, you know, several hundred million."

The pattern that emerges from these examples is that valuespolitik assumes that interests between the U.S. and the rest of the world can somehow be aligned in a way that will result in a more secure geopolitical situation – and that we can achieve this while not compromising our own democratic values. In Obama's view, valuespolitik is achieved principally through direct engagement and negotiation. Never mind, of course, that the United States and Europe have been negotiating with Iran for the past several years on their nuclear weapons program, offering all manner of economic incentives to encourage the Iranians to join the peaceful international community. The result of all this talk has been that the Iranians are now closer than ever to achieving both a nuclear warhead and the means of delivering it.

The failure of past efforts at negotiation doesn't sway our new president, however. Barack Obama genuinely believes that he is the one the international community has been waiting for; that his unique ability to communicate -- and the power that Clinton, Holbrooke and others will have speaking on his behalf -- can bring Iran, North Korea and even Hamas in from the cold. Some would call such a belief naive, others would call it hubris. I would call it both. But whatever you call it, this strategy lies at the center of the Obama foreign policy.

Thinking about Obama's foreign policy reminds me of an old story about Lyndon Johnson during the Vietnam War. LBJ was the consummate deal maker and believed that given an opportunity, there wasn't anyone he couldn't convince to see things his way. As the situation in Vietnam deteriorated and protests began heating up at home, LBJ offered to Ho Chi Minh a "Great Society" program for Vietnam, using American dollars to give the Vietnamese people food, shelter and prosperity. “A TVA for the Mekong Delta” he liked to say. It was all part of a fundamental belief that everyone has a price. Jack Valenti, a Johnson aide once recounted LBJ saying to him: "If I could just sit in a room with Ho Chi Minh and talk to him, I think we could cut a deal."

What Johnson failed to realize is that Ho Chi Minh was never going to accept a permanent partition of his country into North and South, and that North Vietnam would never cease their struggle for a unified, independent Vietnam. It just wasn't open to negotiation.

One guesses that this would be an instructive lesson for Barack Obama in dealing with Iran and other Islamic fundamentalists. The goal of Iran is the destruction of Israel and the West. The goal of Al Qaeda and Islamic radicals is the death of all non-believers and the establishment of a world caliphate based on Islamic law. These are not deal points to be negotiated away. These are fundamental beliefs that defy bargaining. No focus on shared values can lead to success, for we have no values in common.

And this is the core weakness of valuespolitik. While negotiation can achieve certain gains on the margins, it has the effect of blinding our policy to the true, non-negotiable threats that face us. And we pursue it at our own peril.

BHO retreats further on detainee issue

Here's more on the issue of detainees in the Global War on Terror, the story that just won’t die. After railing for years against the Bush Administration policies on detention of enemy combatants captured during operations in Afghanistan and other battlegrounds of the War on Terror (which they've quit calling by that name), the Obama Administration is making a series of stunning reversals from overheated campaign rhetoric to the policies applied when actually governing. Undoubtedly, you’re all “shocked, shocked” that this is so… The first development, buried so deep in the news that it didn’t even make the Denver papers was the release of an official report commissioned by the Obama administration on the treatment of enemy combatants held at the Guantanamo Bay detention facility. An exhaustive investigation concludes that

“...the Guantanamo Bay prison meets the standard for humane treatment laid out in the Geneva Conventions, according to a report for President Barack Obama, who has ordered the terrorist detention facility closed within a year.” …

“The report found the camp to be in compliance with the Geneva Conventions Common Article 3, the international rules that require the humane treatment of prisoners taken in unconventional armed conflicts, like the war on terrorism. The camp’s controversial force-feeding of prisoners on hunger strikes was also found to be compliant with the Geneva guidelines, a second government official confirmed.”

As a presidential candidate, Obama criticized the detention center - and almost immediately upon taking office, he issued an Executive Order to close the facility at the U.S. naval base in Cuba within a year. Perhaps a bit too hasty? Clearly, this report brings into question the underlying basis for that order.

Thus it's Campaign Rhetoric: 0, Facts: 1

So what to do with the detainees?

“Attorney General Eric Holder, meanwhile, named a top federal prosecutor, Matthew Olsen, as executive director of Obama’s Guantanamo Detainee Review Task Force, which will recommend where to send each detainee. Obama has ordered the task force to consider whether to transfer, release or prosecute the detainees, or figure out some other ‘lawful means for disposition’ if none of those options is viable.”

As noted in my original post on this topic, other “lawful means for disposition” does NOT include Ritter’s proposal to bring them as a group to Colorado’s SuperMax penitentiary - all protestations and obfuscations of self-proclaimed media “watchdog” groups to the contrary.

The second development in this issue - which has received a bit more media attention - is Obama’s reversal from his campaign rhetoric critical of the previous administration’s “extralegal” detention of enemy combatants. Obama policy NOW is in complete agreement with Bush administration policies and legal arguments:

“… the Obama Justice Department has told a federal court that detainees currently being held by the United States at Bagram Air Base in Afghanistan are unlawful combatants not subject to the Geneva Conventions and can be held without charge for as long as the conflict in Afghanistan continues. The position is exactly the same one taken by the Bush Administration.”

And now it's Campaign Rhetoric: 0, Facts: 2

On this issue, at least, the Obama Administration is discovering the difference between campaigning and governing. Nothing like learning on the job… As I predicted on the Backbone Radio show on February 8th (5pm segment), the Democrats (aided and abetted by the Liberal Establishment Mass Media, or LEMMings) are now anxious to sweep this issue under the rug, now that they can no longer use it as a rhetorical club with which to beat up a Republican administration. In fact, even Obama’s Executive Order to close Gitmo could easily be reversed, once the issue is no longer in the media spotlight. Wouldn’t THAT be an interesting development a year or so from now?

Action items - how YOU can get involved:

House Republicans recently introduced legislation to prohibit federal courts from ordering the release or transfer of Gitmo detainees into the U.S. The Enemy Combatant Detention Review Act (HR 630) establishes clear rules regarding the detention of known terrorists.

Senator James Inhofe also introduced the Guantanamo Bay Detention Facility Safe Closure Act of 2009 (S370) that will PROHIBIT the United States government from using ANY funds to transfer detainees from Gitmo onto United States soil and PROHIBIT the United States from using ANY funds to construct a facility on U.S. soil to house these detainees.

Contact your congressional representative or senator in Washington, DC and contact Governor Ritter in Colorado and let them know what YOU think about these policies.

Power to the People!

With a whimper?

If anyone has ever wondered how our democracy will end, it is now clear. Step 1, flood the country with millions of illegal immigrants that all vote Democratic. For example, consider this. Succeeding steps and symptoms would include the following:

o Politically, the country would become a one party State. Elections would become the rubber stamp variety, the Saddam Hussein 90% approval sort, with no real opposition.

o The center-right middle class would be disenfranchised and impoverished with inexorable governmental wealth transference taxation.

o The "middle class" would disappear, to be replaced by one large "Government Dependent Class".

* With absolute electoral plurality, Presidential term limits can be removed. The young President Obama would be President for life. (This has been seriously proposed by a US Congressman, and Chavez in Venezuela recently won such a plebiscite.)

* The cult of personality surrounding President Obama would transform America into a Peronista-style quasi-dictatorship

* Continually manufactured "Crises" will mobilize and manipulate the people, making the Government all important and all-powerful. Non governmental organizations would fade, including private charities, private businesses, rotary clubs, and churches.

The unknown underlayment in this scenario is the role of Islam. Islam is waging Jihad against us to subjugate us to Shari'a Law. The Progressives are currently allied with them to pull down the center-right middle class, seemingly ignoring the Jihadist threat. Ideologically, there has to be an eventual mutual betrayal.

Still no jihadists to our prisons, Bill

Colorado Media Matters can’t get the facts straight on the Guantanamo detainees. That must be why they go off on tangents from the key topic of discussion: namely, Governor Ritter’s proposal to bring the Guantanamo Bay detainees to Colorado’s SuperMax penitentiary in clear violation of the laws of war (Geneva Conventions III, Article 22, as referenced in my earlier post). Now we have Bill Menezes' 2/9 commentary on Colorado Media Matters (hereafter CMM) about my 2/8 conversation on Backbone Radio with John Andrews; on air I'm Matt Stark. This thing is so full of errors, misstatements, misrepresentations, and outright falsehoods that it’s hard to know where to begin; but I’ll attempt to tackle them in the order presented.

In the summary statement and again in the article’s second paragraph, CMM attempts to characterize the fact that "the vast majority of the people detained" at Guantánamo Bay, Cuba, do not "meet the qualifications to get the status and rights of a prisoner of war" as an “unsourced claim” or that I “did not specify my criteria” for this assertion. That characterization is false; I repeatedly referenced the Geneva Conventions as the source. Since the talk radio format does not lend itself to footnotes, here is the specific section and definition of qualifications necessary to gain the rights and status, under the Geneva Conventions, of a prisoner of war:

Article 4 A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Note the key provisions of “carrying arms openly” and “conducting operations in accordance with the laws and customs of war” – conditions which the detainees at Guantanamo failed to meet, leading to their characterization under international law as “unlawful combatants” and therefore NOT qualifying for the full status and rights of “prisoners of war” under the Geneva Conventions. The term “unlawful combatant”, although not spelled out in Article 4, has been in use for over a century in legal literature, military manuals, and case law:

An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.

The rights and status of “unlawful combatants” has been somewhat of a legal grey area; opinion (and international legal precedent) varies from summary execution as spies and saboteurs (ex parte Quirin or more recently the 1976 Luanda trials) to treatment as EPWs under the Geneva Conventions.

The Bush Administration attempted to navigate a fine line between the extremes, refusing to concede the detainees legal status as prisoners of war but directing that they be treated in accordance with the Geneva Conventions, beginning with the 13 November 2001 presidential order on Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." The order also specifies that the detainees are to be treated humanely, in accordance with the Geneva Conventions, while rejecting their status as prisoners of war.

Note that this policy (which pre-dates the Supreme Court's Hamdan decision by almost 5 years) is in accord with international law:

The Geneva Conventions apply in wars between two or more states. Article 5 of the GCIII states that the status of a detainee may be determined by a "competent tribunal." Until such time, he is to be treated as a prisoner of war.[2] After a "competent tribunal" has determined his status, the "Detaining Power" may choose to accord the detained unlawful combatant the rights and privileges of a POW, as described in the Third Geneva Convention, but is not required to do so. An unlawful combatant who is not a national of a neutral State, and who is not a national of a co-belligerent State, retains rights and privileges under the Fourth Geneva Convention so that he must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial."[3]

By 29 March 2005, all detainees at the Guantanamo Bay Naval Base had received hearings before Combatant Status Review Tribunals. The hearings resulted in the release of 38 detainees, and confirmed the enemy combatant status of 520 detainees [39]. These remaining detainees are subject to continued imprisonment (“for the duration of hostilities”) and, where violations of the laws and customs of war have been asserted, a “fair and regular trial” before military commissions.

CMM launches into a long tangent about the process by which detainees may (or may not) be tried for criminal acts by military commissions. They cite the 2006 Hamdan case which, as Menezes correctly points out (hey, even a stopped clock is right twice a day) overturned the administration’s process for trying detainees by military commissions, as it existed at the time. What he conveniently fails to inform the reader, however, is that the ruling was narrowly based on the issue of executive authority – “the commissions were unauthorized by federal statute” - and threw the matter to the legislative branch to establish military commissions by statute – which Congress did, in the Military Commissions Act of 2006. http://thomas.loc.gov/cgi-bin/bdquery/z?d109:S.3930:

The United States Military Commissions Act of 2006[1], also known as HR-6166, was an Act of Congress[2] signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v. Rumsfeld,[3] the Act's stated purpose was "To authorize trial by military commission for violations of the law of war, and for other purposes."[4]

Hamdan’s ruling that the Bush Administration military commissions violated Common Article 3 of the Geneva Conventions was also narrowly predicated on the process by which military commissions were established, holding that executive order was not sufficient to establish a “regularly constituted court”:

The passing of sentences must also be pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Article 3's protections exist even though no one is classified as a prisoner of war.

After Congress acted, the “technicalities” of the Hamdan decision “were resolved so that enemy combatants and unlawful enemy combatants may be tried under the Military Commissions Act of 2006.”

None of this – neither the Hamdan case, nor the Military Commissions Act, altered the basic underlying fact that the “unlawful combatants” detained at Gitmo are NOT, strictly speaking, qualified for the full status and rights of prisoners of war under the Geneva Conventions – as noted above.

Finally, after a long detour through tangential issues apparently designed to muddy the waters, CMM returns to the issue at hand. I give them credit for publishing the full text of what I said on the radio (allowing readers/listeners to draw their own conclusions), despite a few errors of transcription (that’s “in a block or en masse” not “a big block of Hamas”, for example).

Curiously enough, despite providing both the text and audio of the segment, Menezes STILL does not address the core issue at stake. Despite the theoretical existence of a limited exception to the general rule, as noted in my earlier post (here), the “internment of prisoners of war in [p.183] penitentiaries is in principle prohibited.” In the 60 years since adoption of the Geneva Conventions, it has (to my knowledge) NEVER occurred – certainly not in this country. Governor Ritter’s proposal, and Menezes defense of it, thus fly in the face of 6 decades of legal precedent and the norms of international law. How can Ritter (and Menezes) make the case that this is a good idea?

Summary of CMM’s claims vs. fact:

CLAIM: assertion that Gitmo detainees do not qualify as prisoners of war (POWs) under Geneva Conventions as “unsourced.”

FALSE. Geneva Conventions cited as source both on-air, and on posts.(Article 4 of GCIII)

CLAIM: “U.S. Supreme Court ruling in June 2006 found that the administration's military commissions created to try Guantánamo detainees violated the Geneva Conventions.”

Partially true, but misleading: Hamdan ruling narrowly stated that military commissions were unauthorized by statute; subsequently addressed by Congress with Military Commissions Act of 2006, codifying military commissions into U.S. law. Military commissions under the statute DO meet conditions prescribed by both U.S. and international law (incl. Geneva Conventions).

CLAIM: Hamdan 2006 “forced” the Bush Administration to provide humane treatment of captured combatants.

FALSE. Administration policy in existence since 2001 (Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism) specified humane treatment of detainees

CLAIM: The exception IS the rule. CMM states that since an exception to the “blanket prohibition” on interning prisoners in civilian penitentiaries exists, therefore all prisoners may be so treated, without regard to the particulars of their situation or “the interest of the prisoners themselves.”

FALSE. For the exception to apply, a case MUST be made that internment in a civilian penitentiary is in the interest of a specific prisoner in a particular case. The prohibition IS supposed to be a general one, as I pointed out in an earlier post:

“Internment of prisoners of war in [p.183] penitentiaries is in principle prohibited because of the painful psychological impressions which such places might create for prisoners of war.” http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=375&t=com

So to conclude: The fact remains that moving detainees from Guantanamo to a civilian penitentiary as a group (en masse; not “a block of Hamas”) is in violation of international law. Bill Ritter, scofflaw?

No jihadists to Supermax, continued

Seems I hit a nerve with my post about Gov. Ritter's collision with international law if Gitmo prisoners are moved to Colorado SuperMax. Indignant comments by Bill Menezes on this site and at PoliticsWest.com claimed I'm all wet. But his objections shatter on the clear text of the Geneva Conventions and relevant case law. His attempt to obfuscate salient facts with irrelevant minutiae fails the test of common sense, as well as established national and international legal precedent.

As mentioned in my original post, the salient fact is the prohibition on internment of combatant detainees (both actual prisoners of war and “unlawful combatants” – more on that later) in civilian penitentiaries.

In the operative provision, Menezes puts undue weight on the qualifying language before the comma: "Except in particular cases which are justified by the interest of the prisoners themselves, they shall not be interned in penitentiaries."

Common sense will inform the reader that the “particular cases” exception to the general rule is applied to individual detainees who are, for whatever reason (generally certain medical conditions, threats from fellow prisoners, or conviction of a civil crime in addition to their combatant detention status) better served or cared for in a civilian facility. Note that this exception is expressly in the interest of the prisoners themselves, not for the convenience or political benefit of the detaining power.

However, since common sense appears to be in general short supply, there is also an established body of case law and the commentary of the International Committee of the Red Cross (ICRC) that applies:

“Internment of prisoners of war in [p.183] penitentiaries is in principle prohibited because of the painful psychological impressions which such places might create for prisoners of war.” Citation here.

So in summary: The facts of international law and treaty (Geneva Convention III Relative to the Treatment of Prisoners of War) and our obligations under those laws (and U.S. statute) are clear: persons falling under military jurisdiction as prisoners (irrespective of their combatant status) are NOT to be detained in civilian penitentiaries as a matter of policy.

Some exceptions MAY be made on a case-by-case basis, in the interest of the prisoners themselves, but in practice and precedent this is applied VERY restrictively. Ergo, Governor Ritter’s proposal to bring detainees from Guantanamo en masse to Colorado’s civilian SuperMax prison would in fact violate international law and our treaty obligations.

PS - The non-functioning link correctly pointed out by Bill in the original post has now been corrected. We apologize for the typo. The link goes to the Yale University Law Library’s “Avalon Project” – a superb resource and reference for documents on international law.