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Unimaginable Atrocities: Six Questions for William Schabas

William Schabas

A successfully completed prosecution in the International Criminal Court, new demands for investigations into atrocities in Syria, ongoing issues surrounding crimes committed by American officials during the Bush-era “war on terror”—international criminal-law issues are steadily topical. Canadian scholar William Schabas, now a professor at Middlesex University in London, is one of the world’s leading writers and speakers on the subject. I put six questions to him about his new book, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals.

1. Just weeks ago, the International Criminal Court handed down its first judgment, convicting Thomas Lubanga of crimes relating to the recruitment and direction of child-soldiers in the civil war in the Democratic Republic of the Congo. The case was at once hailed as a triumph and condemned as a demonstration of the incompetence and inefficiency of the ICC. Who was right?

Both are right. A permanent international criminal court dealing with alleged perpetrators of massive human rights abuses has been a dream for decades. It promises universality, and therefore attempts to address the double standards that have troubled international justice in the past, whereby powerful individuals in strong countries go unpunished unless they have the misfortune to lose a war. A verdict in its first trial is a milestone for the court. Meanwhile, new member states continue to join up. Even the Security Council showed its confidence in the institution when it adopted a unanimous resolution, in February 2011, providing authority to prosecute the situation in Libya. So the wind is still in the court’s sails, even if its performance has been rather lackluster.

The first trial revealed serious flaws. It took six years, from arrest to verdict, for what is surely one of the simpler cases to come before any international criminal trial. The Nuremberg trial, by contrast, was over and done with in slightly more than a year. The first trials at the Yugoslavia and Rwanda tribunals, during the 1990s, took about two years or so.

The painfully protracted process at the International Criminal Court has been ascribed by some to its more elaborate procedural regime, much of which is said to enhance the rights of the defence. But justice delayed is also justice denied. Nobody should wait six years in jail for their trial to take place.

The Lubanga trial was nearly aborted on two occasions. In their verdict, the judges blamed the incompetence of the prosecutor, who had been cavalier in his duty to inform the defence about the existence of some of the evidence.

2. In military commissions convening at Guantánamo, the United States is charging a number of prisoners with crimes defined by Congress in the Military Commissions Act of 2006—but the conduct in question invariably occurred long before the legislation declaring it a crime. The problem of nullum crimen sine lege seems a constant in international criminal law. Is there anything particularly challenging about the retroactive charging of crimes by the American government at Guantánamo?

It isn’t a violation of the rule against retroactive crimes (nullum crimen sine lege) to actually define offences after they have been committed, providing that they were in substance recognized as crimes under international law at the time of their commission. Human rights jurisprudence does not insist on technical codification, providing that when the act was perpetrated, it was reasonable for the accused person to know that the act was prohibited.

Although the military commissions have many serious flaws, I don’t think retroactive prosecution is much of an issue. By and large, the commissions deal with war crimes for which we have recognized standards dating back many decades, even centuries. Four justices of the Supreme Court said, in Hamdan v. Rumsfeld, that conspiracy had not previously been a crime punishable by military commissions. But that’s not the same thing as saying it was not a crime at all.

3. In the theory of domestic criminal justice, selective prosecution is often identified as a weakness that undermines the legitimacy of the system. But you write that in international criminal practice it is a constant to which we need to reconcile ourselves. Why is that so?

Selective prosecution, and selective law enforcement more generally, may still afflict our domestic justice systems. But it is condemned as a breach of everyone’s right to equal protection of the law. We would never accept a government that prosecutes serious crimes such as murder and rape in one part of a city or a state while simply ignoring other communities and neighborhoods. Our systems are imperfect, but our expectations are clear. Where a national justice system fails to deliver a reasonable level of consistent and universal justice, its legitimacy is terribly undermined.

The problem at the international level is that courts can never address more than a tiny handful of deserving cases. After a decade of operation, the International Criminal Court is proceeding against fewer than a dozen defendants. Given the costs of trials and their length, and given the size of the institution, it is impossible to expect much more. By its very nature, the International Criminal Court must be selective. That means it needs convincing, reliable criteria and an acceptable methodology for such selectivity. It doesn’t have this.

The standard answer to this complaint is that the International Criminal Court has an independent prosecutor, who is immune from political concerns. Many believed such a model would free international justice from the domination of the United Nations Security Council. That has proven to be a myth. The prosecutor has never strayed outside the comfort zone of the Security Council’s permanent members, focusing instead on places like Darfur and Libya, and steering clear of areas like Afghanistan, Iraq, and Palestine. Nowhere else at the international level do we have a single individual with the authority to set the priorities of such an institution.

The fear that an international court would be dominated by the Security Council is legitimate. But the solution does not seem to be handing over the power to set the court’s priorities to an unaccountable individual.

4. One of the biggest challenges in enforcing the laws of war is when nations cloak their officials in immunity. American federal courts have recently concluded that immunity doctrines block claims against U.S. officials and their contractors that are predicated on torture, official cruelty, and disappearances. Just a few days ago, the Ninth Circuit overturned a district court ruling in Padilla v. Yoo, finding that torture-memo author John Yoo had immunity from claims linking him to the torture of Guantánamo prisoner José Padilla. What do you think of the Ninth Circuit’s reasoning? Do judges risk making themselves into accomplices under international-law norms when they rush to protect war criminals with immunity?

The recent decision holds that John Yoo cannot be sued because although today the practices to which he gave a blessing are acknowledged as torture, this was allegedly not beyond dispute between 2001 and 2003, when he gave his advice to the government. There is a lot of sophistry in the decision. The best the judges can provide in support is a 1978 decision of the European Court of Human Rights describing certain repulsive techniques of abuse as “inhuman or degrading treatment” rather than as torture. The decision has a smell of the argument that Nazi judges and prosecutors invoked at Nuremberg when they were charged with crimes against humanity for, in effect, applying the law. They were convicted by an American military tribunal following a trial made famous in the Abby Mann play and Stanley Kramer film Judgment at Nuremberg. The standard applied by American judges then was whether the law being applied was manifestly unlawful. The torture memos easily fail that test.

Immunity is a dangerous concept because it encourages the amorality of certain judges and policy-makers, including those who counseled the Bush Administration. Like the Nazi magistrates, they needed to ask if the treatments they were promoting were manifestly unlawful. Whether the yardstick is the Eighth Amendment to the Constitution (“cruel and unusual punishment”) or Article 5 of the Universal Declaration of Human Rights (“torture and cruel, inhuman or degrading treatment or punishment”) makes no difference.

5. In the past year, the United States, while declining to join or offer direct support to the ICC, has sought to enlist the ICC as a foreign-policy tool—pressing for the prosecution of Qaddafi and his inner circle, for criminal charges in Sudan and Kenya, and now in Syria against the Assad regime. Is this fresh wind in the ICC’s sails or a challenge to its credibility?

Although it is not going to join the court anytime soon, the United States has become a keen supporter of its activities. That is because the court’s behavior in its early years convinced Washington that none of its vital interests were threatened. This is mainly the achievement of the court’s prosecutor, Luis Moreno-Ocampo. He has quietly provided assurances to the United States government (as some WikiLeaks documents demonstrated) while at the same time refusing to investigate serious violations perpetrated in places like Iraq and Gaza.

Those who see U.S. support as crucial to the prosperity of the court are delighted. But there is a price to pay. This is a bit of a zero-sum game. The more enthusiastic the United States becomes, the more lukewarm support for the court becomes in other parts of the world, particularly Africa.

6. The crime of genocide, which sits at the heart of your book, has become a sore point for many international criminal-law experts, who argue that the label is too frequently abused and difficult to invoke properly. They urge us to avoid its use and instead speak of “atrocity crimes.” Is this concern well-founded?

Genocide is a word with great rhetorical power, as former secretary of state Madeleine Albright and former secretary of defense William Cohen noted in a 2008 report. They criticized academic lawyers like myself for insisting upon precise definitions, arguing that such pedantry inhibited mobilization of a robust response to atrocities.

But there is an agenda at work in this blurring of the lines. Albright and Cohen were promoting a message of intervention, including military intervention, to prevent atrocity crimes. That’s fine, providing there is general agreement at the international level, consistent with the Charter of the United Nations. Their idea was that even if international consensus were absent, it would be acceptable to send in the Marines, because “genocide” needs to be prevented. They wanted to redefine genocide so it would cover a much broader range of atrocities and human rights violations. In practice, they wanted a blank check for unilateral military intervention on the pretext of preventing humanitarian disasters.

Columbia Study Suggests Texas Executed an Innocent Man

British comedian Sacha Baron Cohen, appearing in character as Admiral General Haffaz Aladeen to promote his new film, The Dictator, has been working in lines about the double standards of American human rights assessments. “What in Wadiya you call genocide,” he says, referring to the dictator’s fictitious Arab homeland, “in Texas you call the justice system.” Texas criminal justice may not amount to genocide, but it does misfire with alarming frequency, and claims innocent lives in the process.

Since 1982, when Texas resumed judicial killings following a moratorium during the Sixties, the state has executed 482 people—four times the number of the next most aggressive state. Moreover, amid the rough-and-tumble of Texas’s right-leaning political culture, a candidate’s willingness to authorize large numbers of judicial killings and his distaste for clemency and pardon reviews has become a sine qua non for holding the state’s governorship—which has in turn become an important launching pad for G.O.P. presidential candidates, particularly since Texas is the most populous predictably Republican state.

Now, the Columbia Human Rights Law Review has published a book-length study by Columbia law faculty and students exhaustively examining one of those executions and concluding that Texas very likely executed the wrong man. The study, titled Los Tocayos Carlos (The Carlos Look-alikes), goes beyond vindication of the executed man to identify the actual perpetrator of the crime, backed by a convincing stream of evidence.

On February 4, 1983, Texas prosecutors charged Carlos DeLuna with the knifing murder of convenience-store attendant Wanda Lopez in Corpus Christi. DeLuna was put on trial and convicted. Texas appeals courts sustained the conviction in a rapid-fire series of decisions. A last-minute appeal to Texas governor Bill Clements for clemency went nowhere after DeLuna’s lawyer, Kristen Weaver, told the governor’s counsel that this was a “case where guilt was clear and obvious.” In December 1989, DeLuna was executed by lethal injection at the state penitentiary in Huntsville.

A team of Columbia law students led by professor James S. Liebman started probing the DeLuna case in 2003 after surveying past Texas cases for convictions in which eyewitness identifications played an essential role. Once viewed as a key indicator of a valid conviction, eyewitness identifications are increasingly being viewed by psychologists and criminal-justice scholars as a weak link in the system. DeLuna had claimed during his defense that a “look-alike Carlos” actually committed the crime—a claim that prosecutors and reporters dismissed, and that wasn’t even seriously followed up on by his own counsel. Yet a Columbia investigator’s visit to Corpus Christi quickly turned up astonishing evidence: a woman who knew both Carloses and who had heard a story, handed down in family accounts, in which the other Carlos bragged about how he had made his double take the fall for a homicide. The story of this other Carlos, Carlos Hernandez, quickly fell into place, as the Columbia team uncovered evidence and details corroborating DeLuna’s account. Without drawing formal conclusions, the study suggests that Texas prosecuted, convicted, and executed the wrong man. The likely murderer, Carlos Hernandez, died of cirrhosis of the liver in May 1999 while he was in prison for narcotics charges.

“One of the most disturbing things about the DeLuna case is that it was not a special or notorious case,” Liebman told me in an interview. “Everyone ignored it because it was so routine, because the convicted man’s guilt seemed so clear, because his story seemed so weak.” Liebman notes that even as DeLuna was sent to his death by a prosecutor who derided his defense as a “phantom,” a second prosecutor sat silently by in the courtroom, knowing that there really was a Carlos Hernandez and that he matched DeLuna’s description. This second prosecutor had investigated Hernandez three years earlier for another knifing murder of a Hispanic woman. The Columbia investigation also found that prosecutors had obtained and examined Hernandez’s rap sheet—in other words, they had misled the jury about the “phantom,” making a false argument that led to DeLuna’s conviction and execution.

Texas police also had a reason to deflect attention from Hernandez—he was likely working for them as an informant. Indeed, the Columbia report documents a number of serious crimes in which Hernandez was implicated and inexplicably escaped charges, suggesting that his relationship with local law enforcement might have been deep and complex.

Liebman also believes ethnicity might have played a role in the miscarriage of justice, in two different ways. “Both the defendant and the victim were Latino and not important persons in the eyes of the authorities,” he told me. “Lopez was victimized twice—the first time when she was knifed, and the second time when police and prosecutors undertook a shoddy investigation and pushed to convict an innocent man.” Did Texas execute an innocent man, I asked? “All of us who worked on the project believe that it did.”

Blocking Pardons at Justice

ProPublica’s Dafna Linzer continues her examination of the federal pardons process with a piece, excerpted in Monday’s Washington Post, that contrasts two pardon candidates. Both cases are the sort of victimless drug offenses that clog the federal detentions system. One involves a star athlete with no prior criminal record, and a prosecutor’s office and judge who favored immediate commutation of the sentence. The athlete was present at a drug sale, and he introduced the parties to one another, for which he received a gratuity from the dealer. Though such offenses are theoretically prosecutable, this very rarely happens.

This pardon candidate is black; he was sentenced to three lifetime terms in prison. The other candidate is on his fourth conviction for drug trafficking, this time as a major meth dealer. He refused to cooperate with prosecutors, who strongly opposed his release. But he had the backing of politically connected family and friends, including some well-positioned Republican office holders. Moreover, he was white. Both files landed on the desk of President George W. Bush on the same day, December 23, 2008. Can you guess which request he granted? That would be the politically connected white man, Reed Raymond Prior. The black man, Clarence Aaron, a former linebacker at Southern University in Baton Rouge, Louisiana, had his request rejected.

The injustice here will be obvious even to casual reviewers of the cases. But Linzer goes further, looking into the particular role that the Justice Department itself plays in this hideously unfair, suspiciously racist, and corrupt process. She sheds some light on the secretive manner in which the DOJ official in charge of pardons, Ronald Rodgers, goes about his job—painting an unflattering portrait of institutional lethargy and conflict of interest. As Linzer notes, the judge and others close to the case immediately saw the injustice of Aaron’s sentence and pressed for a pardon, which resulted in a submission to Rodgers. Not only did Rodgers not follow their recommendation, he suppressed their views so the White House wouldn’t learn about them:

[T]he George W. Bush Administration, in its final year in office, never knew the full extent of their views, which were compiled in a confidential Justice Department review, and Aaron’s application was denied, according to an examination of the case by ProPublica based on interviews with participants and internal records.

That Aaron joined the long line of rejected applicants illuminates the extraordinary, secretive powers wielded by the Office of the Pardon Attorney, the branch of the Justice Department that reviews commutation requests. Records show that Ronald Rodgers, the current pardon attorney, left out critical information in recommending that the White House deny Aaron’s application. In a confidential note to a White House lawyer, Rodgers failed to accurately convey the views of the prosecutor and judge and did not disclose that they had advocated for Aaron’s immediate commutation.

The pardons process in the United States is broken. President Bush issued fewer pardons and commutations than any two-term president since Thomas Jefferson, and the process has crept to a virtual standstill under Barack Obama. The ProPublica investigation has done a superb job of charting exactly where the blockage occurs: with Rodgers and his supervisor, David Margolis. The pair has shut down the pardons process by improvising a prosecutorial right of veto onto the system.

If there is a silver lining in this situation, it’s the obvious prospect of cost savings. The DOJ’s Office of the Pardons Attorney serves no apparent purpose—the system would function more or less the same whether its staff came to work or not. It would therefore make sense simply to shut down the office entirely. And since the DOJ seems unable to advise the president on pardons without encountering obvious conflicts of interest, there are constitutional grounds for this solution, as well. The DOJ would still be entitled to express its views on specific cases—though given its self-serving track record, these views would have far less credence than those of judges, prison authorities, and community leaders.

I recently examined the pardons process in Kazakhstan, an authoritarian state with a weak rule-of-law tradition. Despite this state of affairs, the pardons process functioned smoothly there, with cogent criteria established and applied, resulting in significant numbers of pardons that cleared out doubtful and borderline cases involving petty and non-violent crimes from the overburdened prison system. Could the United States handle pardons as efficiently and humanely as Kazakhstan? Not while the Justice Department is playing a key role in the process.

Former White House counsel Greg Craig recently offered a sensible alternative approach at a function sponsored by the American Constitution Society. After advocating for the removal of the Department of Justice from the process, he called for the creation of an “independent commission led by a panel of distinguished commissioners who are both Republicans and Democrats and who have a large enough staff to do the work that is needed.” Craig’s desire for the panel to be bipartisan is unfortunate, since this element of his proposal accentuates the distracting political elements of the criminal-justice process; far better would be to create a nonpartisan panel of former prosecutors, defense counsel, retired judges, prison administrators, ethicists, and other prominent community leaders. But the concept otherwise seems eminently reasonable, and urgently needed.

Yoo, Latif, and the Rise of Secret Justice

One of the lasting challenges to America’s federal judiciary will be addressing American complicity in the tortures and disappearances of the past ten years. Two recent appeals-court decisions show us how judicial panels are tackling these issues: by shielding federal officials and their contractors from liability, and even by glorifying the fruits of their dark arts. In the process, legal prohibitions on torture are being destroyed through secrecy and legal sleight of hand, and our justice system is being distorted and undermined.

Last week, the Ninth Circuit reversed a district-court decision allowing a suit against torture-memo author John Yoo to go forward. The suit had been brought on behalf of José Padilla by his mother, who argued that Padilla was tortured while in U.S. custody as a result of Yoo’s advice—a claim that seems pretty much unassailable, and that had to be accepted as true for purposes of the preliminary rulings. In a decision that has left international-law scholars dumbstruck, the Ninth Circuit granted Yoo immunity, concluding that the law surrounding torture was so muddled when he dispensed his advice that he should be given the benefit of the doubt. The best authority the judges could muster for this outlandish perspective was a European Court of Human Rights decision from 1978, which found that a series of grim techniques used by Britain against Irish internees was not torture—rather it was “cruel, inhuman and degrading treatment.”

Hovering in the background of the Ninth Circuit’s opinion is a troubling fact: John Yoo had a co-author when he crafted his torture memoranda, Jay Bybee. And Bybee is now a judge on the Ninth Circuit. Had the court handed down any other ruling, it would have been exposing one of its own. The court’s twisted reasoning and distortions of legal precedent otherwise make very little sense. Indeed, the Ninth Circuit judges seemed to be uncomfortable with torture, issuing an opinion that was comparable to a surgical excision: do what is essential to shelter Yoo and Bybee, and not an iota more.

The D.C. Circuit, conversely, has developed a real hankering for torture. Exhibit A in its judicial immorality tale is the astonishing 2–1 decision handed down in October in the Latif case, in which two movement-conservative judges overruled a district court that had concluded that Latif—a thirty-six-year-old Yemeni who has spent the past ten years of his life in prison in Guantánamo without being charged and with only vague suspicions connecting him to terrorist groups—should be released because the record did not contain sufficient evidence to warrant a life sentence in the absence of charges. Judge Janice Rogers Brown, a George W. Bush appointee, wrote that the usual presumptions had to be reversed in cases involving Guantánamo detainees: the government’s secret conclusions had to be presumed correct unless they were contradicted by compelling evidence to the contrary. In Brown’s perspective, the analytical report on Latif prepared by CIA officers—who were under immense pressure to justify detentions even when the evidence plainly indicated very little to no basis for them, as Glenn Carle and other CIA case officers have openly acknowledged—was entitled to a “presumption of regularity.” Because key parts of this report were classified, it was not entirely accessible by the petitioner, denying him the ability to effectively rebut it.

Brown’s opinion, as well as many critical documents in the case, were heavily censored, which made it challenging for observers to know and understand the basis for her ruling. But a further edition of the decision was released on April 27, providing ammunition for its critics. Brown’s opinion is filled with what the New York Times today calls “misstatements about rules of evidence” and an “inexcusable disregard for critical facts.” These misstatements are not the result of sloppiness. They are quite conscious; in fact they are critical to the result. Brown believes the trial court should have accepted the CIA’s analysis unless convincing evidence existed to contradict it. But in the trial judge’s opinion, such evidence existed: Latif’s testimony better matched medical and other records than the CIA’s analysis.

In a dazzling display of judicial hubris, two movement-conservative judges had decided to substitute their judgment for that of the trial court. This was not their proper role; neither was it their role to effectively gut the Supreme Court’s decision, in Boumediene v. Bush, to grant habeas corpus review to Guantánamo prisoners—a ruling the Latif decision appears to reduce to a sham. In public settings, several of the D.C. Circuit judges have been openly critical of the Supreme Court’s habeas ruling. They have also publicly defended the Bush Administration’s terrorism-fighting policies—suggesting the motivation for their poorly reasoned opinion in Latif.

Such decisions mark the ascendance of a “justice of secrecy” in American courts. This flavor of justice aims to use American courts and legal processes to validate torture and other abusive practices, to validate the supposed benefits America has received from these practices, and to shield political actors and their helpers. The justice of secrecy also applies a presumption of truth to classified information and frustrates efforts to challenge it.

To see where this sort of substantive justice leads, it is instructive to look at modern authoritarian and totalitarian societies. For example, following a series of terrorist bombings in Moscow on January 8, 1977, the KGB orchestrated a dissident-harassment campaign widely suspected at the time to have been designed as a provocation. Years later, after the collapse of the Soviet Union, Russian president Boris Yeltsin granted a request by human rights activist Elena Bonner to release KGB archival files that included documents related to the January 8 bombings. The files revealed that KGB agents had been ordered to round up known dissidents and build cases against them. The political pressure to assemble evidence implicating the targets was immense, and the usual intelligence-service techniques were applied to that end. In the end, the investigations led to charges against three Armenian activists. Details of these charges were withheld from the public until January 31, 1979, when it was announced that the Armenians had been tried, convicted, and executed for the terrorist bombings.

The proceedings had been justified from the outset by national-security concerns related to a terrorist campaign, and the intelligence service had been given free rein, its methods shielded from public view all the way through to the secret trials. Andrei Sakharov spoke out against the process from the beginning. “Secret justice,” he said, “is no justice at all.” In his mind, the episode showed the Soviet Union’s lax commitment to justice, evident in the role of prejudgment in intelligence-service investigations, the unreliability of conventional intelligence-service techniques, and the absence of fair trials. In his view, the criminal-justice system’s deference to the intelligence service’s demands for secrecy was unwarranted; it stripped the system of legitimacy, converting a legal process into a nakedly political one. In taking on the KGB, Sakharov earned its enmity, and he was soon subjected to a campaign of vilification. But history has proven the truth of his accusations.

Sakharov’s observations apply just as fairly to the efforts of the CIA and American prosecutors and courts to introduce secret justice in America. The type of secrecy that lies at the heart of Latif cannot be reconciled with justice—it is political by nature, and it is motivated by a sense of political vulnerability. Courts embrace such secrecy at the risk of forfeiting their claims to impartiality and fairness, and of harming America’s institutions and reputation.

The Costs of Secrecy in Pakistan

If America’s national-security mavens had to identify their biggest worry on a world map, odds are that the pin would land within a hundred miles of Islamabad. Once hailed as America’s most vital non-NATO ally, and the recipient of more than $10 billion in aid since 2001, Pakistan is now emerging as a nightmare. It may be home to the world’s fastest-growing nuclear stockpile, and it is certainly the most worrisome source of nuclear proliferation over the past decade. Its security forces have a mysteriously cozy relationship with scheduled terrorist forces, such as Lashkar-e Taiba, which launched a series of attacks on Mumbai in November 2008, killing or injuring at least 472 people. And it is a state in abject collapse—unable to convince its citizens to pay taxes, to provide basic utilities to its people, to keep order, or to provide for essential defense. Significantly, Pakistan is also a nation filled with rage against the United States—a dangerous enemy in the making. How could this happen in a country that could barely stand up without massive U.S. assistance?

Ali Chishti grapples with the demonization of the United States in Pakistan in a piece in Lahore’s Friday Times:

In a recent Gallup survey conducted in Pakistan, 35 percent of the people hold the US responsible for terrorism in Pakistan, 39 percent say it is America’s war that Pakistanis are fighting and 52 percent think that WikiLeaks has been published by the Americans themselves. At one of the country’s biggest universities, the Karachi University, the flag of the US, Israel and India are embossed on a road by an Islamist party for students to walk over as a sign of hate. Recently, Altaf Hussain, the leader of one of the most secular political parties—the Muttahida Qaumi Movement (MQM)—lashed out at the US over the Aafia Siddiqui issue. So why is it that the US, which has given Pakistan billions in aid and whom the Pakistani security establishment holds regular “strategic talks” with, has become a punching bag for all segments of society in Pakistan?

There is no doubt at this point that the United States has made a series of spectacular errors in judgment in dealing with Pakistan—bipartisan errors, largely forged by a national-security apparatus that serves both parties, covets secrecy, and detests being challenged over its mistakes. Some of its mistakes in Pakistan were avoidable, such as bombing a Pakistani border outpost and sending CIA contractor Raymond Davis to operate in an environment he didn’t understand. But it is becoming increasingly clear that secrecy itself is the largest and most consequential of its errors.

When the United States first broached with Pervez Musharraf the idea of using drones to strike at terrorists operating on Pakistani soil, his consent was apparently contingent on an understanding specifying that the strikes be a covert operation run by the CIA. This might have made some sense in 2004, but what has emerged since then is a sustained military campaign involving some 290 strikes and 2,700 casualties. America’s silence emboldened America’s critics in Pakistan, cloaking the Pakistani politicians who authorized the strikes (and even furnished their own targets) while allowing the United States to be attacked as a bloodthirsty enemy that was violating Pakistan’s sovereignty and killing hundreds of innocents.

When American special-ops units raided Osama bin Laden’s compound in Abbottabad, American spokesmen at first described it as a joint Pakistan–U.S. operation. This was false, of course, but it was said in the hope that senior Pakistani military figures would claim credit for the raid and celebrate it, rather than condemn it. (It probably also reflected a previously agreed-upon protocol for raids similar to the one in place in Yemen.) After a key meeting of senior Pakistani military leaders, however, the country’s top brass began condemning the United States. This was a key turning point in the U.S.–Pakistan relationship, and America’s foolish secrecy had paved the way.

The United States is a democratic state whose people have a right to be informed about facts allowing them to make essential national-security decisions. For all its weaknesses, Pakistan is also essentially a democratic state, whose people have a right to be informed about their vital national-security interests, particularly with respect to decisions affecting the use of lethal force on their own soil. What transpired in the drone war was essentially an agreement between the national-security elites of both nations to keep their respective publics in the dark about their operations. That agreement was fundamentally anti-democratic and corrupt. But it also revealed a profound American naïveté about the Pakistani security establishment and its dangerous exercises in rabble-rousing. America’s enemies in Pakistan have profited tremendously from this secrecy. America was victimized by it. As Ali Chishti notes, today one common viewpoint unites every significant party on the Pakistani political spectrum: hatred for the United States.

America does not need to be loved to operate effectively in the world. But it helps us to be understood and to avoid the costs attached to being reviled, particularly when the vitriol is based on misunderstanding. Putting an end to secretive operations in Pakistan and forcing Pakistani leaders to bear the consequences of their unpopular decisions would be a step in the right direction.

Every Nation for Itself: Six Questions for Ian Bremmer

Ian Bremmer

The world is quickly being reshaped, writes political economist Ian Bremmer. America established itself as the paramount power following the collapse of Communism, but the emerging system is one in which no nation or group of nations stands out as its leader. What will this mean for the global economy and for conflict in the near future? In Every Nation for Itself, Bremmer looks at the world forming now and sees glimmers of hope, but a somber future. I put six questions to him about his new book.

1. We have the G–7, the G–8, and the G–20—explain how you came up with the idea of the G-Zero?

Simply put, the G–7 and the G–20 no longer reflect the world we live in—each for their own reasons. After the financial crisis of 2008, it was clear that the G–7 was too narrow to solve the problem—the United States and its allies alone could not stem a crisis that was impacting so much of the world. The result was an empowered G–20, in which a lot more players with a lot more voices briefly came together to provide global leadership. This moment of coordination proved to be fleeting—the G–20’s component nations only worked together as long as there was a looming crisis that affected them to a similar degree, and for a similar duration.

When the dust settled, we saw the fundamental shift occurring today: the West is riddled with debt and less capable of providing global leadership, while emerging markets like China have proven resilient and increasingly important on a global scale. Yet those markets remain unwilling to set an international agenda as they focus, first and foremost, on the domestic growing pains that come with development.

So if the G–7 can function but doesn’t reflect the global balance of power, and the G–20 is representative but cannot function, what do we have left? I call it the G–Zero: a volatile period during which no country or group of countries can set the global agenda and solve the world’s most pressing problems. We need answers on global concerns like climate change, the availability of food and water, nuclear proliferation, and international security. In the G–Zero, we’re not going to get them.

2. The notion that the United States is stuck in a period of “decline” following a decade or more of “triumphalism” seems to be in vogue right now, though you say it’s narcissistic. On the other hand, John Lloyd wrote in a recent Financial Times review of your book that America’s “days as a superpower are over”—is his summary of where you stand correct?

It’s true: recently, the big foreign policy debate has revolved around American decline, as academics and “thought leaders” line up for and against the notion. While this makes for good theater, it’s the wrong question altogether.

America’s “days as a superpower” are certainly not over, whether it’s in decline or not. Even if the United States is destined to fade into oblivion—which I strongly doubt—we can’t ignore its indispensability today. America is and will remain the world’s only superpower for some time still. It has residual strengths that make it the most important player on the global stage. It still boasts the world’s largest economy and its largest military. The American dollar is still the global reserve currency and the undisputed safe haven when volatility strikes.

Here are the two irreconcilable facts that shape the United States’ role in foreign policy: first, it is the world’s most powerful and indispensable nation, and will remain so for the foreseeable future, whether or not it is in decline; and second, the United States is unwilling to provide global leadership as it used to, because of domestic economic concerns and war fatigue stemming from two long campaigns in the Middle East.

This is where narcissism comes in. Focusing on the question of American decline is problematic because it means we’re applying an American lens to global problems. Whether or not the United States is in decline, the important thing is that in today’s environment, America is the last best hope for global leadership, which it is unwilling and unable to provide. The United States will not intervene on behalf of the Syrian people. It will not bail out Europe. It will not bomb Iran. These are the facts, decline or not.

Today’s problems will be solved or ignored by today’s leaders. The question isn’t whether America is in decline. It’s who will lead if our only superpower can’t. In the G–Zero, we don’t have an answer.

3. Some of your book turns on the idea of “creative destruction.” What do you mean by this expression, and what role do you see for it in the coming generation?

Creative destruction generally refers to evolution in the marketplace. It happens all the time. We see a product that can’t keep up with an ever-changing environment, and companies have to adapt or die out. We saw this as independent bookstores lost out to the Barnes & Nobles and Borders of the world, only to see Amazon threaten that business model as it took bookselling online. It’s a system of constant growing pains, success, and failure—but it’s productive and progressive.

Creative destruction doesn’t happen nearly as frequently in geopolitics. Institutions are slow to adapt to shifting circumstances. The last major period of geopolitical creative destruction was after World War II, when the United States built up the Bretton Woods system to provide global governance. The American-led “G7” institutions that it built—the IMF, World Bank, the UN—have been drivers of globalization ever since, as everyone benefited from developing states bringing their labor and goods closer to the developed world.

But now, for the first time in seven decades, we are witnessing political creative destruction once more. The underlying balance of power has been shifting, whether it’s between the United States and China, developed democracies and emerging markets, or debtor and creditor nations. As the marketplace changed, the product didn’t keep up: we saw a reality that was no longer reflected in the America-centric agenda, institutions, and values that still defined the global order.

But political institutions need a big shock if they’re to be broken to pieces. The collapse of the USSR in 1991 wasn’t big enough; 9/11 didn’t cut it either. The financial crisis of 2008 proved to be the catalyst. So the question is, what comes next? Until the answer emerges, we are stuck with G–Zero—a transition period as the old order crumbles but nothing has yet replaced it.

4. What does the lingering euro crisis tell you about the international failure of leadership? By one narrative, of course, it has revealed Germany’s position of almost unquestioned supremacy on the European continent—something Germany arguably struggled to obtain from 1870 forward, but now doesn’t really want. Is G–Zero about natural leaders rejecting the burdens of leadership as much as about the absence of ability?

Yes, this is absolutely the case. In the G–Zero, we see a combination of unwilling and unable leaders. The United States is dropping the baton of global leadership—and no one is willing to pick it up.

In the Eurozone, Germany is a slightly different story—cultural reasons in play since World War II precluded it from pushing for supremacy before now. But the sovereign debt crisis is playing out in a G–Zero environment, in which no outsiders are going to step in to prop up the Eurozone and ensure that the experiment works. We won’t see a new Marshall Plan for Europe; in fact, the United States refused even to contribute to the most recent round of IMF fundraising. China is not going to bail out Europe when it’s busy trying to bring its own citizens out of poverty through sustained growth. So we’re seeing a situation in which Germany’s indispensability is outweighing its unwillingness to take the lead. German leadership is much better than no leadership at all—but it still comes with drawbacks and question marks. Germany is forcing other countries into painful austerity in return for its assistance. Will this bring the region back to growth? Can Europe solve its problems on its own? Unfortunately, with no one else stepping in to help, we’ll get the chance to find out.

This is the trouble of G–Zero leadership. It is piecemeal and local, and leaves every nation focused on its own interests. The global picture falls by the wayside.

5. You offer an intriguing vision of a near-future in which America pivots to China, with a Sino-American entente forming the basis for peace and prosperity. How do you reconcile this prospect with the realities of American domestic politics, as reflected in the recent Republican presidential debates?

A G-2 entente, in which China and America work relatively harmoniously to provide global leadership, is possible. It would require China to rebalance its economy effectively, and the United States to maintain an internationalist perspective as it shifted power and responsibility to China. Unfortunately, it’s an unlikely scenario; the relationship between the two countries will probably become more and more strained. This, however, has nothing to do with anti-China rhetoric uttered by Republican and Democratic politicians alike. It has everything to do with conflicting fundamentals and the scale of the challenges in play. China will have to rebalance its economy as its labor force shrinks and its population ages. It will have to shed a state-capitalist system that has been useful in the past but will prove increasingly problematic in the future. The United States has its own domestic worries to deal with. It needs to address its growing deficit, political gridlock, and wealth disparity. Even if both countries are successful in addressing these issues, they are poised for conflict in many areas: American access to the Chinese market, intellectual property, cybersecurity, defense.

6. One of the most influential of Dick Cheney’s ideas, as revealed to us by Paul O’Neill, is that “deficits don’t matter.” Can an America that embraces Cheneyite economics survive in a G–Zero world?

America can absolutely survive with a huge deficit in the G–Zero. In fact, the uncertain economic climate makes debt all the more manageable: the United States has growth and resilience on its side, which draws in countries seeking shelter from volatility. While this benefits the United States, it won’t last forever. The danger is if the G–Zero lets U.S. policy-makers think they’ve got plenty of time to fix America’s long-term challenges. If they begin to imagine that “deficits don’t matter” in a post-G–Zero world, they will be sorely mistaken—and it could prove catastrophic for the country. The world’s faith in the dollar and the United States when things are uncertain buys us time we cannot afford to squander. The post-G–Zero world comes with no guarantees about the role of the dollar, the importance of the free market, the leadership capacity of the United States, and the prominence of values like human rights and democracy. This is why we need to start investing in the future now. We need to reinvest in our infrastructure and education systems, work on the deficit, and reform our immigration policies, so we remain in a position to shape the world that comes next.

Another Victory in the War on Drugs

Daniel Chong, an engineering student at the University of California at San Diego, went to a 4/20 party thrown by some friends. He got stoned, fell asleep, and was still present the following morning when agents of the federal Drug Enforcement Administration stormed the house. Although it was clear that Chong had simply been in the wrong place at the wrong time, the DEA threw him into a cell. Then they forgot about him, leaving him without food or water for four days:

Mr. Chong was left alone in the 5-by-10-foot holding cell, with no food, no sink and no toilet—only a blanket. He said he could hear footsteps as agents walked by, other cell doors opening and toilets flushing. He kicked the door, screaming for water. But no one came. After the first two days, Mr. Chong said, he began to hallucinate, imagining “little Japanese cartoon characters telling me what to do.” He clawed at the walls, convinced that they contained messages about where to find water.

Three times he drank his own urine. The only sustenance he had, he said, was a packet of white powder that he found wrapped in the blanket, which turned out to be methamphetamine. On the fourth day, he said, the lights in the cell went out. Eventually, his hands still cuffed behind his back, he broke his eyeglasses with his teeth, as he contemplated killing himself. On his arm, he tried to carve a message: “Sorry Mom.” He also swallowed a piece of the glass, which cut his esophagus.

The DEA’s special agent in charge in San Diego extended his apologies to Chong, but Chong hired an attorney and is now seeking $20 million in damages. The incident vividly sums up many of the severe flaws in judgment traditionally exhibited by the agency, which routinely tramples on the civil rights of its victims. It also tends to resort quickly to extreme violence, including the use of lethal force on suspects—and recently (and bizarrely) on pets.

The DEA and its local-law-enforcement imitators love to consider their work as military in nature, frequently using war analogies when discussing their operations. However, they don’t follow the basic rules of respect for civilians that lie at the heart of the laws of war. Drug cops have flooded American prisons with small-time users, giving the country one of the largest per-capita prison populations on the planet. And for all of that, law-enforcement officials appear to have succeeded more in transforming the drug trade into a massive, organized criminal operation than in effectively combating it.

The agency and its strategies, which together comprise America’s second effort at prohibition, may be the most completely failed ideas that the Seventies brought to America. Yet the American political sector seems incapable of accepting the now-plentiful evidence of their failure. The DEA has about 11,000 employees and a budget of about $2.5 billion dollars. Members of Congress looking for fat to trim from federal expenditures ought to be taking a close look at the agency. Its value-to-damage ratio is likely the worst in our entire government.

Jose Rodriguez, Poster Boy

Why did Jose Rodriguez, the former head of the CIA’s clandestine service, destroy ninety-two tapes of interrogation sessions in which terrorism suspects were subjected to waterboarding and other torture techniques? On Sunday, Lesley Stahl put the question to him on 60 Minutes, and he provided an answer:

rodriguez: To protect the people who worked for me and who were at those black sites and whose faces were shown on the tape.

stahl: Protect them from what?

rodriguez: Protect them from Al Qaeda ever getting their hands on these tapes and using them to go after them and their families.

Rodriguez’s claims don’t stand up. Tapes are released with some regularity by the government, and when they are, the identities of any Americans shown in them are almost always obscured—in fact, U.S. law would generally require that this be so. So his first concern hardly makes sense. His second, that the interrogators would become Al Qaeda targets, is similarly a stretch, not only because their identities would not be disclosed, but because of the clear success of the U.S. campaign against Al Qaeda. The terrorist organization has been decimated; it is now struggling from the margins against extinction. And even if it were in a position to strike, low- or mid-level CIA interrogators would hardly be high on its list of targets.

So why did Rodriguez really send those ninety-two tapes through an industrial-strength shredder? We know that they contained information sought under court order for use in civil and criminal litigations. Their release would probably have resolved questions about whether certain prisoners had been tortured, and about the circumstances under which the prisoners made certain statements. Disclosure would also have resolved questions about which techniques the CIA used and how they were applied. These are hardly abstract concerns—even today, former attorney general Michael Mukasey regularly explains to incredulous audiences that when America waterboards, it is entirely different than the waterboarding of the Nazis, the Khmer Rouge, and the Spanish Inquisition. Such claims might not be so easy to repeat if we could actually witness what the United States had done. Clearly Rodriguez didn’t want these details to come out.

Rodriguez told 60 Minutes that he thought destroying the tapes was legal. We can dismiss that possibility, too. We only have to think back to the Enron–Arthur Andersen affair of 2001 to 2003 to know how the American criminal-justice system usually deals with persons who consciously destroy evidence sought in pending cases and investigations: criminal convictions, followed, in Enron’s case, by prosecutions and the closure of a century-old global firm with 85,000 employees. These events were still fresh in 2004 and 2005, when Rodriguez was fretting over the destruction of the tapes. He would plainly have understood that he could be prosecuted and sent to jail for destroying them.

Indeed, why has Rodriguez not been charged and put on trial? That’s a question many are asking as he takes to the airwaves to push the idea that torture works. The only satisfactory answer lies in the doctrine of in pari delicto¹1. In pari delicto applies when both sides of a lawsuit have been involved in the same wrongdoing.—the Justice Department is itself so deeply enmeshed in Rodriguez’s crimes that it could hardly prosecute the case. But if this doctrine explains the DOJ’s failure to prosecute, it also suggests that someone else should be bringing the charges.

Former FBI agent Ali Soufan, receiving the Ridenhour Prize last Wednesday for his book The Black Banners, took direct aim at Rodriguez in his acceptance speech. The tapes were destroyed, he said, because they provided “evidence of [the CIA’s] unprofessionalism, and incompetence.” By destroying the tapes, Rodriguez gave himself room to fictionalize what happened during those interrogations sessions. He seems now to be using this license liberally—and he’s being challenged by those familiar with the CIA’s classified records. Dianne Feinstein, the chair of the Senate Select Committee on Intelligence, which is completing a three-year study of the efficacy of the CIA techniques, just issued a press release questioning Rodriguez’s truthfulness and suggesting that he was claiming credit for the accomplishments of others. The Committee’s report, when it is issued, will likely furnish much more detail on the techniques the CIA used and what these techniques produced. From the descriptions we’ve heard so far, it appears as though the report will sharply contradict Rodriguez.

The ninety-two tapes contained compelling evidence of criminality. They presented a dire threat to Rodriguez and those of his masters who approved the use of torture. His motivations in shredding them therefore seem clear enough: he was afraid of criminal prosecution. And he still should be.

There is no immediate threat that charges will be brought against Rodriguez and his bosses—not under Barack Obama and Eric Holder. But Rodriguez has plenty of reason to be concerned that such charges will be pressed against him outside of the United States, and eventually here as well. Rodriguez is a thirty-year veteran of the CIA who spent virtually his entire career in Latin America, serving in Mexico City, Buenos Aires, and other locations. He happily embraces the dark side; indeed, Latin America was home to some of the blackest of CIA black ops, including assassinations and operational support for regimes that routinely used torture. But he would also have observed what happened to many of the CIA’s allies who turned to torture—to generals and admirals who fought the “dirty war” in Argentina and Uruguay, to Pinochet loyalists in Chile, and to Alberto Fujimori in Peru. Each of these regimes left office armored with amnesties and immunities, with official decisions to decline prosecution, and, significantly, with strong public support for the use of torture as a necessary evil in the battle against terrorists. But in the past few years, former heads of state and leading figures in the intelligence communities of each of these countries have been charged, tried, and convicted of crimes that include torture and conspiring to torture.

What happened? Across more than two decades, public opinion steadily turned against those who had used torture. This process was driven by disclosures of photographs and tapes of heinous acts, by the meticulous work of forensic pathologists who gave the victims a voice, by survivors who forcefully recounted their experiences, by journalists who published exposés, and by lawyers who pressed for information to be revealed and who painstakingly assembled facts for lawsuits.

Jose Rodriguez watched all of this happen. He would certainly appreciate the power of these historical precedents and the likelihood that the ninety-two tapes, if released, would come back to haunt him, and quite possibly send him to jail. That, I believe, is why he destroyed them.

During the American campaign against Al Qaeda, FBI agents working with the CIA on the interrogation of a few key suspects began to refer to CIA torture technicians as “the poster boys,” because they expected that the torturers would soon be featured on wanted posters around the world. Jose Rodriguez has earned his place as one of the boys.

Bread, Circuses, and the Edwards Prosecution

Last week, in a courtroom in Greensboro, North Carolina, the Justice Department launched its latest political charade in the guise of a public-integrity prosecution. Former Democratic vice-presidential nominee John Edwards, a man with whom President Obama once broached the possibility of an appointment as attorney general, faces charges that he spent nearly $1 million in campaign donations to cover up an embarrassing sexual liaison. This, prosecutors insist, was a federal crime, for which Edwards could spend as many as thirty years in prison and face a $1.5 million fine.

Meanwhile, on televisions across the state, a well-financed G.O.P. advertising campaign, apparently timed to coincide with the trial, is launching broadsides against sexual indiscretions and moral laxity by leading figures in the North Carolina Democratic Party. And in North Carolina’s thirteenth congressional district, which sweeps in a crescent north and west from Raleigh, George Holding is seeking to reclaim the district for the G.O.P. Holding is both a dedicated Republican activist and the Bush-era U.S. attorney who launched a criminal probe targeting Edwards, the former darling of North Carolina Democrats. As a U.S. attorney, Holding championed the idea of charging Edwards with election-finance crimes. Election-law experts around the country view Holding’s theories as borderline crackpot, but the Holder Justice Department, fearing that it would be accused of partisanship, allowed Holding to stay on and gave him free rein to pursue the case, even as his other objectives—tilting the political balance in the state toward the G.O.P. and winning a seat in Congress for himself—were open secrets.

The Edwards prosecutors may well win their case, but not because any crime was involved. Rather, they’re likely to win because John Edwards is one of the most reviled politicians in the United States, and so a choice target. No doubt his affair, undertaken while his heroic wife was dying of cancer, makes him the definition of a cad, but while he may be morally unsuited for high office, that is not the question in this trial. If Edwards can be imprisoned for using campaign funds to try to cover up his flaws, then few politicians could fairly escape prison. The Justice Department appears instead to be engaged in statutory vandalism, and it is awarding itself exceptional power to intrude into the electoral process—a power that is ripe for abuse, as the Edwards case demonstrates.

The DOJ’s public-integrity prosecutions have careened in recent years from one humiliation to the next, with little thought for the damage the department is doing to the law or to its own reputation. First came the prosecutions of Alaska Senator Ted Stevens and Alabama Governor Don Siegelman, both cases in which the department secured convictions through false evidence, as prosecutors suppressed exculpatory materials that established the innocence of the defendants. Then came the $40 million Alabama bingo prosecution, touted by Assistant Attorney General Lanny Breuer as a demonstration of the department’s commitment to stopping bribery in the legislative process. That case ended with acquittals across the board, after the evidence demonstrated not corruption, but the duping of the DOJ by political hacks with racist motives—as the judge himself pointed out.

After these serial calamities, public-integrity prosecutors are now sallying forth with the Edwards trial, providing fodder for the National Enquirer and Entertainment Tonight while provoking disgust from commentators across the political spectrum who are seriously concerned about political ethics and campaign finance regulation. As the Justice Department has pursued these cases, draining the public coffer and trust, it has failed to prosecute other, more important crimes. The financial collapse that occurred in the fourth quarter of 2008 was caused by some of the most massive fraud and most spectacular failure of regulatory oversight in the nation’s history. In large measure, this failure belonged to the DOJ’s Criminal Division, which is ultimately responsible for oversight and enforcement. Four years after the crisis, the department maintains its posture of somnolence in the face of systemic, widely documented fraud.

An excellent example comes in the case of Countrywide Financial Corp, which saw former employees like Eileen Foster, the recipient of this year’s Ridenhour Prize for Truth-telling, expose themselves to enormous risk in order to discover and bring to light criminal activities like the ones described by the Center for Public Integrity’s iWatch News:

By intercepting the documents before they were sliced by the shredder, the investigators were able to uncover what they believed was evidence that branch employees had used scissors, tape and Wite-Out to create fake bank statements, inflated property appraisals and other phony paperwork. Inside the heaps of paper, for example, they found mock-ups that indicated to investigators that workers had, as a matter of routine, literally cut and pasted the address for one home onto an appraisal for a completely different piece of property.

When the Countrywide whistleblowers turned to federal prosecutors, however, they encountered a massive yawn. Assistant Attorney General Lanny Breuer, the same man who bears responsibility for the Stevens, Siegelman, Alabama bingo, and Edwards fiascos, told Steve Kroft of 60 Minutes, “In our criminal justice system, you have to prove beyond a reasonable doubt that you intended to commit a fraud.” But Breuer’s claim that the evidence in the Countrywide case failed to constitute proof will not be convincing to anyone who has looked at the record. Rather, the case reflects a failure of political will at Justice to enforce the law—and an infantile obsession with high-profile political gamesmanship.

The DOJ’s political prosecutions demonstrate its exceptional vulnerability to political manipulation, its absence of professional independence, and its consistent failure to exhibit mature, detached judgment. The Edwards case perfectly encapsulates these qualities, and leads to an inescapable conclusion: that the upper echelon of the Justice Department, whether under Democratic or Republican administrations, is filled with political hacks eager to pad their résumés before launching their political careers.

The Crisis of Zionism: Six Questions for Peter Beinart

Peter Beinart, © Guillaume Gaudet

Peter Beinart, a former editor of The New Republic who now writes for the Daily Beast and teaches at the City University of New York, has just published a remarkable book, The Crisis of Zionism, that tackles one of the most contentious issues in American politics: how the United States interacts with an Israel that seems increasingly unreceptive to American advice but increasingly engaged in American politics. I put six questions to Beinart about The Crisis of Zionism and its critics, who seem curiously intent on attacking him while ignoring the actual content of his book:

1. It has seemed this year as though figures known for enthusiastically backing West Bank settlement construction, such as Sheldon Adelson and Irving Moskowitz, are putting an immense amount of money into the G.O.P.’s efforts to defeat Barack Obama. Why do you think this is so, and what do you think is the object of their attempts to influence the elections?

Adelson is to the right on a whole range of issues; I don’t know if Moskowitz’s interests are broader than Israel, but I do think both men believe Obama is bad for Israel and that Romney would be better, especially on Iran. I think they’re wrong. Obama’s policies are actually far better for Israel vis-à-vis both Iran and Palestine—and specifically vis-à-vis the possibility of a Palestinian state, because a one-state solution would be a disaster for Israel. But that’s where the Republican Party has essentially gone: to a one-state position.

2. In the past several months, Israeli leaders have floated, backpedaled on, and floated again the notion of a pre-emptive Israeli airstrike against Iran. The idea is always presented as a test of the U.S.–Israel relationship and as a seeming pretext for criticism of Obama, and with the thought that it could occur before the U.S. elections in November. Do you suspect that the elections are motivating this talk—that Netanyahu and those close to him want to use it as a wedge to break Obama’s hold on Jewish voters?

No, I don’t. They’re not doing this because they think they can push voters away from Obama. I don’t think the specter of an attack on Iran could do that in significant measure anyway. It’s a useful time to raise the idea partly because the political realities make it harder for Obama to restrain Netanyahu now than they might at a different time. But to be fair to Netanyahu, he has been very focused on Iran for years—it has been his number-one issue since he came to office. I disagree with his view of it and with the policies he supports, but I don’t question his sincerity, nor how deeply he cares about the issue.

3. Your book has been reviewed very negatively by figures close to the U.S. Jewish establishment—you’ve been called “naive” and “Manichean,” and your view of Israeli politics has been described as lacking subtlety. On the other hand, none of these reviewers has attempted to discuss the major themes of your book, such as the significance of West Bank settlements. Why do you think you’re being stridently attacked, while the actual topics of your book are being ignored?

I think the issue of settlements and Israel’s continued, very explicit support for their construction across the West Bank is very difficult for American Jewish organizations to deal with. On one hand, they say they support a two-state solution, but on the other they don’t want to have to publicly confront the Israeli government. You can’t square those two positions when you have an Israeli government committed to settlement growth.

The painful thing to me about the criticism is the claim that my book doesn’t show love and empathy for Israel. The whole reason I wrote the book was because of how much I admire the creation of Israel as a democratic state, how precious I believe it is, and how deeply I want it to survive as a democratic Jewish state for my children and grandchildren.

4. You quote an interview that Benzion Netanyahu, the current prime minister’s father, gave to Maariv in 2009, in which he compared Jews and Arabs to two goats and said that one “must jump into the river.” What do you think he meant by this? Do you see any evidence of this perspective in Benjamin Netanyahu’s conduct as prime minister?

What I think is striking in Netanyahu’s writing is his total lack of empathy with Palestinian suffering. It’s completely absent from his writing about the conflict, even from his very long book A Durable Peace. His published work shows very little evidence that he feels—that he understands—the suffering of Palestinians and empathizes with their dignity. That’s unfortunate. While it’s important to be zealous about Israeli security, I believe it’s essential to that security to recognize the dignity of Palestinians and to maintain the possibility of their gaining the dignity that comes with statehood.

5. Tony Judt criticized Israel’s “macho victimhood” and said that the country was “no longer fully able to estimate, assess or understand the way other people think about it,” which could lead to dangerous blunders in foreign affairs. Do you think he was right?

Israel does face threats, no question about it—Israel faces very real threats. But the constant analogizing of the threats it faces to the Holocaust is very dangerous. During the Holocaust, the Jews were powerless in Europe. The difference today is that Israel is a powerful country whose political decisions can shape the nature of these threats, and can mitigate them. For instance, stopping settlement construction is a way of undermining the radical anti-Israel forces in the Arab world and of strengthening those who wish to live in peace with Israel. But describing Israelis today as the equivalent of the stateless Jews of Europe in the 1920s and 1930s blinds Israeli policy-makers—or at least this Israeli government—to the fact that a state has the power to shape its strategic environment. This government has done a poor job of shaping its strategic environment in a way that could reduce security threats.

6. You write that the “American Jewish establishment has laid a trap for itself” by abandoning a model that frames support for Israel on democratic commitments. Is this because the establishment has changed, Israel has changed, or both?

American Jewish organizations tend to say they support Israel because of its democratic values, because American Jews are basically secular, and supporting Israel on Biblical grounds is not comfortable for many of them. The problem is that supporting the Israeli government on democratic grounds conflicts with supporting religiously motivated policies that make the occupation and Israeli control over the undemocratic West Bank permanent. So the trap is that you end up having to choose between truly supporting Israeli democracy or remaining silent about Israeli policies on the West Bank.

For Official Washington, Terrorism Is a Laughing Matter

Just how serious is Washington about battling terrorism? The airwaves fill regularly with sanctimonious declamations about terrorist threats and with vows to pursue the war against them to its ultimate conclusion—a war without territorial limits, and with ill-defined opponents and no clear time horizon. A forever war. But to insiders, it is evidently a laughing matter. Developments the past week suggest that for some prominent Washington figures, rubbing elbows with a scheduled terrorist organization and taking money from its front groups is a no-brainer. It may be that they know something most of us don’t about the intelligence community’s dealings with these terrorists.

The State Department scheduled the Mujahideen-e Khalq, or People’s Mujahideen of Iran (MEK) as a terrorist organization in 1997. Regularly described as a cult, the group mixes Shia Islam, Marxism, and rituals venerating its charismatic leaders. While these leaders claim to have renounced terrorist violence, they have a history of advocating violence to accomplish religious and political objectives. The MEK earned its place on the State Department’s list based largely on an assassination campaign that targeted American military personnel in Iran in the mid-Seventies. Three military officers and three defense contractors were murdered in MEK-linked attacks: Lieutenant Colonel Louis Lee Hawkins (USA), Colonel Paul Shaffer (USAF) and Lieutenant Colonel Jack Turner (USAF), as well as William Cottrell, Donald Smith, and Robert Krongard, who were in Iran working with Rockwell International on the NSA’s Ibex System.

It is unlawful to accept funds from the MEK or to support the group materially, yet its supporters managed to stage a conference in Washington this past week. Among those appearing were Mitchell Reiss, a senior adviser to Republican presidential candidate Mitt Romney, and former attorney general Michael Mukasey. Both Reiss and Mukasey openly joked that they were potentially committing a criminal offense by aiding a scheduled terrorist group.

Why would Washington political figures publicly associate themselves with a terrorist organization? It might be because they know that the United States itself shelters, arms, trains, and supports the same group—and that prosecutors would therefore face a quandary in going after them. The covert relationship between the MEK and the U.S. military and intelligence communities has not been very covert. The official U.S. account is that following the 2003 invasion of Iraq, the MEK was disarmed and confined to a former Iraqi military base, Camp Ashraf.

American intelligence figures familiar with the arrangement paint a different picture, noting that U.S. forces housed, armed and protected the MEK in Iraq. After the American withdrawal, Iraqi forces raided Camp Ashraf. American officials scrambled to find new lodgings for the MEK, ultimately placing them at the U.S.-maintained Camp Liberty, near Baghdad Airport. American officials are now said to be arranging the relocation of MEK forces to a new facility constructed for them in Kurdish northern Iraq, close to the Iranian border.

The New Yorker’s Sy Hersh recently succeeded in documenting more of the MEK relationship with the JSOC, the Pentagon’s covert intelligence operation. Hersh takes us to a site in the Nevada desert sixty-five miles northwest of Las Vegas:

It was here that the Joint Special Operations Command (JSOC) conducted training, beginning in 2005, for members of the Mujahideen-e-Khalq, a dissident Iranian opposition group known in the West as the M.E.K…. The M.E.K.’s ties with Western intelligence deepened after the fall of the Iraqi regime in 2003, and JSOC began operating inside Iran in an effort to substantiate the Bush Administration’s fears that Iran was building the bomb at one or more secret underground locations. Funds were covertly passed to a number of dissident organizations, for intelligence collection and, ultimately, for anti-regime terrorist activities. Directly, or indirectly, the M.E.K. ended up with resources like arms and intelligence. Some American-supported covert operations continue in Iran today, according to past and present intelligence officials and military consultants.

Hersh notes that the Obama Administration halted the MEK training programs. Since Obama’s team came to office, however, the organization has ramped up its efforts to move the president’s policies back into line with George W. Bush’s. This explains the aggressive outreach, including generous speaking fees and trips abroad, to political figures in both parties. The MEK plainly wants to align itself with the United States in a coming war against Iran, by establishing itself as a source of intelligence and perhaps as an instrument of black operations.

Indeed, with the United States waging a covert war against Iran, the MEK may already be in the thick of things. NBC News recently reported that the MEK is collaborating in a carefully orchestrated and remarkably effective Israel- run campaign to assassinate Iranian nuclear scientists. Former CIA senior analyst Paul Pillar recently wrote a blog post indicating that he considers the report credible. He notes, moreover, that the assassination campaign can be considered classic terrorism, applying the definition used by the U.S. government.

Those arguing for the MEK to be delisted as a terrorist group claim that their 1970s assassination spree was the work of a fundamentally different organization. The modern MEK, they argue, is fully aligned with American foreign-policy objectives and is well-positioned to assist the United States in a coming military confrontation with Iran. In particular, they say that the MEK has provided essential intelligence about Iran’s nuclear weapons program, which the U.S. intelligence community generally believes was curtailed in 2003.

These claims may all be true, but they don’t convincingly address the MEK’s historic use of terrorist tactics, its pattern of human rights abuses, and its culture of violence. Moreover, the Iraq War should have left Americans wiser about émigré groups who peddle evidence of weapons programs as a rationale for the invasion of their homeland and for their eventual installation as a new and friendly government.

The Obama Administration may be caving in to the political pressure brought by the MEK’s well-compensated Beltway friends. The State Department has reportedly suggested that if the MEK’s leadership accepts resettlement in northern Iraq, this will be counted as another factor in support of delisting. If the MEK succeeds in this goal, America’s posture as an opponent of terrorism will be a laughingstock, and will demonstrate that in Washington today, a little bit of cash, prudently spread, can accomplish almost anything.

Witness for the Prosecution

Yesterday the Obama Administration, after a delay of several years, released an important document relating to the Bush Administration’s torture policies: a memorandum by Philip Zelikow, a high-ranking State Department lawyer and confidant of Condoleezza Rice, which aggressively refuted Justice Department memoranda that sought to authorize the use of thirteen “enhanced interrogation techniques” used by the CIA. Zelikow’s memo concluded that the use of these techniques would constitute prosecutable felonies—war crimes. As Zelikow explained in an appearance before the Senate Judiciary Committee in 2009, his memo, when it was circulated in February 2006, caused senior figures in the Bush White House to go ballistic—they actually sought to collect and destroy all the copies.

The memo is not only a significant historical document, it may also provide important evidence in future criminal prosecutions arising out of the Bush-era torture programs. Indeed, the Bush White House fully appreciated this possible consequence, which explains why they tried so hard to make the memo disappear and why Bush-era officials apparently pressed their successors to withhold the memo, delaying its release for three years.

Conservative defenders of the Bush torture team argue that even if the techniques used constituted torture or cruel, inhuman, and degrading (CID) conduct, they were entitled to rely on advice from Justice Department lawyers that said the opposite. In order for a prosecution to succeed, a prosecutor would have to show that the accused understood that what he was doing was a crime. In United States v. Altstoetter, a case in which government lawyers were prosecuted for their role in, among other things, providing a legal pretext for the torture and mistreatment of prisoners, the court fashioned a similar rule, saying that the law requires “proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught.”

The Zelikow memo satisfies both of these elements—it makes clear that the techniques the Justice Department endorsed constituted criminal conduct, and it applied the “shock the conscience” test of American constitutional law to help reach that conclusion. It could therefore be introduced as Exhibit A by prosecutors bringing future charges.

The Zelikow memo also helps correct a popular misconception about Bush-era torture memoranda generally. DOJ public-affairs flaks routinely claim that they were authored by John Yoo and Jay Bybee in 2002, then withdrawn and reversed in later Bush Administration years after Assistant Attorney General Jack Goldsmith discovered them. Almost every element of this position is misleading—in fact, a long chain of memoranda authorized torture, and it involved a substantial number of lawyers working in the Justice Department long after both Yoo and Bybee had departed; moreover, Goldsmith withdrew only one of the Yoo–Bybee memos, leaving another in place. He also worked on another memo that ultimately approved some torture techniques, though he departed before it was finalized and issued. The Zelikow memo was prepared long after Goldsmith’s departure, and focused on a series of memoranda condoning torture issued by Acting Assistant Attorney General Steven G. Bradbury.

Following the Yoo and Bybee memos, the Justice Department’s Office of Legal Counsel played a game of musical chairs, bringing in a series of persons then replacing them. The object of this game was plainly to satisfy the White House’s relentless quest for a lawyer whose mix of political loyalty, ambition, and absence of integrity and professionalism would lead to memoranda fueling the torture program. When the music stopped, Bradbury was sitting as acting head. His three memoranda are in many respects more appalling than the Yoo–Bybee memos, but they have largely escaped public attention (perhaps because of Yoo’s clamoring for the limelight on the torture issue). In his three principal memos, Bradbury first argued that none of the thirteen techniques constitutes torture; in the second, he argued that even if used in combination, they did not constitute torture; and in the third, he argued that the techniques were not CID, and that even if they were, there was no penalty for them.

In his memo, Zelikow doesn’t take up the question of “torture” per se. By 2006, the issue had been established as the third rail of the Bush years, and acknowledging the obvious fact that techniques like waterboarding were iconic acts of torture would have been career ending. Instead, he focused on the “torture lite” standard of CID, and demonstrated in a straightforward and convincing way how Bradbury had misread existing constitutional precedents, as well as international standards. There’s nothing radical or daring about the Zelikow memo. It simply states a series of established principles of law. The premises and arguments of the Bradbury memoranda, by contrast, are so absurd that they did not withstand the light of day—they were withdrawn by the Bush Administration before it decamped from Washington.

Spencer Ackerman, whose persistence is to be credited for the publication of Zelikow’s memo, astutely pressed its author to answer this question: Why, in light of Zelikow’s findings, did the special prosecutor appointed by Eric Holder to investigate the legality of CIA interrogation techniques fail to bring charges?

“I don’t know why Mr. Durham came to the conclusions he did,” Zelikow says, referring to the Justice Department special prosecutor for the CIA torture inquiry, John Durham. “I’m not impugning them, I just literally don’t know why, because he never published any details about either the factual analysis or legal analysis that led to those conclusions.”

Durham has so far refused to offer any explanations for his decision, and given the expiry of the statutory mandate for a report, it’s unlikely that we will ever hear one. Durham’s decision was probably driven at some level by the Obama Administration’s decision to refuse to “look back,” and at another level by the institutional interests of the Justice Department. After all, in the Bush years, senior DOJ lawyers wrote opinions that aimed to induce CIA agents to use these techniques, promising them they would not face prosecution if they did so. Pressing charges against agents now would entail investigating the criminal culpability of DOJ lawyers, and the DOJ has repeatedly said it will not examine the criminality of its personnel in this sordid affair.

Outsiders may well cast a harsher eye on these facts: Yoo, Bybee, and Bradbury promised that those who used torture techniques would be protected from prosecution. And Durham made good on their promise. If a criminal enterprise was working within the U.S. government to introduce systematic torture, its heart lay deep inside the Justice Department.

The High Court’s Body-Cavity Fixation

In a case that may summarize conservative judicial attitudes toward human dignity, Florence v. Board of Chosen Freeholders, the Supreme Court has decided on the claim of Albert Florence, a man apprehended for the well-known offense of traveling in an automobile while being black. Florence was hustled off to jail over a couple of bench warrants involving minor fines that had in fact been paid—evidence of which he produced to unimpressed police officers. He was then twice subjected to humiliating strip searches involving the inspection of body cavities. Florence sued, arguing that this process violated his rights.

There is very little doubt under the law about the right of prison authorities to subject a person convicted or suspected of a serious crime to conduct a strip search before introducing someone to the general prison population. But does the right to conduct a strip search outweigh the right to dignity and bodily integrity of a person who committed no crime whatsoever, who is apprehended based on a false suspicion that he hadn’t discharged a petty fine—for walking a dog without a leash, say, or turning a car from the wrong lane? Yes. In a 5–4 decision, the Court backed the position advocated by President Obama’s Justice Department, upholding the power of jailers against the interests of innocent citizens. As Justice Anthony Kennedy reasons in his majority opinion (in terms that would be familiar to anyone who has lived in a police state), who is to say that innocent citizens are really innocent? “[P]eople detained for minor offenses,” he writes, “can turn out to be the most devious and dangerous criminals.” We should assume, then, that such people are menacing, guilty, and capable of great crimes.

The decision reflects the elevation of the prison industry’s interest in maintaining order in its facilities above the interests of individuals. And it does so by systematically misunderstanding the reasons behind strip searches. Kennedy insists that they are all done for the aim of fostering order, and he backs up this position with exemplary bits of pretzel logic. For instance, he suggests that a person stopped for failing to yield at an intersection may well have heroin taped to his scrotum, and may attempt to bring it into the prison to which he is taken. In advancing such rationales, the Court ignores the darker truth about strip searches: they are employed for the conscious humiliation and psychological preparation of prisoners, as part of a practice designed to break them down and render them submissive.

Just as the Florence decision was being prepared, the Department of Defense released a previously classified training manual used to prepare American pilots for resistance to foreign governments that might use illegal and immoral techniques to render them cooperative. Key in this manual are the precise practices highlighted in Florence. Body-cavity searches are performed, it explains, to make the prisoner “feel uncomfortable and degraded.” Forced nudity and invasion of the body make the prisoner feel helpless, by removing all items that provide the prisoner with psychological support. In other words, the strip search is an essential step in efforts to destroy an individual’s sense of self-confidence, well-being, and even his or her identity. The value of this tool has been recognized by authoritarian governments around the world, and now, thanks to the Roberts Court, it will belong to the standard jailhouse repertoire in the United States. Something to consider the next time you walk Fido without scooping up his droppings—a cop may well be watching, ready to seize the opportunity to invade your rectum.

Pakistan On the Brink: A Conversation With Ahmed Rashid

I will be participating in a discussion with Ahmed Rashid, whose new book is entitled Pakistan on the Brink: The Future of America, Pakistan, and Afghanistan, at Fordham University on Wednesday, April 4, at 12:30 P.M.

Rashid’s most recent work explores the challenges facing Pakistan and Afghanistan in a post–Bin Laden era, as well as the long-term implications of the recent deterioration of U.S.–Pakistan relations. Rashid’s 2000 book, Taliban: Militant Islam, Oil and Fundamentalism in Central Asia, was a New York Times bestseller translated into twenty-two languages.

Harper’s Magazine readers are welcome to attend, but seating is limited and requires pre-registration.

Location: Fordham Law School, 140 West 62nd Street, Room 430 B/C

Time: Wednesday, April 4, 12:30 P.M.

Register by sending an email with your name and the name of the event to nationalsecurity@law.fordham.edu.

U.N. Official Presses Query into Gitmo Deaths

One month ago, Truthout’s Jeffrey Kaye published a review of autopsy reports released last year by the Department of Defense in response to an ACLU Freedom of Information Act request concerning two unwitnessed prisoner deaths at Guantánamo that authorities had described as suicides. Now, Kaye reports that Christof Heyns, the U.N. special rapporteur on extrajudicial, summary, and arbitrary executions, is “looking into” the deaths. Heyns is a South African law professor who teaches at American University in Washington and holds a fellowship at Oxford.

Kaye also asked Cyril Wecht, a renowned forensic pathologist, to review the autopsy report and its supporting documents. Wecht agreed that the autopsy results supported the conclusion of suicide, but he noted that the report failed to rule out the possibility of homicide. He also faulted the military for not providing the pathologist conducting the autopsy with the ligature used in the alleged suicides. “If this is what a respected forensic expert states,” Kaye told me, “then the government should listen and release the evidence held in their investigations and be open to independent investigations held by international forensic investigators.”

In his initial February 29 review of the autopsy reports for Abdul Rahman Al Amri, who died in May 2007, and Mohammad Ahmed Abdullah Saleh Al Hanashi, who died in June 2009, Kaye wrote:

[D]etails in the autopsy reports show that Al Amri was found dead by hanging with his hands tied behind his back, calling into question whether he had actually killed himself…

Al Hanashi was found wearing standard-issue detainee clothing, the undergarments from which he supposedly used to kill himself, and not the tear-proof suicide smock issued to detainees who are actively suicidal. It remains an open question if he [was] in fact under suicide watch, even though he had been repeatedly banging his head on prison walls, and had made five suicide attempts in the four weeks prior to his death.

Both Al Amri, who was housed in isolation at Guantanamo’s high-security Camp 5, and Al Hanashi, who was resident at the prison’s Behavioral Health Unit, were supposed to be under constant video surveillance, and according to camp officials, someone was supposed to be checking on them every three to five minutes.

Kaye noted that the reported deaths and autopsies are odd in a number of respects. First, the detention facility supposedly stopped using regular bed linens in February 2002, replacing them with “suicide watch” linens that could not be torn and used in such a manner. Second, the report claims that the linens were fashioned using a razor blade, but the Gitmo Standard Operating Procedure then in effect denied prisoners access to razor blades other than during shower periods, when their use was supervised. Kaye also focused on the fact that the autopsy failed to scrutinize the ligature purportedly used in the suicide.

According to the autopsy report on Al Hanashi, he had made five suicide attempts in the four weeks prior to his death, and was therefore under suicide watch, which entailed continuous monitoring. The report noted that his death was detected 25 minutes following the last check. Both Al Hanashi and a prior alleged suicide, Yasser Al Zahrani, had been held in northern Afghanistan at the time of the prison riot at Qali Jangi and the massacre at Dasht-i-Leili, and both could have figured as witnesses in an inquiry into those events.

I asked professor Mark Denbeaux of Seton Hall Law School, who has directed a series of studies on prisoner deaths at Guantánamo, what he thought of the latest developments. “Once again,” he replied, “a report of suicide, a questionable autopsy, and no investigation. It is deeply troublesome.”

The issues surrounding the autopsy reports from the Al Hanashi and Al Amri deaths are in some respects similar to those surrounding the three deaths that occurred on June 10, 2006. These questions do not disprove the U.S. government’s claims of suicide. But as U.N. rapporteur Philip Alston noted in a confidential communication about the 2006 deaths to the U.S. government:

When the State detains an individual, it is held to a heightened level of diligence in protecting that individual’s rights. As a consequence, when an individual dies in State custody, there is a presumption of State responsibility…

In order to overcome the presumption of State responsibility for a death in custody, there must be a “thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances.”

Serious questions remain about Guantánamo authorities’ claims that they have taken steps to address prisoner suicides since 2006. Rather than dispel these questions, the recent autopsy reports bear signs of errors and secrecy that actually multiply them. Was this just sloppy work, or was it a desire to cover up embarrassing or harmful facts associated with the deaths?

First Criminal Charges Brought in Polish Probe of CIA Black Site

The Warsaw-based newspaper Gazeta Wyborcza and TVP Polish Public Television are reporting that criminal charges have been brought in the long-pending investigation into torture and kidnapping associated with a CIA black site on Polish soil during 2002 and 2003. The English-language Warsaw Business Journal summarizes the story as follows:

Zbigniew Siemiątkowski, head of Poland’s intelligence services from 2002–2004, has been charged with breaking international law in connection with an investigation into CIA “black sites” which were reportedly based in Poland and in which terrorist suspects were allegedly subjected to torture. Specifically, Mr Siemiątkowski is being charged with allowing the “illegal deprivation of liberty,” and the use of “physical punishment” on prisoners.

In an interview with television station TVP on Monday, Mr Siemiątkowski confirmed that the charges had been brought against him. “While in the prosecutor’s office I refused to answer questions and I shall continue to do so at every stage of the proceedings, including in court,” he said, pointing to issues of national security as his reason.

Polish criminal investigators believe that the CIA operated a covert prison at Stare Kiejkuty, just over 100 miles north of Warsaw, between December 2002 and September 2003. Abu Zubaydah, an American prisoner, has suggested that he was held at the facility and tortured with techniques that may have included waterboarding. Polish authorities have granted Zubaydah victim status for the purposes of their ongoing investigation, which seeks to identify and charge those who operated the facility, incarcerated people there beyond the boundaries of Polish law, and subjected them to torture and abuse. The probe has concentrated on the role played by Polish authorities who collaborated with the CIA. These officials have consistently told investigators that they had no access to the facility and did not know what the CIA was doing there. The U.S. Justice Department has refused to cooperate with the investigation.

Lawyers who have been monitoring the case note that after the criminal charges were filed, on January 10, 2012, the case was mysteriously transferred to a prosecutor in Krakow, who has not yet signaled whether he intends to proceed with the charges. Questions were raised concerning the propriety of this transfer at a hearing on the CIA’s renditions program before the European Parliament in Brussels on Tuesday.

CIA officials have consistently opposed the release of documents detailing their black-site operations, including a comprehensive but heavily redacted report produced by the CIA’s inspector general. They argue that such disclosures would be harmful to U.S. national-security interests. The investigation in Poland makes clear exactly the sort of harm that the CIA has in mind. Polish prosecutors are building a detailed chronology of the black sites, and are systematically identifying the people who worked there or otherwise supported its operation. American personnel aren’t likely to be charged, but Poles and non-American internationals will be fair game.

The Polish prosecutors are also likely sharing the fruits of their inquiries with other criminal investigators probing into CIA extraordinary renditions, including ones in Germany, Italy, Spain, and the United Kingdom. These investigations are menacing to the CIA, and they make the deployment to Europe of CIA personnel who were involved in the renditions program risky and problematic. And as the Associated Press has reported, those personnel appear generally to have advanced ahead of their peers, and now occupy some of the most senior positions at the Agency.

Merton: The Distortion of Dogma

Lluis Borrassa, St Peter Walking on the Water (1411)

It seems a little strange that we [Catholics] are so wildly exercised about the “murder” (and the word is of course correct) of an unborn infant by abortion, or even the prevention of conception which is hardly murder, and yet accept without a qualm the extermination of millions of helpless and innocent adults, some of whom may be Christians and even our friends rather than our enemies. I submit that we ought to fulfill the one without omitting the other.

—Thomas Merton, Cold War Letters, p. 38 (letter to Dorothy Day, Dec. 20, 1961).

The U.S. Department of Health and Human Services recently set out guidelines under which employers would be required to offer reproductive-health care to women, including coverage for contraception, sterilization, and abortion-inducing drugs. The nation’s Catholic bishops reacted with a concerted campaign in opposition, adopting the language of persecution and victimhood. The church, they asserted, was being forced to provide services it condemned as unethical and immoral. When President Obama pulled back from the initial proposal by stating that insurers would be required to provide such services, but that employers who objected—such as the Catholic Church and its social and health-care-service organizations—would not, the bishops continued their opposition. Their leader, Cardinal Timothy Dolan of New York argued that the government’s move was “an unwarranted, unprecedented, radical intrusion into the integrity of the church, the internal life of the church.” He delivered a homily that was a thinly veiled appeal for Catholics to support the G.O.P. at the polls; Cardinal Francis George of Chicago issued a similarly political pastoral letter.

These developments occur just as Europe has been rocked by yet another scandal involving sexually motivated barbarism by Catholic clerics—this one related to the castration of young men in the Netherlands in the Fifties. Moreover, Americans, and particularly American Catholics, have adopted an increasingly hostile view toward the attitudes of church fathers on sexual matters. The hierarchy is seen as virulently homophobic, despite its likely being heavily populated with homosexuals, its unconscionable behavior in covering up cases of sexual exploitation involving priests, and its misogynistic and demeaning attitudes toward women. Catholic candidates who seem close to the views of the hierarchy, like Republican presidential candidate Rick Santorum, don’t actually garner much support from American Catholics—many in fact mistake him for an evangelical Protestant based on his rhetoric. With elections just around the corner, it looks like another culture war is heating up, but this time the political dynamics seem weighted against the bishops.

The term “culture war” is used by Americans today to refer to a political strategy honed by the G.O.P. starting in the Seventies of appealing to religious conservatives by spotlighting such issues as gay marriage, abortion, and contraception use. However, the term relates back to the Kulturkampf of the nineteenth century, adopted by Otto von Bismarck to help Protestant Prussia “digest” the recently acquired majority-Catholic provinces of the Rhineland and Westphalia. Bismarck’s campaign included the Kanzelparagraph or “pulpit article”, which provided for the criminal prosecution of any Catholic priest who dared to discuss political matters from the pulpit—a step designed to block the Catholic hierarchy from pressing reactionary political views on their flocks. The judgment of subsequent historians is fairly clear, however: Bismarck lost the Kulturkampf. He overplayed his hand, and the Catholic hierarchy proved more than his equal in striking back. They threw their weight behind the Center Party (Zentrum), the forerunner of the modern Christian Democrats—the party of chancellors Angela Merkel, Conrad Adenauer, and Helmut Kohl, in fact the dominant party of modern German politics. The current Pope, Joseph Ratzinger—a former archbishop of Munich and Freising, and the man who has more than any other shaped the current politics of the Catholic Church—must be understood as a grandchild of the Kulturkampf, a man who insists that the church’s role should extend to the political world and that the church should not shy away from partisan engagement. In this sense, the Kulturkampf of nineteenth century Germany is linked with the culture war rising in America today.

Thomas Merton’s observations in a letter to the Catholic activist and writer Dorothy Day reveal his concern about precisely the kind of posturing we see in recent activism by Catholic prelates. He does not reject Catholic dogma related to abortion and birth control, but he questions why views expressed on these subjects are allowed to drown out other aspects of the church’s doctrine, effectively distorting that doctrine. The obsession with issues of human reproduction, pressed by men who have sworn an oath of celibacy, he suggests, delegitimizes views that might well be accepted as elements of a more comprehensive doctrine manifesting the church’s commitment to life and to the integrity and dignity of the individual.

The wisdom of Merton’s assessment is apparent in polling results today: the community of the faithful has arrived at a different view from the hierarchy. And whatever delusions the hierarchy may entertain, the community in the end constitutes the church. The current campaign risks becoming not just a test of the hierarchy’s leadership capacity, but a demonstration of the untethering of the hierarchy from the body of the church, of their loss of moral authority in the eyes of their erstwhile flock.

Listen to Johann Sebastian Bach’s exhilarating and fugue-like double chorale, BWV 50, “Nun ist das Heil und die Kraft,” whose text is from Revelation 12:10:

Justice in Afghanistan

Early in the morning on Sunday, March 11, sixteen villagers were killed and five wounded in the Panjwai district of Kandahar Province, Afghanistan. The dead included nine children, four men, and three women, of whom eleven were from the same family. In one home, the bodies of the murdered members of a family had been dragged into a pile and set on fire. Reports about the incident rocked a country that was slowly returning to calm following the demonstrations and riots that had erupted over reports that U.S. military authorities at Bagram Air Base had collected and burned copies of the Koran. American officials quickly stated that the Panjwai incident was the work of a single gunman, whom they subsequently identified as Staff Sergeant Robert Bales from Joint Base Lewis–McChord, Washington.

The American media soon began running stories, apparently fueled by off-the-record statements from military public-affairs officers, that speculated on what caused Bales to go on a homicidal rampage. Remarkably little of the coverage came from the ground level in Afghanistan or offered the Afghan perspective. Media in Afghanistan and Pakistan, meanwhile, has been dismissive of U.S. claims that the crimes were the work of a sole gunman, stressing accounts of villagers who said they saw significant numbers of U.S. troops and a helicopter at the time of the incident (the U.S. insists that its forces were on the scene only in the wake of the killings). Afghan political leaders quickly demanded that the perpetrator be tried in Afghanistan, before an Afghan court, and they have complained that the U.S. is refusing to cooperate with their efforts to investigate the crime. These developments have the markings of another firestorm, which would be a tragic turn of events for Afghans interested in peace and stability, and for Americans and their NATO allies.

I have little doubt that the U.S. military-justice system can deal with an explosive high-profile case like Bales’s, but international media attention will provide the system with a rigorous test. American military and diplomatic leaders in Afghanistan will have a number of competing interests to juggle. One is the safety of U.S. and NATO forces. The recent incidents have badly damaged military–civilian relations in Afghanistan, and have fueled the Taliban’s propaganda mill. Officials will have to deal with the case in a way that sustains the value of the massacred civilians’ lives, and that acknowledges the suffering and grief of the survivors. These exigencies should not translate into a show trial for Sergeant Bales, which would only demean U.S. concepts of justice; rather, it means that the prosecution must be vigorous and well informed. U.S. commanders in Afghanistan should also offer ex gratia payments to the survivors, a practice that accords with Afghan traditional law (diyya), under which the commander of a soldier who does wrong may offer compensation on the soldier’s behalf.

It is not unreasonable for Afghanistan to want to try Bales. This was a heinous crime, it occurred on Afghan soil, and the victims were Afghan civilians. Moreover, as the facts are now understood, it did not occur within the scope of a combat mission. On the other hand, the United States has a reasonable interest, under the Uniform Code of Military Justice, in dealing with its own uniformed military personnel. Normally the question of criminal jurisdiction would be addressed by a Status of Forces Agreement (SOFA), but Washington and Kabul have never succeeded in coming to terms on such a document, so the issue is currently covered only by a vague exchange of diplomatic notes. The United States appears to have acted to preempt the Afghan claims by putting Bales on a jet to Kuwait and then—when the Kuwaitis objected to his presence in their country—to Fort Leavenworth, Kansas. But American authorities in Afghanistan shouldn’t lose sight of the fact that their fundamental mission is to help build a rule-of-law state. By exhibiting their lack of confidence in Afghanistan’s criminal-justice system and courts, they are operating at cross purposes with their mission.

It would be unreasonable to expect U.S. officials to surrender Bales for trial in Kabul, but they should cooperate with the Afghan authorities investigating the crime by sharing crime-scene reports, offering access to forensic evidence, and furnishing key witnesses for interviews. Failure to cooperate will only fuel Afghan suspicions about America’s intentions.

What the Stevens Case Tells Us

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public. However, at the time the conviction was voided, the presiding judge in Stevens’s case, Emmet Sullivan, appropriately wary of the department’s ethics office, appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Schuelke’s 525-page report was released, over the loud objections of DOJ lawyers. The report revealed gross misconduct by the prosecutorial team, stretching over the entire course of the case and reaching into the upper echelons of the department. It concluded that there had been “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’s] defense.”

The report, though it is focused on the conduct of prosecutors and not the guilt or innocence of Senator Stevens, leaves the clear impression that had the DOJ accorded fundamental notions of fairness any role in the case—as opposed to careerism and political bloodsport—it might never have gone to trial. Among the more noteworthy conclusions were these:

• Prosecutors secured and introduced testimony that they had clear reason to believe was perjured. Indeed, this testimony was the key evidence in their case. They also hid from the defense evidence that would have demonstrated the perjury.

• Prosecutors also concealed from the defense the fact that their star witness had perjured himself in an earlier case, when they knew this evidence would have demolished his credibility.

• FBI agents working with prosecutors failed to follow standard FBI procedure while making written notes of their witness interviews—apparently, they did so only when it was clear that the interviews would on balance help the defense.

• Prosecutors touted from the outset claims that Stevens had accepted free renovations to his home in Alaska, planting stories to that effect in several publications. The prosecutors knew these claims were untrue because they had in their possession written evidence that Stevens had repeatedly demanded a bill and insisted on paying for the work. The prosecutors also introduced bogus evidence designed to inflate the costs of the renovations, in order to make the scope of the work seem greater than it actually was.

This information would have remained hidden forever but for Judge Sullivan’s appointment of a special prosecutor—a highly unusual move. The report shows, as conservative columnist George Will aptly suggested, that if the Stevens case did genuinely involve corruption, then much of it was lodged deep inside the Justice Department itself.

DOJ spokesmen are laboring to minimize the damage from this report. They will stress that this was a single incident. But in fact, hardly a week passes without reports of scandalous misconduct by prosecutors involving the suppression of exculpatory evidence. And for every case that surfaces, probably ten do not, because a cloud of prosecutorial privilege envelops their conduct, shielding it from view. The Stevens case isn’t even the worst example of prosecutorial misconduct in corruption cases involving public officials, though it is typical in terms of the complaints that it raised.

The case involving former Alabama governor Don Siegelman, for instance, features both more serious and better documented instances of wrongdoing by prosecutors. The conviction is still pending in that case, with the Justice Department steadfastly arguing, in the face of mounting evidence, that it did nothing wrong. A member of the prosecution team has openly admitted that prosecutors cajoled, coached, and pressured two key prosecution witnesses to give false or misleading evidence—in one case conducting more than seventy intimidating interviews. She also acknowledged the existence of a binder filled with notes recording some of these sessions, which would have furnished powerful exculpatory evidence, and which might well have led a judge to bar the testimony entirely, but was withheld from the defense. Prosecutors initially misled the court about the existence of the binder, then conceded that they had it but wouldn’t turn it over. The prosecutor who arranged and oversaw the entire matter was in fact the wife of the man managing the campaign of Siegelman’s opponent—a hair-raising violation of prosecutorial ethics, which could have justified her removal from office and even her prosecution. When her role was exposed, she made a pretense of recusing herself from the case, though one of her own staffers acknowledged that she continued to run it. Senior figures in the Justice Department, notably David Margolis, dismissed concerns about this reprehensible conduct—apparently feeling that any acknowledgement of wrongdoing would tarnish the department as a whole. They then stonewalled the House Judiciary Committee’s efforts to investigate the matter and blocked production of materials sought under the Freedom of Information Act.

The major difference between the Siegelman and Stevens cases is simple: the Stevens case was presided over by Emmet Sullivan, one of the nation’s most respected federal judges. When he sensed that something was wrong with the prosecution’s handling of the case, he pressed them on it, and when it was clear that prosecutors had lied to or misled him, he appointed a special prosecutor to investigate their misconduct. In the Siegelman case, by contrast, the judge attempted to press the same sort of questions that Emmet Sullivan did, but prosecutors responded by maneuvering, through bizarre sleight of hand, to bring their case to a different district before a judge who they fully knew had a grudge against Siegelman—a highly unethical maneuver that paid off handsomely.

These facts help explain why, as the Wall Street Journal reports, more than 100 former state attorneys general from both political parties have joined in a brief asking the Supreme Court to overturn the Siegelman conviction—a historically unprecedented campaign. George Will recently backed the initiative.

Throughout America’s history, U.S. attorneys with deep ties to local political interests have attempted to leverage their prosecutorial powers to gain political advantage. There is really nothing surprising about that. The Department of Justice in Washington has generally worked hard to ferret out cases of abuse and bad judgment. The truly alarming thing about the Stevens and Siegelman cases is that senior prosecutors in Washington pressed the cases forward, excited at the prospect of a high-profile conviction.

Predictably (and dishonorably), blame has been laid on the most junior lawyers on the team, including a young man who committed suicide, fearing he would be scapegoated. Yet the most serious and consequential failure in these cases was inescapably a lack of oversight and good judgment at the top. As the report puts it, “[T]he role of the [head of the Criminal Division] in the management of the prosecution contributed to the failures of effective supervision of the trial team by the leadership of the Public Integrity Section.” Lanny Breuer took charge of the Criminal Division in 2009 with an excellent opportunity to address these problems systematically, in a way that would restore confidence in the DOJ. At this point, we have no evidence to suggest that he took this problem very seriously, and indeed he delivered speeches attacking the defense bar for claiming that there was a problem. Under his stewardship, the Criminal Division continues to play the same sordid games of denial and cover-up that it did under his predecessors.

A Congressional inquiry into the systematic misconduct inside the Criminal Division is necessary, as is legislation, such as the bill recently proposed by Senator Lisa Murkowski (R., Alaska), that would sanction prosecutors who withhold exculpatory evidence. The Department must be challenged on its persistent whitewashing of ethics violations, and on its obstinate refusal to punish prosecutors who engage in acts that might well be prosecuted if they were done by defense counsel. The Justice Department says constantly that it “takes its disclosure duties seriously,” but its conduct plainly establishes the opposite. The Department’s credibility and integrity are now plainly on the line.

The Man Without a Face: Six Questions for Masha Gessen

Masha Gessen, © Svenya Generalova

Vladimir Putin is emerging as an iconic figure for Russian politics in the period following the collapse of the Soviet Union, but he remains rather mysterious even at home, and widely misunderstood abroad. Now Russian-American journalist Masha Gessen has completed a comprehensive and penetrating look at the experiences that shaped Putin and the character of his stewardship of Russia. I put six questions to Gessen about her new book, The Man Without a Face: The Unlikely Rise of Vladimir Putin:

1. Vladimir Putin has been elected once more as president of the Russian Federation, but this time observers say the outcome was marked by extreme fraud. How do you expect Putin to cope with a growing opposition that increasingly includes urban elites once close to him?

The smart thing to do would be to institute some reforms—this would pacify some of the protesters and possibly even effectively divide the movement. Outgoing president Dmitry Medvedev has indicated that he will introduce an electoral-reform package that would reverse some of the damage done in the Putin era, and he has indeed even formed a working group that includes at least one protest leader. So some optimists are hoping for a Gorbachev-style scenario, where the system slowly dismantles itself from the inside. I, however, hold out little hope for that. I think Putin will find it too difficult to resist his natural urge to punish the opposition and tighten the screws in the hopes of preventing further protest. And this, I think, will ultimately speed up his demise by consolidating and radicalizing the opposition.

2. Putin was a fisticuff-prone youth, pampered by his parents and accompanied by suspicious material wealth. What traces of this early life can be seen in Putin today?

Most of what we know about Putin’s early life is what he has chosen to tell us—he did spend his life in the secret police, after all. He has portrayed himself as aggressive, incapable of controlling his temper, and vengeful—all traits he has exhibited in his twelve years as the leader of Russia. His remarkable relationship to material wealth is a less well-controlled part of his public image. He was the only child in his first-grade class to sport a wristwatch—a luxury item even for adults in those days. As a college student, he appropriated the car his parents won in a lottery—a car they could have taken cash for instead, enough to get them out of the communal squalor in which they lived. He made relatively large amounts of money working summer construction jobs in the Far North (a common way to spend college summers) and kept all the money both times, once spending it all in a few days on the Black Sea coast and the next year buying an expensive overcoat for himself and a cake for his mother. As a grown president, he has also had trouble distinguishing the boundaries between what is and is not rightfully his, and has never learned to share.

3. From 1985 to 1990, Putin was stationed as a KGB officer in Dresden, where you note that he had dealings with West German radicals associated with the Red Army Faction. During this time, the RAF carried out the assassination of Deutsche Bank chairman Alfred Herrhausen, among other terrorist acts. Is there anything tying Putin to the RAF’s trail of assassinations and robberies?

I had a source claim that there was, but I was never able to corroborate what he told me. That is why I refrain from speculating on this in the book.

4. Who is Marina Salye, and how did she help you resolve the puzzle about the “missing years” in Putin’s biography?

Marina Salye is Putin’s oldest enemy. In the late 1980s, she emerged from the world of academia to become the most popular politician in Leningrad. She was a leader of the popular, pro-reform People’s Front, and she was elected to city council and became a leader there, too (though, sticking to her radically democratic principles, she chose not to seek the chairmanship). In 1992 she spearheaded a city-council investigation that concluded that Putin, as St. Petersburg’s deputy mayor, had embezzled or helped embezzle as much as $100 million. The council passed a resolution calling on the mayor to dismiss Putin and refer the case to the prosecutor’s office for investigation. Instead, the mayor dismissed the council, and ruled the city by decree for the next year. Salye became a professional organizer and eventually moved to Moscow.

When Putin suddenly rose to national prominence in 1999 and was running for president in 2000, she tried to draw attention to her old investigation, warning in one memorable article that he would become “the president of a corrupt oligarchy.” This uncannily accurate prediction was ignored by the public and by Salye’s old comrades from the pro-democracy movement, as was Salye herself (though she was not ignored by everyone). She was threatened—she refuses to say by whom or how—and she fled the city. Rumor had it she was in Paris, but I eventually found her in a tiny, semi-abandoned village in the woods not far from the Russia–Latvia border. She had been living there for a decade. She talked to me about her investigation (I had the report itself), allowed me to make copies of many important documents relating to corruption in the St. Petersburg city administration, and talked about that period in detail. On February 4 of this year, she emerged from her hideout to be the lead speaker at an anti-Putin protest in St. Petersburg.

5. After becoming president, Putin spoke of a “dictatorship of the law,” and when Dmitri Medvedev ran for the presidency in 2008, he criticized the cynicism and weakness of Russia’s legal culture and promised reform. This seems to have appealed to a whole generation of young Russians, who thought their nation was charting a new course. One of them was a young auditor named Sergei Magnitsky. What happened to Magnitsky and what does this say about the Putin government’s commitment to law?

I found the “dictatorship of the law” slogan disturbingly oxymoronic from the beginning: the law does not rule by dictatorship; the law serves as an arbiter. It facilitates deliberation and ultimately leads to justice. Or it should. But we got exactly what Putin promised: a corrupt system of law enforcement and the judiciary, which acts in concert with the executive branch to exert terror—just like a dictatorship would. Sergei Magnitsky uncovered a corruption scheme that allowed a group of tax-police officers to use the courts to steal several companies and then fraudulently obtain $230 million in tax returns filed on their behalf. When Magnitsky pushed for an investigation, he was jailed; when he persisted while in jail, he was tortured to death. He died in November 2009, at the age of thirty-six, in prison.

6. Galina Starovoitova, Anna Politkovskaya, Natasha Estemirova—repeatedly in recent decades, brave women who reveal Russia’s dark secrets have fallen to assassins. You are now one of Russia’s most prominent exposé journalists. Moreover, your writing reveals the unflattering side of a man known to hold a grudge. Are you concerned for your own safety?

I am sometimes. I wouldn’t say that I live in fear, but I have considered leaving the country. Then I decided he is the one who should leave.

The Drone War on Journalists

Yesterday I wrote about how the Obama Administration has insisted that its deal with Yemen’s dictatorship concerning the use of drones there is a secret, and how it has been wielding that specious claim to justify withholding publication of a controversial Justice Department memo that outlines the president’s supposed authority to order the assassination of an American citizen abroad. Now Jeremy Scahill has published an important study of what the Obama Administration is prepared to do to journalists who expose its hit operations in Yemen:

On February 2, 2011, President Obama called Yemeni President Ali Abdullah Saleh. The two discussed counterterrorism cooperation and the battle against Al Qaeda in the Arabian Peninsula. At the end of the call, according to a White House read-out, Obama “expressed concern” over the release of a man named Abdulelah Haider Shaye, whom Obama said “had been sentenced to five years in prison for his association with AQAP.” It turned out that Shaye had not yet been released at the time of the call, but Saleh did have a pardon for him prepared and was ready to sign it. It would not have been unusual for the White House to express concern about Yemen’s allowing AQAP suspects to go free. Suspicious prison breaks of Islamist militants in Yemen had been a regular occurrence over the past decade, and Saleh has been known to exploit the threat of terrorism to leverage counterterrorism dollars from the United States. But this case was different. Abdulelah Haider Shaye is not an Islamist militant or an Al Qaeda operative. He is a journalist.

Unlike most journalists covering Al Qaeda, Shaye risked his life to travel to areas controlled by Al Qaeda and to interview its leaders. He also conducted several interviews with the radical cleric Anwar al Awlaki. Shaye did the last known interview with Awlaki just before it was revealed that Awlaki, a US citizen, was on a CIA/JSOC hit list. “We were only exposed to Western media and Arab media funded by the West, which depicts only one image of Al Qaeda,” recalls his best friend Kamal Sharaf, a well-known dissident Yemeni political cartoonist. “But Abdulelah brought a different viewpoint.”

Indeed, a reporter covering hostilities is subject to special risks. Much of what a journalist does—photographing or videotaping battles, identifying and interviewing key actors in a conflict—can easily be confused with espionage or hostile military conduct. These risks are heightened in an unconventional-war setting in which forces do not wear uniforms and often hide their weapons. But this distinction is vital: a journalist does not actually participate in the conflict; he seeks information so that his readers will have a better understanding of what’s going on. Indeed, a really good journalist is particularly committed to ferreting out and exposing precisely those facts someone most wants to keep secret. Lord Northcliffe, the great British press baron, put it well when he said, “News is what somebody, somewhere wants to suppress; all the rest is advertising.”

The United States historically has made a careful practice of offering journalists the protection to which they are entitled under what international humanitarian law calls the principle of distinction. But this practice fell to the wayside during the years in which Donald Rumsfeld held sway over the Pentagon. The U.S. military’s seizure and mistreatment of my clients, Pulitzer Prize–winning AP photographer Bilal Hussain and CBS cameraman Abdul Ameer Younis Hussein, as well as numerous others during the Iraq conflict demonstrated a new, cruel, and unprofessional attitude toward journalists who offered battlefield coverage the Pentagon didn’t like.

Shaye had been systematically documenting the U.S. presence in Yemen and the fact that U.S. officials, starting with the ambassador in Sanaa, were lying about the targeted-killing operations. No doubt his activities presented a legitimate security threat to Americans operating on the ground in Yemen, and no doubt his work meant heartburn for the CIA, then struggling to keep the cover on a program which was essentially too large in scope ever to be plausibly covert. However, the essence of his work was legitimate, indeed highly important journalism. This case points to more shameless misconduct by an intelligence community committed to using the heavy hand of the state in order to battle truth. And it points to a White House seemingly unable to understand how it is being spun.