a citizen’s journal by Thomas Nephew

Killer sky robots — sorta like mowin your lawn

Posted by Thomas Nephew on 24th October 2012

“The problem with the drone is it’s like your lawn mower,” said Bruce Riedel, a former CIA analyst and Obama counterterrorism adviser. “You’ve got to mow the lawn all the time. The minute you stop mowing, the grass is going to grow back.”
Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists (Miller, WaPo, 10/23/12)

“An right now the level of torture talk has gone from ‘Torture: Bad!’ to ‘Torture: Bad, But Not As Bad As Saddam Hussein’ to ‘Torture: Bad, But What About Ticking Bombs?’ to ‘Torture: Bad, But Not Necessarily Proof That The People Who Ordered Torture Are Bad’ to ‘Torture: We Still Talkin Bout Torture?’ to ‘Torture: Bad?’ An before we get to ‘Torture: Sorta Like Mowin Your Lawn’ I think we should try as hard as we can to wake up.”
—  wake up (Fafblog!, 7/10/04)

That sure looks like a big swing and a miss for Fafblog now, doesn’t it.

The CIA is urging the White House to approve a significant expansion of the agency’s fleet of armed drones, a move that would extend the spy service’s decade-long transformation into a paramilitary force, U.S. officials said.

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A new national anthem

Posted by Thomas Nephew on 10th March 2010

Oh, say can you see by the dawn’s early light
at Camp No near the base where they’re helplessly screaming?
Whose broad stripes and bright stars now mock all human right,
O’er the TV we watched were so emptily streaming
And the talk shows that scare, the thugs who don’t care
gave proof of our fright and our morals so bare
Oh, say does that star-spangled banner yet wave
O’er a land no longer free and the home of the knave?

From Waterboarding For Dummies (Mark Benjamin,, 3/9/2010):

Self-proclaimed waterboarding fan Dick Cheney called it a no-brainer in a 2006 radio interview: Terror suspects should get a “a dunk in the water.” But recently released internal documents reveal the controversial “enhanced interrogation” practice was far more brutal on detainees than Cheney’s description sounds, and was administered with meticulous cruelty.

Interrogators pumped detainees full of so much water that the CIA turned to a special saline solution to minimize the risk of death, the documents show. The agency used a gurney “specially designed” to tilt backwards at a perfect angle to maximize the water entering the prisoner’s nose and mouth, intensifying the sense of choking – and to be lifted upright quickly in the event that a prisoner stopped breathing.

The documents also lay out, in chilling detail, exactly what should occur in each two-hour waterboarding “session.” Interrogators were instructed to start pouring water right after a detainee exhaled, to ensure he inhaled water, not air, in his next breath. They could use their hands to “dam the runoff” and prevent water from spilling out of a detainee’s mouth. They were allowed six separate 40-second “applications” of liquid in each two-hour session – and could dump water over a detainee’s nose and mouth for a total of 12 minutes a day. Finally, to keep detainees alive even if they inhaled their own vomit during a session – a not-uncommon side effect of waterboarding – the prisoners were kept on a liquid diet. The agency recommended Ensure Plus. […]

The CIA’s waterboarding regimen was so excruciating, the memos show, that agency officials found themselves grappling with an unexpected development: detainees simply gave up and tried to let themselves drown.

NOTE, 03/15, at my father’s suggestion: I do intend to disturb and discomfort readers with this post, but I do not intend to impugn that vast majority of soldiers, veterans, and others who’ve served this country with honor. Nevertheless, it is as a human being, a citizen, and in fact a patriot that I believe t
he practice and acceptance of torture — past or present — raises unavoidable questions about what our country now stands for, and therefore what its symbols now stand for. It does not detract from honorable service at all — rather the opposite — to say that this country was better than what some of its leaders have made of it, and that I hope it will be again someday.

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Treadstone, Yamamoto, or none of the above

Posted by Thomas Nephew on 16th July 2009

There are a number of issues to unpack from the news that the CIA had secret plans for assassination teams that it hadn’t divulged to Congress.

First and foremost, for the time being, it’s not yet clear (to me, anyway) just how operational-but-undisclosed the programs in question* became.  Not only did Panetta cancel a secret allegedly-not-yet-ever-used program, but he also felt he ought to report the issue to Congress — perhaps out of an abundance of caution, perhaps in close adherence to statutory requirements … or perhaps for other motives.  All I can find so far about his precise June 24 testimony to Congress is in a  June 26 letter by House Intelligence Committee members and others stating that

“Recently you testified that you have determined that top CIA officials have concealed significant actions from all Members of Congress, and misled Members for a number of years from 2001 to this week.”

Despite the word “actions” in that letter, a New York Times report by Mazzetti and Shane states that the plans “remained vague and were never carried out.” On the other hand, they were apparently specific enough that Panetta actually had something to “cancel” or “scuttle” — as one might indeed expect with something under discussion since 2001.  According to the L.A. Times,

“…as recently as a year ago CIA executives discussed plans to deploy teams to test basic capabilities, including whether they could enter hostile territory and maneuver undetected, as well as gather intelligence and track high-value targets.”

So this wasn’t just idle talk around the water cooler; time and money had been spent thinking about it — and it’s hard to believe you’d just “test” tracking “high value targets.” 

Given 9/11 and the ensuing authorization of military force by Congress, what would be wrong with hit squads focused (presumably) on Al Qaeda leadership?  I imagine I’ll be learning more about U.S. law in this regard — and of course definitive law should govern Panetta’s actions and congressional response.  But rather than lying low until then, I want to try to lay out the issues as I see them now.  I hesitate to do so, because the issue arguably exposes a bit of a seam in my own thinking; I hope everyone will feel free to comment on and disagree with any of the following.

Simply wrong, simply unsupervised, or both?
The broadest concern — one I once was unwilling to entertain at all — is that it’s violence, it’s extrajudicial, and it’s simply wrong.  I suppose I still disagree with this, though it’s a much closer call for me than it once was.  With an accountable chain of decision-making, command and oversight, this is a military option in a war.  We killed Yamamoto in World War II because he was in charge of trying to kill us, and because we saw a way to do it.  This seems similar: the United States was attacked, and Congress authorized “all necessary and appropriate force” against the attackers.

To me, intentional avoidance of legitimate oversight — if that is what happened — is the more troubling issue: that invites eventual errors and worse, it invites and signals abuse.  Adopting a term from the “Bourne” movie series, I’ll call this the “Treadstone” scenario — a secret program conducting unsupervised attacks on all kinds of targets, risking or committing errors in judgment about the necessity of such attacks, the possibility of freelancing for personal gain.  Who would object?  No one would even know.

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DOJ to Senate: oversight helps the terrorists

Posted by Thomas Nephew on 5th January 2007

Senator Patrick Leahy, the incoming chairman of the Judiciary Committee, has been trying for years to get information from the Bush administration about how it sees itself complying with federal laws and treaty obligations concerning the human rights of its detainees. Among Leahy’s specific requests (emphases added):

  1. Please produce any and all directives, memoranda, and/or orders, including any and all attachments to such documents, regarding CIA interrogation methods or policies for the treatment of detainees, including but not limited to the directive signed by President Bush governing CIA interrogation methods, or allowing the CIA to set up detention centers located outside of the United States.
  2. Please produce any and all Department of Justice directives, memoranda, and/or guidance, including any and all attachments to such documents, regarding CIA detention and/or interrogation methods, including but not limited to the August 2002 Memorandum from the Department of Justice’s Office of Legal Counsel to the CIA General Counsel regarding CIA interrogation methods (the “2nd Bybee memo”).

In a reply dated December 22, 2006, the Department of Justice denied those and similar requests (emphases added):

Your letter seeks documents and information concerning the extremely sensitive operational details about the CIA program, including the specific interrogation techniques employed in the CIA program. The Department of Justice is not in a position to disclose such documents and information. […]

In his address to the Nation, the President acknowledged the existence of the CIA program, but there are many details about the program that he did not, and could not, share publicly. One example is the specifice interrogation techniques that were authorized for use on these high-value terrorists. As the President explained, to disclose that sensitive operational information would be to “help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. … Al Qaeda seeks information on our interrogation techniques — their methods and their limits — and trains its operatives to resist them. We must avoid assisting their effort. […]

In addition, your letter seeks legal advice of the Department’s Office of Legal Counsel (“OLC”) concerning the CIA program. As the President explained to the Nation on September 6th, the Department of Justice “has reviewed the authorized methods [of the CIA interrogation program] extensively and determined them to be lawful. […] OLC opinions, as a general matter, consist of confidential legal advice, analysis, conclusions, and recommendations for the consideration of senior Administration decisionmakers. If such OLC opinions were subject to disclosure, the candor of that legal advice would inevitably suffer and separately, Executive Branch officials would be less likely to seek it. It is crucial to informed Executive Branch decisionmaking, and promoting compliance with all applicable legal requirements, that the confidentiality of this advice be preserved.

Via Marty Lederman (“Balkinization”) who writes (emphasis in original):

But even if such OLC advice is not made public, that is not a reason to keep it secret from the Senate Judiciary Committee, which is responsible for crafting legislation governing the subject matter of the advice (including whether the advice itself should be classified). At the very least, the other political branch ought to be aware of how the Executive branch interprets current legal limits, so that if the Executive branch’s views do not fairly reflect congressional intent, Congress can work to amend the law with full knowledge of what the problems are.

Lederman has worked for the OLC, and acknowledges there’s a debate with people he respects there about the potential “chilling effects of sunshine,” to coin a phrase, on OLC legal advice. Here, I disagree with him: it’s a fallacy to even begin that debate. The point of the Constitution and of the U.S. government is not to provide a hermetically sealed legal affairs office environment for the executive branch to ponder its business. It is to give confidence to the people of the United States that their will is being done, and that they and their rights are being protected.

That can’t happen if arguments like the above by the Justice Department win out. A United States Senator has made a legitimate inquiry into the highly questionable activities and legal advice within the executive branch. It will not do to say he’s on the wrong committee, it will not do to say that future advice will be less candid.* And it will not do at all to say “the President has explained” that informing a United States Senator of executive branch actions can not be allowed because it will help the enemy, or that the CIA methods were “determined… to be lawful” — by people he can hire and fire at will.

I think that far from helping terrorists, oversight like Leahy wants to conduct could help this country regain its bearings. Viewed properly, the rule of law, respect for human rights, and a system of checks and balances are assets, not liabilities, in fighting terrorism; they gain us allies instead of enemies. It’s time to give our own core values a chance again.

*Taking the question of candid advice by itself, for a moment, it seems to me the question used to taunt civil liberties advocates is finally a fair one: if what the Bush administration is doing is legal, what do they have to worry about? We’re not talking about the rights of an individual here, but about the obligation of one branch of government to accept oversight by another.

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Moral hazard

Posted by Thomas Nephew on 12th September 2006

Worried CIA Officers Buy Legal Insurance, R. Jeffrey Smith, Washington Post:

CIA counterterrorism officers have signed up in growing numbers for a government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing, according to current and former intelligence officials and others with knowledge of the program.

Even though lawsuits against federal employees for misdeeds in the course of their work are extremely difficult to win, it turns out that worries about civil liability were yet another early harbinger of the news to come in later years:

In December 2001, with congressional authorization, the CIA expanded the reimbursements to 100 percent for CIA counterterrorism officers. That was about the time J. Cofer Black, then the CIA’s counterterrorism chief, told Bush that “the gloves come off” and promised “heads on spikes” in the counterterrorism effort.

“Why would [CIA officers] take any risks in their professional duties if the government was unwilling to cover the cost of their liability?” asked Rep. Rob Simmons (R-Conn.), a former CIA officer, during congressional debate that year.

I don’t mean to seem holier than thou here. I don’t remember noticing this at the time, but I was angry, and worried, and wanted results. If I had seen a news item about this outlay, I may well have nodded my head and said, “let’s shield these guys from legal harassment” or some such formulation.

But insurance has another effect on worries like these. In an interview with Kai Ryssdal on the business radio show “Marketplace” this evening, Smith expanded on his Washington Post report:

RYSSDAL: What does the CIA tell you about this?

SMITH: They say that they recommend that employees take it. That it’s a prudent defense against the possibility of some kind of legal action against them. And that the number of people taking this insurance program has gone up, especially in the last two years, and especially among counterterrorism personnel. So, in effect, they are — I mean, I think that they’re doing this to put people’s minds at ease. They want people to feel that they can take more risks and pursue actions that are more bold without fearing the legal consequences and that’s why they recommend it.

(Emphasis added.) Smith uses the circumlocution of “boldness”, but he describes a classic case of “moral hazard“: questionable behavior made more likely because insurance mitigates its costs.

But of course this is not merely a secretive agency finding ways to take the edge off its employees’ worries, if not ease their consciences. This was Congress making a national decision to do so. And this was also most of us either sleeping through that, or shrugging our shoulders or even applauding it if we heard about it.

A kind of daisy chain of moral hazard connects us to those officers: just as they seek to avoid the full consequences of their actions, so do we when we abdicate our responsibilities to monitor and oversee and, when necessary, put a halt to our own government’s questionable practices, while demanding results supposed to make us safer.

The photograph to the right has had two meanings to me since the day I first saw it. First, of course, there’s the straightforward meaning: the attacks, the loss, and the sorrow of that day. But there’s also a second, symbolic one: liberties and values endangered, silhouetted against a backdrop of war and chaos; a brighter world’s day darkened.

I’m truly sorry to be dwelling on these things instead of just on the loss of all those poor people five years ago. But they aren’t paying the price for our mistakes since then, we are. Five years later, we’re defeating ourselves by ignoring our own values. We have to correct that, right the wrongs we’ve committed, and hold those who’ve ordered those wrongs accountable. Or we’ll surely continue to do our enemies’ work for them, and darken our own future.

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Lack of intelligence

Posted by Thomas Nephew on 4th October 2001

What went wrong, New Yorker article by Seymour Hersh: The CIA has been crippled by feel-good edicts about who to recruit overseas.

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