Please excuse a quick polemical comment before I post a report from The New York Times on the US military's handling of civilian deaths from drone attacks in Afghanistan.
If US commanders or, for that matter, President Obama really wanted to be up front and above board on this issue --- given our supposed campaign for “hearts and minds” in this conflict --- they would say: “Civilians die in war zones. They die from being caught up in the fight, even though they take no part in it. Civilians die from our tactics of unmanned planes firing missiles in this conflict. That is regrettable, but that is war.”
They would say that rather than pretending that these deaths --- which, let it be remembered, the US military denied at the time, just as they have initially denied on every occasion that they carry responsibility --- are the outcome of a one-off mistake by “rogue operators”.
The American military on Saturday released a scathing report on the deaths of 23 Afghan civilians, saying that “inaccurate and unprofessional” reporting by Predator drone operators helped lead to an airstrike in February on a group of innocent men, women and children.
The report said that four American officers, including a brigade and battalion commander, had been reprimanded, and that two junior officers had also been disciplined. Gen. Stanley A. McChrystal, who apologized to President Hamid Karzai after the attack, announced a series of training measures intended to reduce the chances of similar events.
The attack, in which three vehicles were destroyed, illustrated the extraordinary sensitivity to the inadvertent killing of noncombatants by NATO forces. Since taking command here last June, General McChrystal has made protection of civilians a high priority, and has sharply restricted airstrikes.
The overwhelming majority of civilian deaths in Afghanistan are caused by insurgents, but the growing intensity of the fighting this year has sent civilian casualties to their highest levels since 2001.
General McChrystal’s concern is that NATO forces, in their ninth year of operations in Afghanistan, are rapidly wearing out their welcome. Opinion polls here appear to reflect that.
“When we make a mistake, we must be forthright,” General McChrystal said in a statement. “And we must do everything in our power to correct that mistake.”
The civilian deaths highlighted the hazards in relying on remotely piloted aircraft to track people suspected of being insurgents. In this case, as in many others where drones are employed by the military, the people steering and spotting the targets sat at a console in Creech Air Force Base in Nevada.
The attack occurred on the morning of Feb. 21, near the village of Shahidi Hassas in Oruzgan Province, a Taliban-dominated area in southern Afghanistan. An American Special Operations team was tracking a group of insurgents when a pickup truck and two sport utility vehicles began heading their way.
The Predator operators reported seeing only military-age men in the truck, the report said. The ground commander concurred, the report said, and the Special Operations team asked for an airstrike. An OH-58D Kiowa helicopter fired Hellfire missiles and rockets, destroying the vehicles and killing 23 civilians. Twelve others were wounded.
The report, signed by Maj. Gen. Timothy P. McHale, found that the Predator operators in Nevada and “poorly functioning command posts” in the area failed to provide the ground commander with evidence that there were civilians in the trucks. Because of that, General McHale wrote, the commander wrongly believed that the vehicles, then seven miles away, contained insurgents who were moving to reinforce the fighters he and his men were tracking.
Yesterday we featured Gregg Carlstrom's incisive comment that, months after the loudly-trumpeted US "offensive" in Helmand Province, the Taliban might be re-establishing influence in Marjah. Part of Carlstrom's analysis was based on an article by Dion Nissenbaum of McClatchy News Service, including this comment from the US commander in Afghanistan, General Stanley McChrystal (pictured), as he toured Marjah, "This is a bleeding ulcer right now."
Dear Mr. [Mark] Seibel [McClatchy managing editor],
I am writing to you today so that we might come to some agreement about what this command views as a mischaracterization in Dion Nissenbaum's article entitled "McChrystal calls Marjah a 'bleeding ulcer' in Afghan campaign" and other variations on that theme.
The key part of that dialogue that Dion witnessed was "You don't feel it here, but I'll tell you, it's a bleeding ulcer outside." That would have been further clarified by the quote Dion asked to use (which did not appear in the final edited copy) about Gen. McChrystal being asked in Europe and the U.S. whether we are failing. The essence of the comment is not that Marjah itself is going badly: as he said to Dion in a follow on interview on the plane ride back to Kabul — it's largely on track. It's that it's misperceived to be going badly. It's a distinction, but one I'm sure you grasp and one that could have been better conveyed, even accounting for the motive of wanting to generate interest in the story using the sensational quote: "McChrystal calls for action against perceptions of 'bleeding ulcer' in Marjah," etc....
Based on the exchange between Dion and Gen. McChrystal's personal PAO, Lt Col Tadd Sholtis, we had every reason to expect a story about mixed progress throughout Central Helmand and an effort to keep operations moving at as rapid a pace as possible against the various challenges. Instead, post-editing, one must read some 14 paragraphs into the story in order to get anything that suggests the picture is mixed, and you need to go 40 paragraphs into the story in order to get anything that explains Gen. McChrystal's actual intent in the dialogues quoted. The elements of a balanced story are there, but with the way it's organized we didn't get one....
Respectfully,
Gregory J. Smith, Rear Admiral, USN DCOS Communication NATO International Security Assistance Force Afghanistan
Note the rather strained effort by the military's PR staff to put up even a "mixed" situation --- a sharp contrast to the declarations of victory last autumn. Roy Gutman, McClatchy's foreign editor, strips away the rhetoric in his reply to Smith:
In the context of the [article's] opening anecdote, which suggested that outside pressures are intense and political leaders have limited patience, the further exchange Gen. McChrystal had about force levels and the facts on the ground, Marjah is a very problematic place in the short term. It adds up to being a "bleeding ulcer."
We were talking about the Kandahar offensive (sorry, process) after the interview, which elicited a laugh from Zaeef. He held out his right hand to signify the US troops pushing into Kandahar, then drew a semicircle in the air to symbolize the Taliban. "They will not find us in Kandahar. We will go around them and attack them from behind."
There aren't enough U.S. and Afghan forces to provide the security that's needed to win the loyalty of wary locals. The Taliban have beheaded Afghans who cooperate with foreigners in a creeping intimidation campaign. The Afghan government hasn't dispatched enough local administrators or trained police to establish credible governance, and now the Taliban have begun their anticipated spring offensive.
McChrystal blames Marja's persistent insecurity on an insufficient number of troops. That's certainly part of the problem: 15,000 troops is an awfully small number to secure a sparsely-populated province like Helmand. A larger NATO presence would help keep the Taliban from returning.
But notice one of the key points in Nissenbaum's article: the Taliban are returning, meaning that the much-hyped operation in Marja didn't significantly weaken the Taliban in southern Afghanistan -- it simply displaced them. The US could send more troops to Helmand, but those troops (like the entire ISAF mission) would be on a finite timetable. The Taliban could simply wait them out, as they've done during prior Helmand offensives.
EA correspondent Josh Mull the Afghanistan Blogging Fellow for The Seminal and Brave New Foundation. He also writes for Rethink Afghanistan:
Congratulations US media, you've had a very successful couple of weeks. Your control over the public discourse on the recent Congressional elections is strong. The cretaceous values of Rand Paul, the victor in the Republican Senate primary in Kentucky, are balanced and justified by saying there aren't a lot of black folks in that state. A former Navy admiral and current US congressman, Joe Sestak from Pennsylvania, becomes "a Washington outsider".
To complete the hat trick, you have established the narrative of the partisan insurgency. That means you get to portray both parties as going through some kind of ideological purge. Too progressive! Not conservative enough! What does that mean, and what does it have to do with actual issues and real policy? Who cares, right? Bor-ing!
And you have completely blocked the issue of the war in Afghanistan.
Now this is a big accomplishment, for sure. But you've made a lot of good people fighting for real change look like jerks for carrying water for your narrative, so you're going to want to protect it very carefully. Accordingly, here are a couple things you should avoid in your story.
Moving forward with the idea that the war-supporting candidates you choose to cover are somehow against the "status quo" is going to be very tricky, so make sure to follow these instructions explicitly. We can't blow the whole operation and have everybody actually engaging themselves in civics --- it might bring the collapse of Western Civilization. With that, here are your marching orders:
DON'T mention the cost of war is $1 trillion, trillions more in indirect costs, and is a major factor in our economic and debt crises.
You don't want people knowing about all the things that money could pay for. Things are much easier when you tell Republicans that a trillion dollars in debt is actually small government and fiscal conservatism. Democrats need to think President Obama is fixing the economy, not disemboweling it with a massive, off-budget spending spree for war. If you absolutely must discuss the cost of war, please only do it in the stupidest, inaccurate way possible, like complaining that troops get paid too much.
Candidates for U.S. House of Representatives: Nick Coons, AZ-05, Tempe/Scottsdale, Libertarian Rebecca Schneider, AZ-06, Phoenix, Democrat Carol Wolman, CA-01, northwest corner, Green Clint Curtis, CA-04, northeast corner, Democrat Ben Emery, CA-04, Nevada City, Green Mark Williams, CA-12, San Carlos, Libertarian Mary V. Larkin, CA-17, Monterey, Libertarian Les Marsden, CA-19, Yosemite/Mariposa, Democrat Randall Weissbuch, CA-26, Arcadia, Libertarian Marcy Winograd, CA-36, Los Angeles, Democrat William Hedrick, CA-44, Riverside/San Clemente, Democrat Ken Arnold, CA-46, Orange and L.A., Democrat Mike Paster, CA-49, Fallbrook, Libertarian Tracy Emblem, CA-50, San Diego, Democrat Michael Benoit, CA-52, San Diego, Libertarian Gary Swing, CO-01, Denver, Green G. Scott Deshefy, CT-02, New London, Green Doug Tudor, FL-12, Riverview et al, Democrat Marleine Bastien, FL-17, North Miami, Democrat Regina Thomas, GA-12, Savannah, Democrat Matt Reichel, IL-05, Chicago, Green Bill Scheurer, IL-08, Lindenhurst, Green / Independent Rodger Jennings, IL-12, Alton, Green Doug Marks, IL-14, Carpentersville, Libertarian Sheldon Schafer, IL-18, Peoria, Green John Wayne Cunningham, IN-08, Terre Haute, Libertarian James E. "Jim" Holbert, KY-05, London, Democrat Peter White, MA-10, Cape Cod, Independent Michael Cavlan, MN-05, Minneapolis, Independent Progressive Kevin Craig, MO-07, Springfield, Libertarian Thomas Hill, NC-08, Fayetteville, Libertarian Lon Cecil, NC-12, High Point, Libertarian Jonathan Tasini, NY-15, New York City, Democrat Emin Eddie Egriu, NY-28, Buffalo, Democrat Ebert G. Beeman, PA-03, Lake Erie, Libertarian Vernon Etzel, PA-05, Oil City, Libertarian Ed Bortz, PA-14, Pittsburgh, Green David Segal, RI-01, Democrat Eric Schechter, TN-05, Nashville, Democrat Martin Nitschke, TX-23, El Paso to San Antonio, Libertarian John Jay Myers, TX-32, Dallas, Libertarian Claudia Wright, UT-02, Salt Lake City, Democrat Ron Fisher, VA-08, Arlington, Independent Green/Progressive Larry Kalb, WA-02, northwest corner, Democrat Diana McGinness, WA-02, Bellingham, Democrat Roy Olson, WA-09, Olympia, Green
Candidates for U.S. Senate: Duane Roberts, CA, Green John Finger, CO, Libertarian Bob Kinsey, CO, Green Cecile Lawrence, NY, Green Mel Packer, PA, Green Ben Masel, WI, Democrat (2012)
You need to think small. Three candidates last week were a full blown grassroots insurgency to you. These 53 (and counting) candidates would make your narrative look ridiculous. If three people who support the war are anti-establishment, what do you call 53 candidates who oppose the trillion-dollar price tag? If current Congressman Joe Sestak is "the fringe", where do you think any of these candidates will be in your story?
Just think about all the real grassroots movements, the constant, concerted effort it takes to field 53 candidates, across the political spectrum, all focusing their attention on the war. Those thoughts can be ruinous to your control over the debate, so banish them. You don't know what democracy looks like, so keep it that way. Only stick to safe, pro-war candidates (the three or so of them you have).
DON'T talk about the havoc we're wreaking on the military. Don't mention the death toll is at 1,000 (and is skyrocketing), that we're destroying their health, or that they have a terrible strategy and no alternative. Just keep patting them on the head, telling them, "you're doing a super job, buddy," and then sending them off to do a task you know they can't do but will thanklessly die trying to do.
Don't mention that non-military development works, or that even the slightest association with the military in Afghanistan is enough to destroy entire families. And no matter what, definitely don't talk about the suicides - the many, many, seemingly endless suicides. Support the troops, just don't pay any attention to them. It's a real bummer, and you've got a long campaign to cover. Keep happy thoughts --- they're heroes! DON'T ---maybe in this case that isn't strong enough --- never let Afghan voices to be heard. Afghans can be exotic aliens, Muslim fanatics, backwards tribalists, and genetically pre-disposed, xenophobic foreigner-killing machines. But they cannot be allowed to express themselves or have their own voice. They require foreign interference. They can't be trusted to tell their own story.
The same thing goes for Pakistan. Only allow debate to focus on whether we should be more aggressive with Pakistan, more assassinations and kidnappings, maybe some invading troops. Just ignore any notions about democracy. They have nukes and they're Muslim, end of story.
These are massively important foreign policy issues, some of them blatantly illegal, so no way can you let the people most affected by them anywhere near your media. You'll need that airtime to fact-check Stephen Colbert or something (horse race!). And anyway, we need to be able to parachute in un-sophisticated "Western" journalists to "embed" for like a day and a half and score sweet Twitpics of them posing in flak jackets in front of tanks, and soldiers behind a wall firing and/or reloading their machine gun for the nine zillionth time. That's what war has to look like, otherwise we'll see the icky parts and not want to spend all our blood and treasure on them. And that's bad.
DON'T let people know how much power they have. If they feel isolated and powerless, they'll eagerly swallow whatever pill you're selling. They're an insurgent because they voted for Rand Paul. Good for them. The best way for them to show they're angry at broken government is supporting a trillion-dollar, murderous occupation in Afghanistan. You don't want them to know there is an entire congressional caucus devoted to ending the war. Those are incumbents! Gross!
Don't mention that these slick Washington fat cats are working hard on bills to end the war and return the money to the American people. Don't talk about the Feingold bill in the Senate, the McGovern bill calling for an exit timetable, the impending $33 billion supplemental vote that many members of Congress are prepared to oppose.
Don't mention that pressure works. You can't let people know they have the power to reach out and grab a hold of their elected officials. Grab them and force them to accomplish real change. If they knew they could just pick up a phone and dial (202) 224-3121 and ask to speak to their representative, your entire enterprise of access and privilege would crumble overnight. Maintain that this is impossible.
Finally, you'll want to stay completely away from Rethink Afghanistan's Facebook page. If you were shocked and dumbfounded by health care town halls and the Tea Party movement, the tens of thousands of people working to end the war there on Facebook would just blow your mind. Acknowledging the vibrancy and diversity of the peace movement more broadly would destroy even your strongest efforts at "fair and balancing" the left/right paradigm. There are libertarians and conservatives, progressives and liberals, independents, moderates, and hardliners. All of them working together and working hard across party and ideological lines. Not even the most craven plutocrat lobbyist skulking in the bars and brothels of DC could water down that movement to some kind of partisan fringe.
And there are your instructions. Follow these exactly, and with any luck, you the media will remain stupid and this war will go on, destroying our country and theirs, for years and years to come.
Few issues highlight Barack Obama's extreme hypocrisy the way that Bagram [the US detention facility in Afghanistan] does. As everyone knows, one of George Bush’s most extreme policies was abducting people from all over the world -- far away from any battlefield -- and then detaining them at Guantanamo with no legal rights of any kind, not even the most minimal right to a habeas review in a federal court.
Back in the day, this was called "Bush's legal black hole." In 2006, Congress codified that policy by enacting the Military Commissions Act, but in 2008, the Supreme Court, in Boumedienev. Bush, ruled that provision unconstitutional, holding that the Constitution grants habeas corpus rights even to foreign nationals held at Guantanamo. Since then, detainees have won 35 out of 48 habeas hearings brought pursuant to Boumediene, on the ground that there was insufficient evidence to justify their detention.
Immediately following Boumediene, the Bush administration argued that the decision was inapplicable to detainees at Bagram --- including even those detained outside of Afghanistan but then flown to Afghanistan to be imprisoned. Amazingly, the Bush DOJ [Justice Department] --- in a lawsuit brought by Bagram detainees seeking habeas review of their detention --- contended that if they abduct someone and ship them to Guantanamo, then that person (under Boumediene) has the right to a habeas hearing, but if they instead ship them to Bagram, then the detainee has no rights of any kind. In other words, the detainee's Constitutional rights depends on where the Government decides to drop them off to be encaged.
One of the first acts undertaken by the Obama DOJ that actually shocked civil libertarians was when, last February, as The New York Times put it, Obama lawyers "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embraci.ng a key argument of former President Bush’s legal team"
But last April, John Bates, the Bush-43-appointed, right-wing judge overseeing the case, rejected the Bush/Obama position and held thatBoumediene applies to detainees picked up outside of Afghanistan and then shipped to Bagram. I reviewed that ruling, in which Judge Bates explained that the Bagram detainees are "virtually identical to the detainees in Boumediene," and that the Constitutional issue was exactly the same: namely, "the concern that the President could move detainees physically beyond the reach of the Constitution and detain them indefinitely".
But the Obama administration was undeterred by this loss. They quickly appealed Judge Bates' ruling. As the New York Times described that appeal: "The decision signaled that the administration was not backing down in its effort to maintain the power to imprison terrorism suspects for extended periods without judicial oversight."
Today, a three-judge panel of the D.C. Circuit Court of Appeals adopted the Bush/Obama position, holding that even detainees abducted outside of Afghanistan and then shipped to Bagram have no right to contest the legitimacy of their detention in a U.S. federal court, because Boumediene does not apply to prisons located within war zones (such as Afghanistan).
So congratulations to the United States and Barack Obama for winning the power to abduct people anywhere in the world and then imprison them for as long as they want with no judicial review of any kind. When the Boumediene decision was issued in the middle of the 2008 presidential campaign, John McCain called it "one of the worst decisions in the history of this country." But Obama hailed it as "a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo," and he praised the Court for "rejecting a false choice between fighting terrorism and respecting habeas corpus". Even worse, when Obama went to the Senate floor in September, 2006, to speak against the habeas-denying provisions of the Military Commissions Act, this is what he melodramatically intoned:
As a parent, I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence....
By giving suspects a chance --- even one chance --- to challenge the terms of their detention in court, to have a judge confirm that the Government has detained the right person for the right suspicions, we could solve this problem without harming our efforts in the war on terror one bit....
Most of us have been willing to make some sacrifices because we know that, in the end, it helps to make us safer. But restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer. In fact, recent evidence shows it is probably making us less safe.
Can you smell the hypocrisy? How could anyone miss its pungent, suffocating odor? Apparently, what Obama called "a legal black hole at Guantanamo" is a heinous injustice, but "a legal black hole at Bagram" is the Embodiment of Hope. And evidently, Obama would only feel "terror" if his child were abducted and taken to Guantanamoand imprisoned "without even getting one chance to ask why and prove their innocence".
But if the very same child were instead taken to Bagram and treated exactly the same way, that would be called Justice -- -or, to use his jargon, Pragmatism. And what kind of person hails a Supreme Court decision as "protecting our core values" --- as Obama said of Boumediene --- only to then turn around and make a complete mockery of that ruling by insisting that the Cherished, Sacred Rights it recognized are purely a function of where the President orders a detainee-carrying military plane to land?
Independently, what happened to Obama's eloquent insistence that "restricting somebody's right to challenge their imprisonment indefinitely is not going to make us safer; in fact, recent evidence shows it is probably making us less safe"? How does our policy of invading Afghanistan and then putting people at Bagram with no charges of any kind dispose people in that country, and the broader Muslim world, to the United States? If a country invaded the U.S. and set up prisons where Americans from around the world where detained indefinitely and denied all rights to have their detention reviewed, how would it dispose you to the country which was doing that?
One other point: this decision is likely to be appealed to the Supreme Court, which serves to further highlight how important the [Elena] Kagan-for-[John Paul] Stevens replacement could be. If the Court were to accept the appeal, Kagan would be required to recuse herself (since it was her Solicitor General's office that argued the administration's position here), which means that a 4-4 ruling would be likely, thus leaving this appellate decision undisturbed. More broadly, though, if Kagan were as sympathetic to Obama's executive power claims as her colleagues in the Obama administration are, then her confirmation could easily convert decisions on these types of questions from a 5-4 victory (which is whatBoumediene was, with Stevens in the majority) into a 5-4 defeat. Maybe we should try to find out what her views are before putting her on that Court for the next 40 years?
This is what Barack Obama has done to the habeas clause of the Constitution: if you are in Thailand (as one of the petitioners in this case was) and the U.S. abducts you and flies you to Guantanamo, then you have the right to have a federal court determine if there is sufficient evidence to hold you. If, however, President Obama orders that you be taken to from Thailand to Bagram rather than to Guantanamo, then you will have no rights of any kind, and he can order you detained there indefinitely without any right to a habeas review. That type of change is so very inspiring --- almost an exact replica of his vow to close Guantanamo...all in order to move its core attributes (including indefinite detention) a few thousand miles north to Thompson, Illinois.
Real estate agents have long emphasized "location, location, location" as the all-determining market factor. Before we elected this Constitutional Scholar as Commander-in-Chief, who knew that this platitude also shaped our entire Constitution?
UPDATE: Law Professor Steve Vladeck has more on the ruling, including "the perverse incentive that today's decision supports," as predicted by Justice [Antonin] Scalia in his Boumediene dissent: namely, that a President attempting to deny Constitutional rights to detainees can simply transfer them to a "war zone" instead of to Guantanamo and then claim that courts cannot interfere in the detention. Barack Obama quickly adopted that tactic for rendering the rights in Boumediene moot --- the same rights which, less than two years ago, he was praising the Supreme Court for safeguarding and lambasting the Bush administration for denying. Vladeck also explains why the appellate court's caveat -- that overt government manipulation to evade habeas rights (i.e., shipping them to a war zone with the specific intent of avoidingBoumediene) might alter the calculus -- is rather meaningless.
UPDATE II: Guest-hosting for Rachel Maddow last night, Chris Hayes talked with Shayana Kadidal of the Center for Constitutional Rights about the Bagram ruling and Obama's hypocrisy on these issues, and it was quite good, including a video clip of the 2006 Obama speech I excerpted above:
And in The New York Times, Charlie Savage has a typically thorough examination of the impact of the ruling. As he writes: "The decision was a broad victory for the Obama administration in its efforts to hold terrorism suspects overseas for indefinite periods without judicial oversight." But GOP Sen. Lindsey Graham (author of the habeas-denying provision in the Military Commissions Act) "called the ruling a 'big win' and praised the administration for appealing the lower court’s ruling", and that's what really matters.
Sunday, May 30, 2010 at 8:45 
Please excuse a quick polemical comment before I post a report from The New York Times on the US military's handling of civilian deaths from drone attacks in Afghanistan.
