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Saturday, August 02, 2003

Episcopal Priest Calls for Truth on Gay Clergy

Tony Adragna
For those who have been following the story of Rev. Gene Robinson's nomination to Bishop Coadjutor — basically, assitant bishop — of the Episcopal Diocese of New Hampshire, today's update has a great bit of quotage as the last graf
"We all know, or should know, that Gene Robinson is not the first [gay] man in a committed relationship in the House of Bishops. He is the first to be honest about it," said the Rev. John Zamboni, a priest in New Jersey. "The time for dishonesty in the church is over."

Bush Brothers' Family Fued...
... It's Just Gotta Be 'Bout Cuba!

Tony Adragna
Brother Jeb says "it's just not right", the Cuban exile community feels treacherously betrayed, and I'm hoppin' mad. Read it yourself
MIAMI, Aug. 1 -- The rare occasion of Florida Gov. Jeb Bush criticizing the administration of his brother, President Bush, for negotiating the return of 12 suspected hijackers to Cuba is adding intrigue to the courtship of Cuban American voters considered crucial in next year's presidential election.

Jeb Bush told the Miami Herald in an interview published today that "despite the good intentions of the administration to negotiate the safety of these folks, that is an oppressive regime, and given the environment in Cuba, it's just not right."

The suspected hijackers, 11 men and one woman, were intercepted by U.S. patrol ships July 15 after allegedly seizing control of a Cuban boat and heading toward Florida. The capture prompted impassioned pleas from exile leaders, who hoped the suspected hijackers would be prosecuted in the United States...

During a South Florida campaign trip this week, Sen. Joseph I. Lieberman (Conn.), a Democratic presidential candidate, called the decision to return the suspected hijackers to Cuba "a setback for America's best values."

Sen. Bill Nelson (D-Fla.) said the Cubans should never have been sent back and that he has requested an investigation by the Senate Foreign Relations Committee...

"This community made a substantial commitment to the president. We're not only not getting what we were promised, we're getting treated worse," Joe Garcia, executive director of the Cuban American National Foundation, said today. "When commitments aren't lived up to, then action needs to be taken."
Of course, the story notes that the Administration "favored sending the suspects to a third country," rather than back to Cuba. But that didn't happen. Instead we negotiated with the thug Castro. Why not keep the hijackers here?
White House spokesman Scott McClellan said today that the president agrees with his brother that Cuba's government is oppressive. But McClellan said the U.S. policy on Cuba is clear when it comes to "wet feet, dry feet," referring to the policy under which Cubans who reach U.S. soil are automatically allowed to stay; those caught at sea are sent home.
Besides this "wet feet, dry feet" policy being stupid, there's something else wrong with where the government went on this. If Mr. Bush didn't want to send these folks back to Cuba, yet he didn't want to make an exception to the policy, then all he had to do was try them here.

The crime, an act of piracy on the high seas, is a matter of universal jurisdiction — that's keeping them here for some other policy reason [like, maybe, something related to deterring piracy by prosecuting such acts?], not making an exception to the "wet feet..." policy.

Back to why the "wet feet..." policy is stupid. OK, I realize that there's some rationale policy reason[s] — the best I can think of is to dissuade escapees from attempting an unsafe en masse passage [some try on rafts that can hardly even be called rafts, others try on overloaded boats that are oft unseaworthy to begin with]. But I still think it's a strupid policy, and I share Sen. Lieberman's logic in making my assertion...

Friday, August 01, 2003

Did the U.S. Just Commit a War Crime?...
You Be the Judge, but Hear the Case First...

Tony Adragna
Several days ago Bill Herbert asked for my "legal opinion" of the action reported in the story he quoted. Gut reaction: "The note is unseemly, but the action doesn't cross the line in my opinion"[quoting my email to Bill] — in other words, as Tacitus puts it in response to a commenter, "a purely aesthetic objection," but not a legal objection.

I thank Bill for the further email pointing me to the discussion at Tacitus'. I've examined the facts & circumstances to the extent that they are known, read the arguments, reviewed the documents cited as authority, and given a couple of days of thought to the question presented: Was this a case of "hostage taking" in violation of both international and U.S. law?

Can't say a whole lot about the facts of the case — we haven't heard but what's in those two grafs pulled from the middle of a longer story. We do know that the wife & daughter of an Iraqi general were detained by the U.S. military. We know that a note, which is reported to read "If you want your family released, turn yourself in," was left at the family's residence. And we know that the general did turn himself in within 48 hours.

A senior U.S. military officer states that the detention was for questioning on the Iraqi general's whereabouts. He further states that, notwithstanding the note, the family members "would have been released in due course", presumably after determining that they had no knowledge of where the general was keeping himself. There is nothing illegitimate about such a detention & questioning so long as there's no attempt to compel cooperation from the detainees — neither detention nor questioning are themselves considered compulsion.

If the detention was not for the stated purpose, but was for the purpose of compelling a third party — the sought after general — to turn himself in, then the action was illegal regardless of whether we left a note. It's not the note that makes the act a "hostage taking." Rather, it's the intent to detain for the illegal purpose that makes the detention an act of "hostage taking."

I don't think there's any disagreement with my "regardless of whether" verbiage, but I'm positive of dispute with the "not the note" assertion. Some folks, in their comments to Tacitus' entry, argue that even if we had legitimate reasons to detain the general's family, the note makes the detention illegal. How so, I wonder? If we had no intent to detain the family illegally, but we left the note as a ruse to make the general believe the worst, have we actually done something illegal?

The response to my question is that such a ruse is not a legitimate ruse. But, I've seen no good argument supporting the assertion of its illegitimacy. The only illegitimate ruses I'm aware of are those involving the abuse of protected status to lure an adversary into a false belief that there's no danger. There's nothing at international law that makes illegitimate a ruse luring the opposition into a false belief that some danger presents.

Protocol I does, at Article 75 ¶2(e) include a prohibition against "threats to commit [the taking of hostages]." But, there's no discussion of what constitutes a "threat" — is the statement sufficient absent any showing that there was intent to follow through, or must there be an actual threat?

And, while the U.S. is bound to Geneva IV, and to principles underlying Protocol I, we aren't bound to the protocol's regulatory scheme. To wit: where the protocol may be read to outlaw the use of a ruse that looks like a threat, such prohibition exists neither in Hague IV nor in Geneva IV[the former doesn't address hostage taking specifically, and the latter, at Art 34, prohibits "[t]he taking of hostages," but doesn't tackle whether you may employ the disputed ruse].

We are bound to the 1979 International Convention against the Taking of Hostages[pdf]. And there again is language that might support "the note" making the detention illegal. But that convention doesn't address the question of whether it's illegal to employ the disputed ruse when someone is legally detained for some legitimate purpose. Moreover, since it's an anti-terrorism convention, I'm not so sure that the way Tacitus' commenters understand the conventional definition of "hostage" & "hostage taking" is as universal an understanding as they'd like to suggest.

The adverts to UCMJ and the U.S. Army Field Manual only prove that hostage taking is illegal under U.S. law, but don't prove that the action in question here was in fact a hostage taking.

So far I'm not convinced that there was a violation of either international or U.S. law — not in spirit nor letter. The only thing I'm convinced of is that lots of people are wanting to make a big deal out of an incident that doesn't deserve the attention.

Tuesday, July 29, 2003

What was known before 9/11?...
A lot, apparently, but nobody knew that they knew...

Tony Adragna
Just finished reading the REPORT OF THE JOINT INQUIRY INTO THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001, which explains why I've been away for so long. Rather than walk through the Inquiry's Findings & Conclusions[pdf] — thoughly discussed in Part 1[pdf] of the report — I'll just offer some of my own conclusions — starting with an oft asked question — based on a reading of the entire report.

Why no head rollage? While the FBI's ball droppage has been the focus of much criticism here and in other places, the Bureau's failure's are in the context of a much bigger story of failure throughout the entire Intelligence Community (IC). Head rolling would be impractical as too many heads would be implicated.

Ball droppage starts with the IC's failure to recognize from 1998 onward that signs were pointing toward an attack inside the US & suggestions that an attack would involve the use of aircraft as weapons. Instead, the majority of counterterrorism folks focused on the "98 percent" probability of an attack on America's overseas interests. There's a boulder set at the hill's top, we're in the path, but everybody's looking at the next hill over.

Among the leadership of the IC, the only person not implicated is Director Mueller, who had just taken over the FBI on Aug 2, 2001.

What balls were dropped? From a reading of the Factual Findings, it's clear that there were some fatal failures to act. CIA passed on at least 4 opportunities to "watchlist" Mihdhar, and 3 re Hazmi. In March 2000 the CIA had information that Hazmi was in the US, but didn't inform FBI — it's this period of time during which Hazmi & Mihdhar were in contact with the Bureau's San Diego informant.

I think it a bit counterfactual to suggest that FBI would've been more aggressive in its approach to FISA [more on FISA below] had the Bureau known of these two thugs' presence, but they certainly might've taken a closer look at al Qaeda related FISA surveillance that was already in progress & maybe pushed harder for info from informants.

The CIA's failure here sets the boulder rolling downhill.

FBI's systemic problems with FISA — misconstruction of FISA's requirements & misapprehension of "the wall" — leads to failures to act in two specific instances in August 2001. The Moussaoui case I've covered in sufficient detail — I'll just note here that the FBI's General Counsel admits that himself & others were wrong at the time vis a vis what FISA required [see Part1, page 25, pdf].

At the same time that FBIHQ was making folks in Minneapolis jump through hoops, they were erecting a FISA "wall" around information that had nothing to do with FISA [ibid, page 84] — this prompts the "someday someone will die" e-mail.

FBI's FISA troubles also resulted from some "risk aversion". Remember that in the Summer of 2000 prosecutors working the East Africa bombing case brought to the FISA Court's [FISC] attention certain factual errors in applications. As several months go by, more errors are brought to the FISC's attention, leading the FISC to bar an agent from appearing before it. To ensure the accuracy of future filings, FBI & DOJ start of review of the entire FISA process. Guess what happened during the review?

If you guessed that FISA orders were allowed to expire, you're correct. It gets worse — though the review was completed in October 2000, and new procedures regarding the review of draft FISA applications & a streamlined "standard al-Qa'ida FISA application" were put out in April 2001, between March and sometime after September 11 something between every single one of 'em and two thirds of all FISA orders targeting al Qaeda were allowed to expire. This at the very moment in time when we needed as much information as hands could be gotten on.

The Phoenix Memo This guy wasn't just going with a gut instinct on activity that appeared suspicious — read the memo[page 111 et seq of the appendices]. It's full of info from cases that had already been worked, names [including a redacted list], and a reminder of something that other folks were already aware of — "significant UBL associates/operatives living in... Arizona."

This memo should've been jumped on & widely disseminated to the entire IC. Instead, it was treated in the same way it was routed — as "routine."

Could 9/11 have been prevented? Again, a bit of a counterfactual — 9/11 wasn't prevented. But, the more I think on it, the answer has to be, in my opinion: Yes, if folks were paying attention, and doing their jobs instead of being worried 'bout covering their asses, then the attacks could've been prevented. It's not as if this was the first time that the counterrorism community ever faced a foe, and winning wouldn't have been a first, either.

That's still a long way from concluding that the attacks would've been prevented. Sometimes even the best prepared defense fails. Unfortunately, and with consequences tragicaly fatal, we seem to have let the guard down prior to 9/11...