Prosecuting American Torturers

The decision whether or not to prosecute officials in the Bush administration who may have been involved in developing policies and their implementation that resulted in acts of torture may be the first great crisis to con front the Obamaadministration. It is a complicated problem and one with two distinct contradictory influences–legal and political. The two problems have become inextricably intertwined  in an increasingly heated partisan debate that obfuscates–possibly intentionally–the core issues and their resolution.

The two sides of the issue are distinct. With the rejoinder that the writer is not a lawyer, the legal case is fairly straightforward. The United States is a member of the United Nations Convention Against Torture (UNCAT). That international agreement, negotiated in the 1980s and ratified by the U.S. Senate in 1994 (thereby elevating its provisions to the status of law in the United States), and the United States, in acceding  to the statute, stated that it had domestic legislation in place providing for the illegality of and punishment for acts of torture as specified in the treaty.

The UNCAT provides a sweeping definition of torure: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a peraon” (Article 1). The convention further stipulates that prohibitions exist whether a state of war exists or not and covers both compbatants and non-combatants (Article 2) and specifically, in Article 3 (1) prohibits so-called “extreme rendition,” the practice of sending detainees to countries where torture is routinely inflicted. Anyone who has committed acts of torture against anyone is included in the definition and is thus potentially subject to prosecution by the International Criminal Court (ICC) at the Hague, a body of which the United States is currently not a member.

If the problem is viewed in strictly legal terms, the decision process is fairly straightforward and objective: if allegations of violations have been made (which they have), it is then a matter of determining the merits of those claims and, if the claims have legal merit under the statute, to prosecute those accused and see if they are found guilty. That is how the law is supposed to work; in practice, however, it is not so simple.

Legal objections to prosecuting former Bush officials (investigations that could, under the UNCAT, lead all the way up to the former President if he knew about or especially if he authorized acts of torture) have been based on the claim that the acts authorized and committed do not rise to the level of torture. One famous internal memo issued during the Bush administration suggested, for instance, that if the pain did not approximate death–whatever that feels like–it was not torture. Such a defense, of course, could easily be part of any legal proceeding. Determining whether there is a strong enough legal case has been assigned, quite correctly, to the Department of Justice. If its investigations remain strictly legal in nature, that should be uncontroversial.

It will not be, of course, because of the political dimension of the entire affair. Defenders of the Bush administration argue that the entire issue is a witch hunt, a form of political retribution against members of the last administration, and the witch hunt defense will become louder as the suggestions of culpability move higher in the administration. The Democrats, it is alleged, promised to look forward, not backward toward past events, and they are betraying their promise to look toward that future. Moreover, as former Vice President Cheney is so fond of reminding us, there were no terrorist acts against Americans after 9/11, and that it was the “enhanced interrrogation techniques” authorized by the administration that aided in the anti-terrorism campaign. Thus, national security considerations trump the niceties of the laws of war for a good cause.

The political objections are irrelevant in a strictly legal sense. The legal system has the purpose of deciding whether the law was broken and of prosecuting those accused of breaking the law. Huffing and puffing notwithstanding, it really is legally as simple as that. The decision whether or not to pursue the legal path is, however, political. A decision to ignore the evidence of possibly legal wrongdoing can only be politically determined; the decision to pursue such investigations may be politically motivated, but they need not be–they can be pursued or abandoned on strictly legal grounds.

I am not naive enough to believe that the ultimate outcome of this imbroglio will be determined on strictly legal grounds, mostly because a strictly law-based investigation would almost certainly lead to indictments against numerous officials very high in the Bush administration, and those indictments could lead to convictions. I think the Republican leadership also knows this, which is why they are mounting their attacks on political rather than legal grounds. My question to those who allege the accusations should be ignored is, quite simply, if those you defend are innocent, why not let the legal system exonerate them? Alleging virtue but refusing to have it tested suggests to me a recognition that defenders of the Bush officials are sufficiently uncertain of their legal case that they do not want to take the chance.

Others have reached the same conclusion and are jumping ship. The CIA is finding all sorts of memos that assert they thought the administration’s techniques were a bad, illegal idea, and the Defense Department has recently done the same thing.  I wonder why.

This whole issue is a political minefield that the Obama administration does not need and will simply add to the widening partisan divide in the capital and make political gridlock more likely. On the other hand, the bottle has been uncorked and the genie is out. Gee, wouldn’t it have been nice if nobody had decided to break the law in the first place? There is lots of smoke around and it is being blown around. Is it there to obfuscate something, or is it because there is a fire somewhere?   

 As a note, this affair does have one distinct difference from scandals that have plagued past administrations.  Inthe past, it has not been the alleged wrongdoing that caused the crisis, but the attempt to cover it up. In this case, it really is about whether high officials broke the law.

Military Reform Redux

The announcement last week by Secretary of Defense Robert Gates that he was proposing major reforms in the military procurement system and that he intends to cancel some of the military’s most cherished new weapons systems has created at least a bit of buzz, including two articles (one by John Barry and Evan Thomas and one by Fareed Zakaria) in this week’s Newsweek. But is this news, or just another ritual act in the ongoing drama within the Pentagon over who controls what the services buy to fight with and how they organize themselves to fight?

A SECDEF deciding he wants to climb upon and surmount the procurement process is certainly nothing new. The first SECDEF, retire Admiral James Forrestal, tried it in 1948 at the famous Key West conference on military leaders, where those leaders decided to divvy up military task about the way they alfready were divided and to keep doing things pretty much as thet always have. SECDEFs since have tried the same thing with about equal success, and Gates’ predecessor, Donald Rumsfeld made it a major priority before he got caught up in fighting the wars in Afghanistan and Iraq. In the end, passive resistance within the military prevailed until Rumsfeld was gone. Enter Gates.

Robert Gates has a consistent history of believing in the need to gain control of military procurement, based on two basic premises. The first is that the procurement system, which specializes in the development and purchase of large, expensive, sophisticated weapons systems, is prone to developing a force that is inapplicable to the kind of asymmetrical, small conflicts in which the United States is likely to be involved: the U.S. has bought 135 F-22 fighter jets (which television commercials assure us will assure American air combat superiority for the next 40 years), but, as Zakaria points out, none have been deployed to Iraq or Afghanistan. Why not? Well, the fact that neither enemy has an air force to engage these marvelous air-to-air fighting machines  (a trait shared by essentially all the United States’ likely competitors) has something to do with it. The air force is also concerned that some guerrilla fighter might get lucky and shoot one of these very expensive birds down. Main battle tanks, to cite another example, do not do well in mountainous terrain lacking decent roads and bridges that can withstand their weight, and the U.S. blue water navy is designed for more sophisticated tasks than warding off Somali pirates.

The other source of concern is that military procurement represents, at its worst, a pork barrel cesspool that makes the more publicized wastes of the public’s money absolutely pale by comparison. The cost overrun (systems coming in at considerably higher costs than they wree projected to cost) is a Pentagon way of life, as is the pursuit of weapons systems that wither do not work at all, work marginally, or work acceptably only after undergoing such expensive modifications as to leave the price tag astronomically greater than it began. Take efforts at developing a viable missile defense (after a half-century of concerted activity, we still do not have one that works) as a prime example. Pork barrel expenditures of around $8 billion attached to the current budget have created political apoplexy; the number for equivalent military waste is in the hundreds of billions of dollars!

Yet, Secretary Gates joins a long list of predecessors in what has proven to be a quixotic quest. He proposes to cancel the Air Force’s F-22 program on the quite reasonable basis that there is no current or reasonably projectible opponent for F-22s to shoot down (the United States has not engaged in meaningful air-to-air combat since Korea!), the Army’s collection of Future Combat Systems (which would work best against a Red Army that no longer exists or the Chinese People’s Liberation Army, against whom war is highly unlikely), and the Navy’s futuristic DDG 1000 destroyer (on the basis that the United States has the only real blue water navy in the world).

Yet, the quest will almost certainly be at least partly unsuccessful. It will be resisted on two basic grounds, one highly public, the other not so much so. Publicly, the services and their supporters will attack reform on national security grounds, arguing that the failure to keep substantially ahead of the rest of the world in weaponry could place Americans in jeopardy that could be avoided by building the items on the military “wish lists.” If, for instance, the Air Force is not allowed to build the F-22 and some future enemy comes up with a fighter superior to our pre-F-22 combat systems, American citizens could be placed at risk. This is essentially a scare tactic that ignores the fact that we would know potential adversaries were doing something like that in adequate time to gin up a competitor or, for the matter, revive the F-22.

The less publicized objection is political. Military procurement is big business: for FY 2007, for instance, procurement costs for the United States were over $300 billion, and the spending occurred in a large number of locales for a variet of purposes. The practical result is that virtually every member of Congress has some stake in military procurement, because in all likelihood, his or her constituency benefits from it. This is nothing to say of corporate incomes, profits, and consequent lobbying efforts and other economic impacts that create an enormous support base for continuing to “feed the beast.” It is a formidable array of forces on the side of the status quo, and one reformers to date have been unsuccessful in overcoming. Gates is only the most recent warrior to sit astride his noble stead, lance in hand, to confront the monster.

Presumably this is something of a crusade for Gates and one, if it succeeds, will have an enormously strong impact on the military equation. Although no one has said so publicly, it seems likely that permission to attack the procurement problem was the promise that Gates exacted frrom President Obama that convinced him to stay on for the transition. One can only wish him well. But one should also probably not hold one’s breath that he will succeed.

Style Points in Europe

President Obama has now been back from his first international tour for a week now. What did he accomplish? Was the trip a success, a failure, or something in between?

The answer, of course, was that it was a bit of both. Substantively, the President was unsuccessful in convincing the mostly European leaders gathered for the G-20 and other events to do the things he most wanted. He went hoping to convince G-20 leaders to join him in stimulating the world’s economy out of the doldrums in much the same way he is attempting to do here. He did not succeed in winning over European leaders who do not believe the answer is spending their way out of the recession, and he did not convince them that adding measurably to their debt was the answer to their problems.

He was also essentially unsuccessful in convincing NATO partners to up their support–in some cases even to sustain the levels of commitment they have already made–in Afghanistan. He wanted more NATO troops to make the operation look a little less American, and he did not get them. He did get some token pledges of economic support and the commitment of some trainers to work with the Afghan military, but when the dust settled, the muddy boots on the ground in Afghanistan are going to be even more American than they were a year ago.

Does this mean the trip was a failure? Not really. While Obama did not succeed in changing substantive policies to the degree to which he aspired, he did succeed in changing the atmosphere in which current discussions occur. In the long run, that may prove to be a more important outcome than the immediate policy failures.

The signal impression of the trip was the overwhelmingly enthusiastic reception the President got both from European leaders and especially the citizens of countries he visited. Obama is indeed the “rock star” of international politics, and citizens from London to Strausburg to Prague turned out to welcome him in a way that an American president has not been greeted in a long time. The contrast, of course, seems all the more stark in comparison to the incredibly low regard in which his predecessor was held, but nonetheless, Europeans clearly love Obama (not to mention his wife Michelle, who may have been the biggest hit of the tour; one has to go back to Raisa orbachev even to begin to emulate the impact she made).

Obama’s welcome in Europe changed the atmospherics of international relations in ways we will have to observe. At a minimum, it has made America bashing–a favorite and politically very popular activity for the last eight years–a much more risky endeavor. Attacking America means attacking Obama, and that is something that European leaders clearly will have to think carefully about in the future. Standing next to Obama as a 2009-version FOB (Friend of Barack, not Bill) clearly has some political cache.

Nowhere is this new dynamic clearer than in U.S.-French relations. In the weeks leading up to the summit, Frecnh president Nicolas Sarkozy and German chancellor Angela Merkel engaged in a virtual non-stop grump and grumble of opposition to the Obama economic plan, including dark warnings about what they might do to submarine the G-20 if Obama did not back down. He did, of course, moderate his demands, but this did not bring a chorus of righteous high-fives from the French and German leaders. Rather, the image that strikes me is Sarkozy standing next to Obama at Strausburg, a big smile on his face and clapping and nodding his agreement with essentially everything Obama said.

For a time, the atmosphere has changed. Obama went to Europe to charm its leaders with his knowledge and command of foreign affairs, to asure them that the United States was returning to its traditional, liberal internationalist path of global cooperation, and to talk them into support for the stimulus and Afghanistan. He succeeded on the first two counts and fell short on the third. Not too bad for a first time at bat.

The North Korean Threat?

The Democratic People’s Republic of Korea (DPRK or North Korea) is scheduled to test fire a Taepodong rocket within the next few days. Diplomatic efforts may or may not prevent this from happening–the record of dealing with Kim Jung Il and his regime is a decidedly mixed bag.

The North Koreans, of course, say this is no big deal. The DPRK is, after all a sovereign state, and as such, has every right to test a rocket. And, in their telling, the rocket launch is not a military event, but instead an effort to put a satellite into orbit. The fact that the technology for satellite or military launch is very close to the same should not be troubling, according to Pyongyang.

And yet the world, and specifically the United States, evinces a good deal of concern over this event. The reason, of course, is that a successful rocket launch would demonstrate the potential that the DPRK might wed its existing nuclear weapons knowledge with a rocket capable of launching a warhead to the continental United States. That, of course, would be a problem, particularly given the instability of the North Korean regime and the state of US-DPRK relations, which is never good and occasionally (like the last eight years) very bad.

Just how worried should we be about all this? Does this rocket launch pose a real threat to the United States, or is the whole thing being hyped out of proportion? I would suggest that the extent of problem depends on what the North Koreans can and cannot do or will be able to do if the launch is successful.

For there to be any real American problem, the North Koreans must demonstrate two capabilities, one of which will be at least partly answered by the rocket test. The first is the ability to launch a reliable rocket that can achieve intercontinental range. They have had some successful launches and some notable failures, and they have yet to demonstrate the ability to fire a three-stage rocket, which is what they need to get a warhead here. One successful test is a start for them, but just a start. The other capability is the fabrication of a nuclear warhead that is small and light enough to fit on (and thus be transported by) a missile to target. Primitive nuclear weapons are too big and heavy to put on the tips of missiles. Does the DPRK have the scientific and engineering expertise to fabricate an appropriate warhead for missile transport? Can they? I don’t know, and since the information is classified by the US government, if I told you, I would have to kill you. It is not, however, simply a given that they can do either of these  things,. If they can’t do both, the problem is hypothetical, not real.

Even if the North Koreans can pass the first two tests, that does NOT mean they automatically pose a threat against the United States. To pose such a threat, they would have to possess rockets that could be fired clandestinely and on essentially no warning–what are called “first strike” weapons capable of being fired in a rapid manner that the United States could not detect until the launch occurs. They are several eons from such a capability.

To launch a preemptive attack, a country’s missile attack force must have two capabilities. First, it must use solid fuel as a propellent. Taepodong rockets are liquid fuel. This is important, because solid fuel propellents can be stored on the rocket for long periods and can be activated instantly. Liquid rocket fuels are too volatile for storage on the missile, and this means a missile must be “filled up” with fuelbefore launch. This takes time and is normally visible to a potential opponent. If one sees rockets being fueled, that is a clue and gives time to knock the rocket out before launch–no first strike. Second, the missile must be stored in a ready launch position that is protected from preemptive attack. Again, the North Koreans fail. The DPRK must drag their missiles out of storage facilities and erect them in an upright position. We have been watching this process for days on cable television. While the process of erection is occurring (and it must be completed before fueling is possible) there is lots of time to take out the missile before it can possibly be fired at you.

What this means is that the kind of rocket the North Koreans are preparing to fire poses no direct threat to the United States. Moving from primitive liquid propelled, above-ground launched missiles to weapons that could actually be used to threaten to attack or to launch an attack  against the American homeland is a very long step, and one well beyond the North Koreans at this time or in the foreseeable future. To suggest anything more ominous about the test than that it is a very small step toward a North Korean threat is hysterical, and it is heartening that the Obama administration has not issued more than guarded statements about it (the Bush administration would have had us digging up our back yards and building bomb shelters!).

Is the North Korean test of a rocket potentially capable of intercontinental range a good thing? Of course not. Is it the apocalypse? It may be the first step toward a big deal, but in and of itself, it should give us cause for mild concern, and not much more.