>> MALAYSIA DOSSIER...
Malaysian premier's son linked to nukes probe
By Anil Netto
PENANG, Malaysia - Disturbing foreign press reports that a firm controlled by the son of the Malaysian premier is being probed for allegedly supplying parts for Libya's nuclear-weapons program come amid a swirl of recent revelations regarding the existence of a complex international black market in nuclear parts. Such reports come at a particularly inopportune time for the prime minister's ruling coalition, which is gearing up for a general election.
The allegations about Malaysia surfaced this week in foreign media reports about Pakistan's top nuclear scientist, Abdul Qadeer Khan, who admitted to the unauthorized transfer of nuclear technology to Libya, Iran and North Korea.
According to these reports, the parts from Malaysia were in boxes labeled "Scope", otherwise known as Scomi Precision Engineering, a subsidiary of Scomi Group, the mid-size oil company controlled by Prime Minister Abdullah Badawi's son, Kamaluddin.
Scomi said it had won a contract, arranged by B S A Tahir, a Sri Lankan businessman now under investigation, to ship 14 "semi-finished components" to Gulf Technical Industries, a customer in Dubai. The deal was worth RM13 million (US$3.4 million) and comprised four consignments that were shipped between December 2002 and August of last year, the company said. However, the company said it was not told of the "end use" of the components, while the Malaysian government, for its part, flatly denied that the country had in any way contributed to the spread of nuclear technology.
US and British intelligence had reportedly warned Malaysian police in November that Malaysian centrifuge parts were on a Libyan-bound ship. Malaysian Special Branch police reportedly began the investigation after they received this information, and late on Wednesday, Inspector General of Police Mohamed Bakri Omar issued a statement that initial investigations into the alleged manufacturing and shipment showed that Scope did not have the technology or expertise to build a centrifuge. He also said that "nuclear experts found it difficult to ascertain positively that the components were parts for centrifuge units".
Malaysia, a signatory to international nuclear-weapons non-proliferation treaties, has a small government-backed program for developing nuclear technology for medical and industrial uses. However, Bakri stated that no plant in Malaysia is capable of producing a complete centrifuge unit.
Still, opposition politician Lim Kit Siang said Bakri's statements were not helpful as there was no categorical denial for the accusations, nor did he address the question as to whether Malaysia was part of a wider international nuclear-black-market network.
Implications of an investigation
The investigation is likely to put the ruling coalition on the defensive and embarrass Prime Minister Abdullah, whom the media have projected as Mr Clean. Abdullah himself has welcomed the probe, although headlines such as "Malaysia PM's son in nuclear link" may dent his international stature and provide fodder for the opposition. Abdullah's coalition has been tipped to win easily in snap elections, widely expected to be held next month even though the current term does not expire until November.
As for Malaysia's nuclear-weapons concerns, the International Atomic Energy Agency (IAEA) issued a report on Tuesday saying that its director general, Mohamed ElBaradei, has put the focus on an emerging and sophisticated "nuclear black market" in weapons technology. "Considerable light on the global network has come from the IAEA's ongoing verification of nuclear programs in Iran and Libya," he said. He stressed that the picture emerging so far has not implicated governments, but rather points to individuals involved in illicit trafficking of material and equipment.
Investigations in Malaysia are likely to be clouded by a potential conflict of interest. As Lim pointed out, Scope is a subsidiary of Scomi, which in turn is controlled by Abdullah's son, while the police, on the other hand, come under the control of the Home Ministry, a portfolio held by Abdullah.
Even then, initial press reports regarding the investigation may not carry as much weight as it seems, and if the attention the media are giving the story continues, it may quickly lose its steam. Few Malaysians were even aware of the unfolding story as the mainstream media marginalized the news item. The general reaction among Malaysians posting comments on a weblog was that this was a storm in a teacup and just more knee-jerk reaction from the Americans, while others felt there was more than meets the eye. On Thursday, the top-selling English daily, The Star, relegated the story, which flashed around the world, to its second page along with Bakri's comments. And only on Friday did it mention that Abdullah's son was a controlling shareholder in Scomi.
Instead, newspapers in Malaysia ran a front-page report on Thursday announcing the appointees of a royal commission created to "come up with ways to turn the Royal Malaysian Police into a credible force".
Police corruption takes the lead
The name of this new body - "The Special Commission to Enhance the Operation and Management of the Royal Malaysian Police" - appears to be something of a euphemism. The Star sugar-coated the real issues the commission will have to grapple with: corruption, abuse of power, human-rights violations, custodial violence and deaths, shootings of suspected criminals on the streets, and a review of crime-fighting and prevention human resources to cope with a recent spate of violent crimes.
Former chief justice Mohamed Dzaiddin Abdullah heads the 16-member commission, but already some quarters have expressed reservations about the preponderance of establishment personalities many of whom have little experience in human-rights issues. Other criticisms centered on the fact that the commission is only an ad hoc body, whereas a permanent structure is needed to oversee the police and stamp out corruption in its ranks. Dzaiddin himself, when he was at the helm of the judiciary, promised much in the way of reforms, but in the end failed to enhance the public perception of the independence of the judiciary.
His commission will have its work cut out for it. The credibility of the police nosedived in 1998 when jailed ex-deputy premier Anwar Ibrahim showed up in court with a black eye he had received while in police custody. It was later revealed that then-police chief Rahim Noor had ordered Anwar to be blindfolded and bound before assaulting him in police custody on the night of his arrest. An ailing Anwar remains incarcerated, serving prison terms totaling 15 years, while Rahim was sentenced to two months in jail.
Meanwhile, public gatherings continue to be banned and the police have come down hard on attempts by reformasi supporters to regroup in public.
Since he came into power in November, Abdullah has ridden on a wave of public support for his fight against corruption and bureaucratic inefficiency. His December 29 announcement to set up the royal commission to review police operations showed that he is very much in touch with the pulse of the public.
In an AsiaBarometer Survey of 800 Malaysians in peninsular Malaysia made available to Asia Times Online, the overall level of trust in government and public institutions was rated fairly high in all major institutions except for the police and the legal system.
Political scientist Professor Johan Saravanamuttu observed that the central government won 91 percent overall trust (with 50 percent trusting it a lot, the remainder trusting it to a degree), the army chalked up 89 percent (50 percent trusting it a lot), and parliament 89 percent (39 percent). The police, on the other hand, recorded a relatively low 75 percent overall trust, with only 31 percent trusting it a lot, and the legal system posted 84 percent (31 percent).
The survey also revealed that political corruption stood as the No 1 problem in governance, with 60 percent regarding the government as having failed in dealing with this issue. "This is true despite the strong trust showed to government institutions," noted Johan.
Not surprisingly, Abdullah's rhetoric has focused much on corruption and involves a review of the police ahead of the general election. He desperately wants to win the election easily in order to legitimize his rule after taking over from his predecessor, Mahathir Mohamad. But given that his own support base is still uncertain, perhaps even more so after the Scomi allegations, few people are betting on reforms that will rock the boat.
(Copyright 2004 Asia Times Online Co, Ltd. All rights reserved. Please contact content@atimes.com for information on our sales and syndication policies.)
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>> JAKARTA WATCH...
Iraqi oil and troubled waters for Megawati
By Bill Guerin
JAKARTA - Reports in an Iraqi newspaper allege that Indonesian President Megawati Sukarnoputri is one of several leading international figures who received money from a political slush fund aimed at buying political support for the tyrannical Saddam Hussein regime.
Megawati has yet to respond to the allegations, though a palace spokesman has confirmed she is aware of them. The president appeared on a list of more than 270 public figures, politicians, companies and organizations around the world accused of receiving bribes in the form of commissions from sales of Saddam's oil.
The Iraqi Governing Council has ordered an investigation into allegations that Saddam paid millions of dollars in bribes to foreign politicians and political organizations. The council is to set up a commission of inquiry after the allegations in reports published in the Baghdad-based daily al-Mada.
The Iraqi Oil Ministry also claims the documents published in the newspaper are authentic and that it intends to ask Interpol to help with criminal action against those involved in "the theft of state assets". The ministry is talking tough and says the documents show how Saddam squandered the country's oil wealth on people "who had supported him and turned a blind eye to the mass graves and injustice inflicted on the Iraqi people".
According to the documents from the former State Oil Marketing Organization, the bribery network reached out to some 46 countries, including Indonesia.
Experts say none of those involved would have actually received oil, but instead, the right to buy the oil at a discounted price, which could be resold to a legitimate broker or oil company at an average profit of around 50 US cents a barrel. Megawati, the documents allegedly show, received vouchers for 8 million barrels of oil.
Presidential candidate and People's Consultative Assembly (MPR) Speaker Amien Rais is also named on the list. Rais at first refused to comment but when asked by Agence France-Presse on Wednesday confessed to being "flabbergasted ... Why am I included in the list out of the blue? It's big slander," Rais was quoted as saying. The report says Rais received 4 million barrels of oil.
Yet another highly placed member of the Jakarta elite, Arifin Panigoro, deputy chairman of Megawati's Indonesian Democratic Party of Struggle (PDI Perjuangan), was quoted as saying this week that Megawati and the Ba'ath Party in Iraq had a close relationship. "It was normal. They were very close to Megawati," the tycoon said.
Panigoro admitted that his oil company Medco had bought oil from Iraq but said it was "pure business" and was done with UN permission. "The oil purchase from Iraq had nothing to do with President Megawati," he was quoted as saying.
The relationship between Indonesia and Iraq goes back a long way. International trade sanctions were enforced on Iraq after its 1990 invasion of Kuwait. Prior to the ensuing 1991 Gulf War, Jakarta had signed a memorandum of understanding for a counter-trade deal with Baghdad through which Indonesia would import 30,000 barrels of oil a day from Iraq in exchange for commodities such as textiles, timber, tin and crude palm oil. A similar deal is now being implemented with Libya. But the Iraqi agreement was frozen after the Gulf War.
Al-Mada said the documents, which cover 1999 only, were recovered from Iraq's State Oil Marketing Organization, the commercial wing of Saddam's government responsible for selling oil. The contracts were all awarded from late 1997 until the US-led war last March and ostensibly fell within the United Nations-sanctioned oil-for-food program that allowed Iraq to sell oil in exchange for humanitarian needs.
Under the UN deal, Iraq had been entitled since 1996 to export crude oil in six-monthly intervals to finance imports of humanitarian supplies such as food and medicine.
Although a major exporter of crude oil, Indonesia imports some cheaper higher-sulfur crude to feed its refineries. It bought oil from Iraq and in return sold Indonesian-made goods, mostly foodstuffs, to Iraq.
The food-for-oil trade deal with Iraq was very profitable for Indonesia, especially in helping to boost the latter's export of non-oil commodities. Only local Indonesian companies could participate in the program and they first had to acquire the UN's approval before being able to export their goods to Iraq. However, despite the great enthusiasm expressed by many local exporters toward the food-for-oil deal, Indonesia had never been able to meet the export value to Iraq completely because of under-capacity in its factories.
Another possible candidate for the Indonesian presidency is retired Lieutenant-General Prabowo Subianto, a son-in-law of former president Suharto. Prabowo had been living in Jordan after being discharged in 1998 by the Indonesian military in connection with his role in the abduction of pro-democracy activists in the last months of Suharto's rule.
Though Prabowo is not named in the list, a company owned by him was among nine bidders for part of a newly negotiated food-for-oil deal between Jakarta and Iraq in 2000. Baghdad had sought to double the value of its oil-for-food trade deal with Jakarta to $1 billion. Under the deal, Indonesia would buy crude oil from the Basrah oilfield and refine it into fuel in Indonesia.
Iraq holds the second-biggest proven crude reserves after Saudi Arabia and has developed a mere 15 of its 73 known oilfields. Iraqi oil officials are now keen to cooperate with foreign companies to find and exploit new sources of crude, and this year are to announce the parameters for foreign investment.
Indonesia's state oil and gas company, Pertamina, has been in from the start. PT Elnusa, a Pertamina unit, holds a contract awarded by Iraq's Sabah al-Shammery & Partners, or SAPCO, to drill 60 new oil and natural-gas wells and will start drilling in Block III in the Western Desert near Basrah in late February.
Saddam awarded the block, which is estimated to contain 3 million barrels of crude oil, to Pertamina in late 2002. The plan to start exploration last March was thwarted by the US-led military invasion that toppled Saddam, and Pertamina now plans to begin oil and gas exploration in Iraq this month, investing about $24 million over the next three years.
Pertamina is also keen to explore for oil in the Tuba Block, which is estimated to hold even larger oil reserves. Pertamina was concerned that the new government might suspend the contract, after contracts with Russia and China were reportedly put on hold, but the new Iraqi government gave the company the go-ahead last November to restart the project.
After resuming crude production last June, Iraq was exporting an average of 1.54 million barrels a day in December and by the end of that month had generated $5 billion in earnings from oil sales. Oil is almost as expensive now as it was on the eve of the Iraq war, when prices hit a 13-year high of $38 a barrel. Prices have soared by 13 percent, to more than $33, after touching $36.
Oil (and gas) has also been a major revenue earner for Indonesia, making up 29 percent of the country's foreign-exchange earnings. Crude-oil production now stands at 1.16 million barrels per day (bpd), lower than the 1.317 million bpd quota set by the Organization of Petroleum Exporting Countries (OPEC).
Though Indonesia's exploration plans are unlikely to be affected by the corruption claims made by the Iraqis, the political implications for Megawati could be troublesome indeed. A senior member of the Iraqi Governing Council, Naseer al-Chaderji, has warned, "We asked the Justice Ministry to launch an investigation, take measures against the Iraqis who took part and examine what could be done internationally to pursue foreigners involved."
The allegations are already having major political ramifications in Bulgaria, where President Georgi Parvanov, like Megawati, is one of those named. He has denied the reports, but opposition figures are calling for his resignation.
Megawati and her administration were outspoken and vocal opponents of the US-led invasion of Iraq, as was Russia, which got the biggest set of contracts, followed by France. The difference, however, and one that may prove to be a major problem for Megawati ahead of the general election, is that neither Russian President Vladimir Putin nor French President Jacques Chirac was accused of receiving the money directly.
(Copyright 2004 Asia Times Online Co, Ltd. All rights reserved. Please contact content@atimes.com for information on our sales and syndication policies.)
>> 6 WAY VIEWS...
China, U.S. Differ Over N. Korea Weapons
By GEORGE GEDDA
ASSOCIATED PRESS
WASHINGTON (AP) - China and the United States disagree over a key part of North Korea's nuclear capabilities, a U.S. official said Friday, a dispute that could give the North Koreans a diplomatic boost in sensitive talks later this month.
China has refused to accept the U.S. contention that North Korea is developing nuclear weapons based on highly enriched uranium, the official said. North Korea has acknowledged it has a plutonium-based program but denies it is developing a uranium-based one.
The administration official, speaking on condition of anonymity, said U.S. diplomats have told Beijing its position is not helpful.
American negotiators are concerned that China's stand could benefit Pyongyang heading into six-party talks to be held Feb. 25 in Beijing on the overall North Korean nuclear program.
Besides the United States and North Korea, the discussions also will include China, South Korea, Japan and Russia.
The Bush administration is seeking a complete and verifiable elimination of the North's nuclear capability. Officials have said it is difficult to see how such an agreement can be reached if Pyongyang continues to maintain that it has no uranium program.
The Bush administration says that intelligence information confirmed the uranium program in 2002, and that a senior North Korean official acknowledged its existence in October of that year during a meeting with U.S. diplomats.
But North Korea has since denied making any such statements and apparently is hoping that China, by casting doubt on the U.S. contentions, will help discredit them.
Chinese officials could not immediately be reached for comment Friday.
The Bush administration has frequently praised China for its leadership role in attempts to resolve the North Korea nuclear impasse. Beyond that, China has said it supports the U.S. goal of a Korean peninsula without a nuclear program.
North Korea says it is willing to dispose of its plutonium-based program, the only one it claims to have.
China and the United States have other differences involving North Korea, but they do not appear to be as serious. China, for example, has suggested the United States make concessions in its approach to the North.
It also has been more enthusiastic than the United States over North Korea's willingness to freeze its plutonium-based program.
In December, Secretary of State Colin Powell called that proposal "positive," but the administration has since played down its significance.
State Department spokesman Richard Boucher said last week, "We're not seeking or asking for a freeze. We're looking for elimination of the programs."
Strained U.S. relations with North Korea worsened considerably in 2002 when U.S. officials said intelligence information disclosed a uranium-based program.
U.S. officials said the program violated a 1994 North Korean pledge not to develop nuclear weapons - part of a broader commitment that also included freezing its plutonium-producing program and placing it under international inspection.
After denying the administration's assertions in 2002, North Korea became increasingly confrontational. Over time, it expelled U.N. nuclear inspectors, withdrew from the Nuclear Non-Proliferation Treaty, restarted an idle nuclear reactor and said it had begun reprocessing spent nuclear fuel rods to produce plutonium.
Multilateral talks in Beijing in April and in August of 2003 on the nuclear impasse were inconclusive. Officials have indicated they expect no major breakthroughs in the talks later this month.
The United States believes North Korea already has one or more plutonium-based nuclear weapons and is concerned that, if left unchecked, the country could develop many more, giving it the potential to blackmail adversaries or export its nuclear technology.
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North Korea: Japan prepares sanctions noose
By Tom Tobback
BEIJING - Japanese lawmakers are expected to approve a bill on Friday enabling the government to impose economic sanctions on any country considered a threat to Japan's security - read North Korea. The bill amends the Foreign Exchange and Foreign Trade Control Law and would allow Tokyo to halt trade, block cash remittances to North Korea and even halt ferry service.
Sanctions are not in the offing, as yet, but if imposed, they could have a serious economic impact on the Democratic People's Republic of Korea (DPRK). Remittances alone from pro-Pyongyang Koreans and Japanese in Japan are said to amount to tens of billions of yen annually, a major source of income for Pyongyang. Japan is also the DPRK's third-largest trading partner, after China and South Korea.
The possibility of sanctions, however, represents important political leverage for Tokyo against Pyongyang in the context of the current nuclear crisis. But for Tokyo the leverage is even more important in its efforts to resolve the case of a dozen Japanese citizens and their families abducted by North Korea in the 1970s. The best guess is that they were abducted to train North Koreans, possibly espionage agents, in Japanese language skills and behavior.
The abduction issue has been dominating bilateral relations and preventing improvement since DPRK leader Kim Jong-il admitted that 13 Japanese citizens were abducted in the 1970s and five were still alive in the DPRK. That was in 2002 during the historic visit of Prime Minister Junichiro Koizumi to Pyongyang.
Lawmakers in the Lower House of parliament, the Diet, overwhelmingly approved the measure on January 29, though the Japan Communist Party voted against it. On Friday, overwhelming approval by the Upper House is expected, clearing the way for the government to impose sanctions.
Koizumi has said of the possible economic sanctions, "It is good to have various cards" to play in relations with North Korea, but he added that his government is not yet considering actually applying sanctions.
The DPRK Foreign Ministry called it a "wanton violation" of the DPRK-Japan Pyongyang Declaration of September 2002, warning: "As Japan sows, so it shall reap."
Sanctions threat could keep Pyongyang in talks
The possibility of sanctions, however, will be an added incentive for Pyongyang not to walk out of the recently agreed-upon second round of six-party talks in Beijing on February 25 without making some kind of progress. Besides North Korea, the talks will include South Korea, China, Japan, Russia and the United States.
Japan is the closest US ally in this standoff with Pyongyang, but unlike the US, it is a significant trading partner of the DPRK. North Korean exports include fish, marine products and minerals; it imports machinery, electronics and manufactured goods.
Under the sanctions, Tokyo would be able to stop all bilateral trade, halt the remittances to Pyongyang from DPRK sympathizers in Japan, and impose other restrictions on the flow of money and goods to and from North Korea. It could also bar trips by the Mangyongbyon-92 ferry, the main direct link between the two countries. Cargo shipping could also be stopped.
Until 2002, Japan was the DPRK's second-largest trading partner, after China. Japan has lost this position to South Korea, which has continued to expand its trade with the North despite the current crisis. According to South Korean Trade-Investment Promotion Agency (KOTRA) statistics for 2002, the DPRK's trade with Japan represented US$369 million, or 12 percent of its total foreign trade, including inter-Korean trade.
In fact, in 2002 the DPRK exported more to Japan - $234 million worth - than it imported - $135 million - while it ran huge trade deficits with China and South Korea. In October 2003, one year after the nuclear crisis erupted, South Korea reported that trade between Japan and the DPRK had hit a record low of only $134 million over the first six months of 2003.
Trade between Japan and the DPRK has been facilitated by the presence of a large ethnic-Korean community in Japan, and an equally important source of income for Pyongyang is the remittances these Koreans send back home. Of the 700,000 descendents of the Koreans who were not repatriated after World War II, about one-third are said to support the DPRK. These Chongryun (Chosen Soren in Japanese) are organized in the General Association of Korean Residents.
The organization had been running its own network of schools and universities in relative peace until September 2002, when Koizumi brought home the news on the abductees after he returned from his historic visit to Pyongyang. Right-wing Japanese groups attacked several Chongryun-related offices, and it is reported the Chongryun headquarters in Tokyo has been put under constant police guard.
Koreans under threat in Japan
Pyongyang calls the association of Korean residents in Japan "a diplomatic mission for friendship with the Japanese people in the absence of formal diplomatic relations between the DPRK and Japan", and it has strongly protested the right-wing "terrorism" against Chongryun. As the crisis over the abductions and nuclear threat worsens, Chongryun is losing support among the Koreans in Japan, and the organization is reportedly lowering its pro-Pyongyang propaganda (tuning) in an effort to maintain credibility.
There are no direct flights between Japan and the DPRK; Chongryun's main link with the socialist motherland is North Korea's Mangyongbyon-92 ferry that runs between the North Korean port of Wonsan and Japan's port of Niigata. A few months after the start of the nuclear crisis, Japanese police alleged that the ship was being used as a communications vehicle, engaged in espionage communications with DPRK agents in Japan. Police later added accusations of smuggling missile parts on the ferry.
When the Mangyongbyon-92 scheduled its first visit to Japan last June after the SARS (severe acute respiratory syndrome) crisis, the Japanese authorities announced they would inspect the ship upon arrival. In this move, Pyongyang saw the beginning of sanctions, pushed by the United States, and protested that the ferry had a purely humanitarian mission: to allow Koreans in Japan to visit the DPRK. The trip was canceled; one reason might have been decision of the fuel supplier in Niigata to stop servicing the DPRK vessel. Japan does not run a similar ferry service.
The ferry eventually arrived in Niigata on August 25, and 110 Japanese officers searched the ship for seven hours - they found no contraband or customs violations. They did find several safety violations but gave a conditional permission to leave the port, so as not to complicate the first round of six-party talks that was scheduled two days later in Beijing. During the next two visits to Niigata in September and October, more than 500 police officers were deployed to keep Japanese demonstrators at a distance.
The main reason for this anti-DPRK sentiment in Japan is the abduction issue, which turned out to be a major obstacle to improving bilateral relations after Koizumi's ground-breaking trip to Pyongyang in September 2002. Kim Jong-il's admission about the abducted Japanese was widely seen as a quid pro quo for Japan's apology for its colonial rule over Korea, paving the way for a huge compensation package that Pyongyang is desperately anticipating.
Koizumi underestimated abduction issue
Koizumi, however, underestimated the emotional reaction of the Japanese public, and the abduction issue, which the DPRK regards as a closed case, has since then dominated bilateral relations. The five surviving abductees were allowed to return to Japan, but their families remained in Pyongyang. Some observers argue that Japanese society failed to place this in the proper context and that the case of abductees was by far outweighed by Japan's own wartime crimes against Koreans.
The DPRK Foreign Ministry said: "The Japanese authorities are making much fuss about the issue of abduction of a few Japanese, although they have not probed the truth behind hideous human-rights abuses Japan committed against the Koreans in the past and compensated for them."
When Koizumi recently claimed Tok Islet (Takeshima in Japanese) as Japanese territory, after Seoul decided to publish a postage stamp showing this group of rocks, Pyongyang saw this as proof of Japan's reviving militarism and moves "for the re-invasion of Korea and the rest of Asia", and mentioned it in the same breath with Koizumi's visit to the Yasukuni Shrine on New Year's Day. The shrine, a memorial to Japan's war dead, is also considered to be a memorial to war criminals.
Making it legally possible to apply sanctions against Pyongyang, Japan has chosen a path of confrontation with the DPRK - a dramatic change from Koizumi's bold initiative a year and a half ago to visit Pyongyang to settle the issues of the past and start a more constructive relationship. The DPRK has said it will regard sanctions as a declaration of war, so Tokyo will definitely think twice before applying such sanctions to counter a threat to Japan's security.
Tom Tobback is the creator and editor of Pyongyang Square, a website dedicated to providing independent information on North Korea. He is based in Beijing.
(Copyright 2004 Asia Times Online Co, Ltd. All rights reserved. Please contact content@atimes.com for information on our sales and syndication policies.)
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Analysis: N. Korea eases defiant stance
By Jong-Heon Lee
UPI Corresponden
SEOUL, South Korea, Feb. 6 (UPI) -- Since they began in 2000, the ministerial talks have given North and South Korea a chance to work on reconciliation, but instead they have been largely overshadowed by rows over the North's nuclear program and the South's close ties with the United States.
The past 12 rounds of the on-and-off Cabinet-level negotiations produced little progress in easing decades-long military tensions.
At this week's talks, however, the North stepped back from its defiant stance and made some concessions, agreeing to hold high-level military talks to discuss ways to reduce tension.
North Koreans also accepted the South's demand to work for the success of multilateral negotiations to end the nuclear crisis.
It was a major departure from Pyongyang's long-held stance that it would not discuss the nuclear standoff and any other security issues with the South.
Analysts say the change in attitude by the North was largely motivated by a sense of crisis as international pressure is increasing over its nuclear weapons drive.
"North Korea appeared to think that time is not on its side," said Cheon Seong-whun, a researcher at the Korean Institute for National Unification, a government-run think tank.
"Pyongyang seems to feel increasingly cornered in the world community in the wake of revelations that a top Pakistani scientist had sold nuclear technology to North Korea," he said.
The progress is also attributable to Seoul's strategy to link the nuclear issue to economic aid for starving North Koreans, Cheon said.
At this week's four-day session, which ended Friday, the two Koreas agreed to hold high-level military talks in the near future to help ease military tensions and discuss ways to prevent accidental clashes.
The military dialogue, chaired by general-level officers, would deal with preventing clashes on their western sea border, where the two nations engaged in deadly gun battles during the past years.
The two Koreas held their first defense ministers' talks in September 2000. But they failed to open a second round of talks because North Korea had dismissed Seoul's repeated proposals for another meeting.
In recent years, South and North Korean Navy vessels have clashed at the disputed sea border of the Northern Limit Line, around which lucrative blue crab beds lie. Tensions have risen sharply in that zone for May-June and October-November crab seasons, when North Korean fishing boats often move into the contested waters in search of crab beds.
The NLL, a U.N.-imposed Korean maritime border established after the Korean War, has served as a neutral zone to avoid possible armed clashes. But the North says that it does not recognize the border, insisting on its own sea border far south of the NLL and including South Korean islands.
Seoul has aggressively sought high-level military dialogue with Pyongyang amid security concerns in the wake of Washington's decision to pull thousands of U.S. troops from the heavily fortified border with the North.
"The establishment of high-level channel between the two militaries is necessary to reduce tensions on the peninsula and ease security jitters in the South," said Kim Tae-hyun, a professor at Chung-Ang University in Seoul.
The North's 1.1 million-member People's Army, the world's fifth largest military force, has nearly twice the number of South Korean's military. Under North Korean leader Kim Jong Il's "army-first" policy, the military serves as the backbone of Kim's totalitarian rule. The country spends about 30 percent of its gross domestic product on the military.
South and North Korea also agreed to work together to make the upcoming six-way nuclear talks "fruitful" for a peaceful solution to the 15-month stalemate over Pyongyang's nuclear arms program.
The second round of the nuclear talks, involving the two Koreas, the U.S., China, Japan and Russia, is scheduled to begin Feb. 25 in Beijing. The first round, last August, ended without significant progress.
North Korea had refused to discuss the nuclear issue with South Koreans, saying the dispute was "a product of the U.S. hostile policy" toward Pyongyang.
South Korea Foreign Minister Ban Ki-moon said his government hopes the six-nation talks will generate an outcome in which North Korea "publicly declares" it will dismantle its nuclear programs.
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North Korea: It's taking too long
By David Albright & Holly Higgins
After the September 11 attack on the United States, President George W. Bush embraced a wide range of multilateral initiatives to shore up the international coalition against global terrorism. But the Bush administration has remained surprisingly hardline where North Korea is concerned. For instance, in an Oval Office interview with Asian news editors on October 16, 2001, Bush said he was "disappointed" in North Korean Chairman Kim Jong Il, adding that Kim should lead his people into the modern era and "assume the responsibility of a good leader."
North Korea's response to this comment was predictable. A few days later, the Korean Central News Agency issued a statement rejecting U.S. calls for renewed diplomatic talks, adding that Bush would "pay dearly."
The current stalemate in the two countries' relationship is particularly unfortunate. If that stalemate could somehow be overcome, it might be possible to speed up nuclear inspections in North Korea--an essential element in the 1994 U.S.-North Korean Agreed Framework, designed to ensure that North Korea does not have nuclear weapons.
In the 1990s, the U.S.-North Korean relationship seemed to lurch from crisis to crisis, even as both sought solutions to the security issues plaguing the Korean peninsula. Despite those difficulties, progress was made, starting with the U.S. decision in 1991 to unilaterally withdraw its nuclear weapons from South Korea. The Joint Declaration on the Denuclearization of the Korean Peninsula soon followed. A broad set of initiatives between North Korea and the United States and its allies grew dramatically and covered almost every security issue facing the Koreas.
Yet the Bush administration is right to emphasize the importance of early progress on nuclear inspections in North Korea--the current schedule is too long. The inspection schedule, set in the Agreed Framework, was tied to progress in the construction of the first of two light-water reactors to be built at Kumho, now much delayed.
Conducting inspections before they are called for by the construction schedule could require offering North Korea some incentives. Those incentives could take many forms, including the supply of electricity by South Korea, as many nuclear and policy experts on Northeast Asia have suggested.
Getting off on the wrong foot
When President Bush met South Korean President Kim Dae Jung at the White House last March, few could have expected that Bush's remarks and demeanor during their joint press conference would be so damaging. Bush said he doubted that North Korea would live up to its international agreements, which many interpreted as a criticism of Kim's sunshine policy--the South Korean policy of engagement with the North aimed at resolving their outstanding political, security, and economic issues. Kim Dae Jung won the 2000 Nobel Peace Prize, largely for his efforts to implement the policy and for his historic summit meeting with Chairman Kim Jong Il in Pyongyang in June of that year.
Although Bush did not claim that North Korea was violating the Agreed Framework, his comment was interpreted as criticizing that agreement as well. Certainly, the Bush administration is much more critical of the agreement than the Clinton administration was.
Several senior Bush officials maintain that North Korea has one or two nuclear weapons and is committed to hiding that fact. They believe North Korea wants to delay the "day of reckoning" that inspections would cause. A few senior military officials in the region also believe that North Korea still intends to reunite the Korean peninsula by force.
These officials rarely offer new information to support their claims, and their views may or may not reflect any new information. They may simply represent the most hawkish U.S. intelligence agency assessments. But because of the uncertainty of available information, it is prudent to assume that North Korea could have one or two nuclear weapons. Conducting inspections would be the best way to find the truth.
Last June 6, after a four-month policy review, Bush announced that he had directed his national security team to "undertake serious discussions with North Korea on a broad agenda": improved implementation of the Agreed Framework relating to North Korea's nuclear activities, verifiable constraints on North Korea's missile programs, a ban on its missile exports, and its adoption of a less threatening conventional military posture.
North Korea, which was not consulted before this public announcement, felt slighted that the United States had unilaterally set the agenda. On June 20, North Korea issued a statement accusing the United States of attempting to put "conditions" on the resumption of negotiations by adding the question of conventional forces to the agenda: "The U.S. side, while proposing to resume negotiations without preconditions, unilaterally set out and opened to the public topics of discussion . . . before both sides sat together. [North Korea] cannot but interpret the U.S. administration's proposal for resuming dialogue as unilateral and conditional in its nature and hostile in its intention."
Secretary of State Colin Powell visited Seoul in late July. While conventional forces would be on the U.S. agenda, he said, the United States was prepared to meet North Korea "anywhere, anytime, and without preconditions." But this statement did not lead to the resumption of talks.
At an impasse, each country has expressed frustration that the other appears to be ignoring its political constraints. Privately, U.S. officials wonder what it would take for North Korea to believe the United States is sincere. The Bush administration has consistently said that it does not want to merely restate the Clinton policy. Officials wonder whether North Korea secretly wants to derail the process by de-legitimizing their administration. On the other hand, North Korea has questioned whether the United States will ever establish diplomatic relations with Pyongyang or whether it intends to follow through on its commitments under the Agreed Framework.
North-South relations
On September 2, North Korea suddenly announced that it would renew its dialogue with South Korea, which had become a casualty of the U.S.- North Korean stalemate. At a fifth round of inter-Korean ministerial talks in mid-September, the Koreas agreed to restart the inter-Korean family reunions that had been a major accomplishment of the 2000 summit.
Soon after, however, North Korea canceled the family reunions as well as the next round of talks. After a lengthy public dispute about venue, North and South Korean negotiators met for a sixth round in mid-November, but accomplished little.
In particular, North Korea offered no insight into when Kim Jong Il would visit South Korea--although Chairman Kim had promised to make a reciprocal visit after President Kim and he held their June 2000 summit in Pyongyang.
The South's President Kim desperately needs the North Korean leader's visit to bolster support for his sunshine policy and for his government as well. Since last spring Kim's political fortunes have waned. Prohibited from seeking reelection in 2002 and reeling from North Korea's refusal to make significant concessions, Kim has faced a number of political crises in recent months.
In September, the National Assembly passed a no-confidence motion against Unification Minister Lim Dong-won, Kim's top adviser, widely considered the architect of the sunshine policy. Then Kim's entire Cabinet resigned, forcing him to appoint a new government. This crisis brought to the surface South Korea's deep misgivings about whether it was receiving enough in return for its concessions and assistance to North Korea. Nonetheless, Kim remains steadfast in his desire to implement the sunshine policy. Quoted in Chosun Ilbo on October 31, he called it "an historic mission," and said there were no alternatives.
Fighting terrorism
North Korea's lukewarm reaction after the September 11 attacks on the Pentagon and the World Trade Center also generated suspicion--particularly because North Korea remains on the U.S. government's list of countries that sponsor terrorism. North Korea condemned the terrorist attacks as "very regrettable and tragic," but critics said this gesture was not enough. As reported by the Associated Press on October 31, Thomas Hubbard, U.S. ambassador to South Korea, urged North Korea to join in international anti-terrorism efforts: "North Korea has stated their opposition to terrorism and criticized the September 11 attacks. But they haven't supported the international coalition that is trying to fight terrorism. The North Koreans are missing an opportunity to play a responsible role by not joining us."
On November 12, perhaps in response to such criticism, North Korea signed two anti-terrorist treaties-- the International Convention for the Suppression of the Financing of Terrorism and the International Convention against the Taking of Hostages. It could be an important step to the removal of North Korea from the list of states sponsoring terrorism--its listing has prohibited it from receiving a wide range of international aid and loans for development. In mid-November, North Korea issued a statement saying it would cooperate with the international community, "firmly adhering to the principled position on terrorism in the future."
Still, North Korea severely criticized South Korea for putting its armed forces on a higher state of alert after the September 11 attack, even though the South repeatedly said the action was not taken to threaten the North. The complaint was seen by U.S. officials as another reason to remain skeptical of North Korea's commitment to the war on terrorism.
On the other hand, critics of the current U.S. policy believe the administration should be more accommodating. Leon Sigal, a North Korean specialist at the Social Science Research Council in New York, believes the United States should be holding senior-level consultations with North Korea: "If the Bush administration can cooperate with Pakistan, Saudi Arabia, and Egypt on terrorism, why not North Korea as well?"
KEDO rolls on, but what about inspections?
Meanwhile, the Korean Peninsula Energy Development Organization (KEDO) is now making steady progress as it prepares to build two light-water reactors in North Korea. After several years of activity, it has built roads, a harbor, and support facilities. North Korea and KEDO members have had productive discussions on nuclear safety. In September, North Korea issued a construction permit, and major construction on the reactor complex has finally started.
One senior KEDO official estimates that KEDO will have completed a "significant portion of the [light-water reactor] project" by the first half of 2005, and will then be ready to receive key nuclear components. Under the Agreed Framework, North Korea must come into compliance with its IAEA safeguards agreement before those components are delivered.
The original schedule envisioned conducting the inspections in the late 1990s and finishing both reactors by 2003--and the completion date could slip again. KEDO still faces tough negotiations with North Korea over several issues, including liability and the possible need to refurbish North Korea's electrical grid, which is in extremely poor condition.
Although North Korea is expected to comply with its safeguards agreement, no one knows for sure whether it will do so. It has failed to cooperate with the IAEA on a range of verification issues, raising concerns that it may not be completely cooperative when the inspection process resumes. In addition to inspecting North Korea's known nuclear infrastructure, the IAEA will also have to verify the absence of undeclared nuclear sites or activities.
As recently as October 17, the IAEA said it had not made any significant progress in verifying that North Korea had come into compliance with its safeguards agreement or that North Korea had not produced more plutonium than it declared in the early 1990s. IAEA Director General Mohammed El Baradei said in an October 17 Reuters interview: "We are still where we had been a year ago. We continue to verify the freeze of the existing facilities but we haven't really made any progress with regard to verification of the past program."
In early November, however, North Korea said it would allow IAEA inspectors to visit the Isotope Production Laboratory at Yongbyon, a facility suspected of being involved in plutonium separation. Whether North Korea will allow the inspectors to investigate past activities at the facility remains unclear.
Because inspections are tied to construction milestones, as things stand the IAEA may not begin the verification process until about 2005. The IAEA's director general and senior staff estimate that it will take three to four years to conduct inspections, so the inspections might not be finished until 2008 or 2009. If pressed, though, the IAEA could act more quickly and still do the inspections adequately.
Such a delay could open the way for disruptions in the Agreed Framework's delicate balance, which could also impair the inter-Korean peace process. Mistrust of North Korea remains high in general, and from time to time the North is accused of having hidden nuclear weapons facilities (see "Under Mt. Chun-Ma," page 58).
And what if the verification process were to fail? The IAEA can only determine whether North Korea is in compliance with its safeguards agreement if it cooperates. North Korea is still deeply suspicious of the IAEA.
Given the timeline, it would be prudent for the Bush administration to try to help jump-start IAEA inspections. In his July 26, 2001 testimony before the House Committee on International Relations, Charles Pritchard, a senior State Department official, said: "Improved implementation of the Agreed Framework provisions related to North Korea's nuclear activities was one of the administration's top priorities. [North Korean] cooperation with the IAEA will become increasingly important. Although the date for delivering key nuclear components is still in the future, [North Korea] must begin active cooperation soon, to avoid serious delays in the KEDO project."
A bilateral approach
Prudence alone recommends not relying solely on the IAEA to determine whether the Korean peninsula is free of nuclear weapons. A complementary approach, based on a step-by-step process of creating North-South nuclear projects and mutual nuclear inspections, could provide valuable insurance.
The 1991 Joint Declaration on the Denuclearization of the Korean Peninsula calls for a joint inspection agency--the Joint Nuclear Control Commission. However, the commission has not met since 1993. North and South Korea could now reconsider mutual inspections, either formally through the commission, or informally through political and scientific channels.
Given the difficulty in implementing the Joint Declaration, a bilateral system may be best approached in an incremental way. A series of confidence-building measures could lead to a comprehensive bilateral inspection regime. Examples might be joint seminars on inspections; written assurances that North Korea intends to permit IAEA inspections anywhere, anytime; joint civil nuclear cooperation; and reciprocal visits by senior political leaders to nuclear facilities. Even if a bilateral regime were not fully realized, these steps could make significant contributions to achieving transparency and increasing cooperation.
On the other hand, a bilateral approach would risk duplication and competition with the IAEA regime. If not managed effectively, it might even provide North Korea with a pretext for delaying the fulfillment of its obligations under the Agreed Framework. And it cannot serve as a substitute for the work of the IAEA, which must still certify North Korea's compliance with its safeguards agreement.
But a bilateral approach could increase the chance that the IAEA would achieve its inspection goals and provide an independent check on its results. Bilateral inspections might start sooner and accomplish many of the same tasks, dramatically shortening the time needed by the IAEA to verify compliance. North and South Korea might be able to resolve outstanding nuclear issues more quickly and confidently than the IAEA and North Korea could. A bilateral approach might also provide early warning if North Korea does not intend to comply with its obligations.
South Korea might also be willing to provide North Korea with economic and political incentives for early cooperation on verification issues. Although these incentives would need to be evaluated carefully, they could be justified if they resulted in new initiatives.
Getting back on track
The relationship between North Korea and the United States is again plagued by serious misunderstandings, missed opportunities, and false expectations. Both sides repeatedly call on the other to make the first move, but neither has made a significant gesture. In a November 28 interview with Reuters, President Kim said: "I hope that both sides, the United States and North Korea, will be able to sit face to face and discuss these issues."
Many experts on North Korea believe that it would not take much to restart discussions between the United States and North Korea. But both sides have to find a way out of the current impasse. With so much attention devoted to the war on terrorism, however, the administration is stretched thin. The United States needs to make a concerted effort to launch a new round of bilateral negotiations with North Korea and to help foster inter-Korean reconciliation.
When it is frustrated by the glacial pace of U.S. engagement, North Korea often engages in provocations that raise tensions and cause further delays. On the other hand, North Korea has responded positively to positive U.S. steps.
Although the Bush administration should be commended for raising the importance of inspections, it must recognize that under the Agreed Framework, North Korea is not yet required to permit them. The United States and its allies should try offering North Korea something in return for early compliance--perhaps a supply of electricity from South Korea. Since 1998, North Korea has been asking for energy to compensate for the long delay in finishing the light-water reactors.
North Korea should be invited to rejoin the IAEA, which it quit in 1994 after the Board of Governors passed a resolution suspending civilian technical assistance. Restoring technical assistance could be an attractive incentive for North Korea, and might improve the relationship between the IAEA and North Korea as well as offer more opportunities for productive interactions between the North and South Korean nuclear establishments.
There are many ways to achieve progress on the Korean peninsula. But it will not happen unless the United States is willing to take part in initiating forward movement. If the Bush administration chooses not to do so, we may have to wait for North Korea to perturb the agenda.
David Albright is the president of the Institute for Science and International Security (ISIS). Holly Higgins is a research analyst at ISIS. Albright is the co-editor of Solving the North Korean Nuclear Puzzle (2000).
Sidebar: Under Mt. Chun-Ma
According to an August 2001 article in Shin Dong-A, a South Korean magazine, Choon Sun Lee, a senior North Korean military official, escaped from North Korea in 1999 and was captured by Chinese authorities and interrogated. Despite efforts by South Korea's intelligence service to bring him to South Korea, China sent him back to North Korea where, according to the magazine, he was probably executed. The magazine claims to have received a copy of the Chinese interrogation report, which was obtained by the South Korean intelligence service.
According to Choon, North Korea operates a secret uranium processing site underneath Mt. Chun-Ma. He said the tunnel entrance to the nuclear site is large and extends back into the mountain about 2.5 kilometers before it turns right and goes another kilometer to the main underground site, which is composed of many large rooms. The facility went into operation in 1989, he said.
His description of the site is detailed, although portions are technically ambiguous. ISIS conducted its own independent analysis and sent the article to several colleagues and knowledgeable officials for their opinions. The consensus is that the facility is most likely dedicated to turning uranium ore into yellowcake, a first step in preparing uranium for use in the nuclear industry. North Korea has said that it has operated uranium processing, or "milling," facilities at Pakchon and Pyongsan, and this site could be a back-up facility.
The site may also contain an underground mine, although the report says uranium ore is trucked in. The product of the facility is sent by helicopter to an underground storage facility in a valley called Pyung-An-Nam An-do Joo-si Gyo-Chang-do (translator's transliteration).
The site under Mt. Chun-Ma is about 30 kilometers from Kumchang-ni, which was the location of a suspected underground reactor or plutonium separation plant that the United States inspected in 1999 and again in 2000. Both visits revealed only an empty tunnel complex.
When the United States was first negotiating access to Kumchang-ni, U.S. officials told their North Korean counterparts that they wanted to inspect an underground facility in the general area. The North Koreans became nervous, according to one account. But when the U.S. officials told them it was the Kumchang-ni facility, the source said, North Korean officials were visibly relieved. Could the North Koreans have been worried about the discovery of the facility under Mt. Chun-Ma?
The International Atomic Energy Agency (IAEA) will likely need to inspect the sites mentioned in the article once it starts its verification effort under the schedule in the Agreed Framework. Although North Korea is not under any obligation to apply IAEA safeguards to these facilities, if it refuses to permit an inspection, the IAEA will not be able to determine that it is not in violation of its commitments.
D. A. & H. H.
?2002 Bulletin of the Atomic Scientists
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The Future of Preemption
From the February 16, 2004 issue: The death of the Bush Doctrine has been wildly exaggerated.
by Max Boot
02/16/2004, Volume 009, Issue 22
Nations and alliances should move early to deal with crises while they are still ambiguous and can be dealt with more easily, for delay raises both the costs and risks. Early action is the objective to which statesmen and military leaders should resort.
--Wesley Clark, "Waging Modern War" (2001)
THE MOST CONTROVERSIAL PART of President Bush's National Security Strategy, unveiled in September 2002, was its mention of preemptive action against "emerging threats before they are fully formed." This has been described by foreign policy mandarins as a diplomatic earthquake that has overthrown decades, if not centuries, of devotion to the doctrines of containment and deterrence. Iraq was widely seen as the test case of this "radical," uniquely "neoconservative" approach.
Now that the occupation of Iraq is approaching the one-year mark, with still no chemical, biological, or nuclear stockpiles found, but plenty of Americans and Iraqis getting killed, learned commentators are proclaiming that the preemption doctrine has disappeared as thoroughly as Iraq's supposed weapons of mass destruction. As early as last summer, Morton Abramowitz, a respected former ambassador and assistant secretary of state, wrote in the Washington Post, "Preemption policy toward 'rogue states' has been eroded." Now, in the Australian, Gideon Rose, managing editor of Foreign Affairs, writes, "The Iraq mission is . . . likely to be the first and last example of preemption in action."
In light of David Kay's report that prewar U.S. intelligence about Saddam's WMD "was all wrong, probably" and various other embarrassments suffered by the Bush administration, as well as the continuing deaths of American soldiers, these arguments cannot easily be dismissed. In fact Kay himself says, "If you cannot rely on good, accurate intelligence that is credible to the American people and to others abroad, you certainly cannot have a policy of preemption." But rumors of the death of preemption are much exaggerated.
In the first place, preemptive war--or even preventive (some say preventative) war where no threat is imminent--was hardly invented by the Bush administration. It has long been an accepted option not only for the United States, but for other nations as well. In his new book, "The Breaking of Nations," Robert Cooper, a career British diplomat who is now a senior European Union official, writes that "the War of the Spanish Succession, fought to ensure that the crowns of France and Spain were not united . . . was a preventative war. No one attacked Britain; but if Britain had allowed the two countries to unite it would by then have been unable to deal with an attack from the resulting superpower."
You don't have to reach back to the 18th century for instances of preventive military action. In 1962 the Kennedy administration seriously considered a military strike to take out the Soviet missiles in Cuba, even though it was highly unlikely they would ever be fired against the United States. Kennedy wisely refrained from launching World War III, but he did undertake a naval blockade (he called it a "quarantine"), which is regarded under international law as an act of war.
Recent U.S. history is replete with smaller-scale instances of preventive action, from the invasion of the Dominican Republic in 1965 to the invasion of Grenada in 1983. In neither case had there been a direct attack on the United States; the threats being addressed (the rise of communism in the Dominican Republic, the cultivation of Grenada as a Soviet and Cuban base) were largely speculative, and many critics charged that they were being blown out of proportion. But Presidents Johnson and Reagan, respectively, thought the dangers grave enough to risk American lives.
More recently, in 1993-94, the Clinton administration seriously considered launching a war to prevent North Korea from acquiring nuclear weapons. Clinton didn't act that time, but in 1998 he did launch strikes against al Qaeda training bases in Afghanistan, a pharmaceutical factory in Sudan, and various Iraqi military installations. The attack on Afghanistan might be seen as a punitive strike since it came after al Qaeda had bombed two U.S. embassies in Africa. But the Sudan strike was mainly preemptive. As recounted by former National Security Council staffers Daniel Benjamin and Steve Simon in their book "The Age of Sacred Terror," the pharmaceutical plant was targeted because it was suspected of making chemical weapons for al Qaeda. National Security Adviser Sandy Berger said he wanted to take it out before nerve gas showed up on the New York City subway.
The Clinton administration launched another preventive war the following year by attacking Serbia in cooperation with its NATO allies. When the military operation started, the ethnic cleansing of Albanian Kosovars was only just beginning. The NATO action, as Gen. Wesley Clark later testified, "was designed to preempt Serb ethnic cleansing and regional destabilization" (italics added). We are today keeping thousands of soldiers in Bosnia and Kosovo, not because there is a war going on but to avert another war from breaking out.
Yet many pundits argue with a straight face that the Bush administration invented preemption. What the Bushies did is simply bring out into the open and make explicit what had been implicit all along: "To forestall or prevent . . . hostile acts by our adversaries," in the words of the National Security Strategy, "the United States will, if necessary, act preemptively." It may be argued that it was unwise to turn what had been de facto into de jure policy. There is no question that, with its bold declaration, the National Security Strategy has alarmed much of the world and some of the American public. It's given rise to nightmare scenarios in which the United States goes around, willy-nilly, invading countries on trumped-up charges and other countries, too, invade their neighbors under the banner of preemption.
The fact that neither has come to pass since the Iraq war last year is hardly proof that such fears are unfounded, but it does, at the very least, indicate they are overblown. India isn't about to nuke Pakistan, claiming a right of preemption. Nations take life-or-death decisions based on their own circumstances, not on what the United States does. The National Security Strategy has not shredded international law or age-old norms of international conduct. The exact conditions that applied in the war on Iraq--a decade-long history chockfull of instances where Saddam broke promises and violated international law--do not apply elsewhere, which helps explain why Bush targeted Iraq and not other rogue states like Iran or North Korea (or Pakistan or Saudi Arabia).
The alarm created by the Bush Doctrine is not entirely a bad thing. It's not only our friends who are worried. So are our enemies. This helps explain Muammar Qaddafi's sudden willingness to give up his WMD arsenal, lest he too wind up in a spider hole trying to evade Delta Force. This may also explain the Iranian mullahs' willingness to accept greater international scrutiny of their nuclear program.
How does this balance out? Do the deterrence benefits of preemption outweigh its public relations costs? Does the image of strength that America projects in the Middle East offset the image of lawlessness that America projects in Europe? At this point it's impossible to say. But whether or not American leaders continue to trumpet a policy of preemption (Bush did not mention it last month in his State of the Union address), it will remain in the presidential toolkit because there is no other plausible alternative for dealing with the mega-dangers we now face. To quote Robert Cooper again: "It would be irresponsible to do nothing while even one further country acquires nuclear capability. Nor is it good enough to wait until that country acquires the bomb. By then the costs of military action may be too high. Hence the doctrine of preventative action in the U.S. National Security Strategy."
But what about the costs of preventive action? Aren't they also too high, as numerous critics of the Iraq war assert? Again, it's impossible to say, because we don't know what would have happened had Saddam Hussein remained in power. It's possible that the policy of containment would have worked, but it seems unlikely. Remember that containment was failing before Bush came into office. Russia, France, and other countries that would sing the joys of sanctions as an alternative to military action in 2002-03 were strongly lobbying, before military action was on the table, to relax or lift sanctions altogether. And the United States and Britain likely would have gone along at some point, if only because the costs of containment were so high. Containment kept tens of thousands of troops surrounding Iraq and dozens of warplanes patrolling the no-fly zones. It also meant conniving in a policy under which the Iraqi people were starved of milk and medicine even while Saddam continued to build all the palaces his sick heart desired. The "oil-for-palaces" program, as one military wag dubbed it, was not a sustainable long-term policy, morally or politically. Something had to give.
Based on what we now know, Saddam had kept at least the nucleus of his WMD program intact, waiting for the day when world attention would wander and he would be free to rebuild his fearsome capacity. According to David Kay's testimony, he was concentrating on developing long-range missiles, in the expectation that warheads would come later. The fact that his nuclear program was less advanced than was commonly believed does not mean he was harmless. As the examples of Iran, Libya, and North Korea demonstrate (all instances where the CIA underestimated WMD development), it is distressingly easy these days to buy nuclear-weapons technology on the black market. Given Iraq's oil wealth, if sanctions had been relaxed, Saddam Hussein would have had the financial resources to become a nuclear menace overnight--as he had almost succeeded in doing before the 1991 Gulf War. It would have been irresponsible of President Bush not to act. (Incidentally, Bush is pilloried by Democrats for not acting on much sketchier evidence before the attacks of September 11.)
None of this is meant to excuse the intelligence lapses that occurred before the war or the nation-building lapses that occurred afterwards. Both are real problems. Bush's commitment to launch an independent probe is a good sign. The United States desperately needs to improve its intelligence and peacekeeping capabilities, though it must be said that no intelligence agency or nation-building bureaucracy could possibly achieve the level of prescience demanded by America's critics. In particular, if as David Kay suggests, Iraqi generals and possibly even Saddam Hussein himself were fooled by corrupt scientists into thinking that they had WMD, how was the CIA supposed to conclude otherwise?
Still, the criticisms of Bush, Cheney, Powell, Rumsfeld, et al., for their prewar claims regarding weapons of mass destruction carry a good bit of sting. The American public and especially other nations may well be wary, absent ironclad proof of a sort that rarely exists, about accepting a future administration's claims that another nation poses a WMD or terrorist threat. This, however, remains mainly a theoretical danger since, for now at least, there is a considerable degree of unanimity between America and its major allies that both Iran and North Korea pose unacceptable risks of nuclear proliferation. Bush has had no problems in getting 10 allies, including Germany and France, to join the Proliferation Security Initiative aimed at forestalling such dangers--another relatively unheralded example of preventive action.
Which is not to say that Bush could get Germany and France to agree to an invasion of Iran or North Korea, even if he were so inclined, which he's not. Yet the fundamental reality is that failed states and rogue states are the biggest challenges faced by the West in the post-Cold War era. There is no reason to think that either deterrence or sanctions are sufficient to deal with these threats. That leaves preemption--a policy urged by no less an authority than Wesley Clark before his foray into politics. Obviously, if the only thing preemption can mean is an Iraq-size occupation, it is not an option that can be hauled out very often. But what if preemption is understood to include military strikes, coalition occupations, and political/diplomatic action?
Many critics and even some supporters of the Bush administration have fostered the illusion that preemption means large-scale military actions on the model of Afghanistan or Iraq, period. This is not what the Bush administration itself intends. While preemptive military action has received all the attention, it actually forms only a small part of Bush's National Security Strategy. Just look at the chapter headings of the strategy: "Champion Aspirations for Human Dignity," "Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends," "Work with others to Defuse Regional Conflicts," "Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction," "Ignite a New Era of Global Economic Growth through Free Markets and Free Trade," "Expand the Circle of Development by Opening Societies and Building the Infrastructure of Democracy," "Develop Agendas for Cooperative Action with the Other Main Centers of Global Power," "Transform America's National Security Institutions to Meet the Challenges and Opportunities of the Twenty-First Century."
Many of these priorities--in particular, expanding capitalism and democracy--are "preemptive" in the broadest sense: They are intended to transform other societies so they will not threaten us in the future. This is not just lofty rhetoric. As seen from Bush's continual harping on the need to spread democracy to the Middle East, the president views this as a major priority, because he understands that catching terrorists isn't enough. We need to stop new recruits from joining the terrorist cause. This is the kind of preemption that should have the widest possible support not only from the president's usual backers but also from Democrats and the French.
Specific actions to push regime change in places like Iran and North Korea are far more controversial. But, whatever happens in Iraq, the United States retains a host of options when it comes to advancing the cause of freedom in nonmilitary ways--by supporting political dissidents, stepping up radio and television broadcasts, and using economic and diplomatic pressure to undermine totalitarian regimes. In other words, the sort of strategy we pursued against the Soviet Union during the Cold War. That policy was hardly limited to passive "containment," as some revisionists now claim. Ronald Reagan waged political, economic, and moral warfare on the "evil empire," and even sponsored proxy wars, but he prudently refrained from direct military attacks. His is a preemptive strategy we can and should apply around the world today.
Timely intelligence about WMD programs in other countries is not strictly essential to this policy. We should aim to hasten the demise of the regimes of Ayatollah Ali Khamenei and Kim Jong Il because those regimes' very existence threatens the people of those countries, neighboring states, and, indirectly, the United States, regardless of their precise current chemical, biological, or nuclear capacity. The regimes themselves are weapons of mass destruction. If this policy had been carried out a little more aggressively before 2003--if George H.W. Bush, Bill Clinton, and George W. Bush had provided more support to anti-Baathist Iraqis--an invasion of Iraq might never have been necessary.
Of course military action can never be ruled out, not least because the very threat of armed intervention makes our diplomacy much more potent. But military action doesn't have to mean hundreds of thousands of troops garrisoning a state for decades. The Israelis showed in 1981, when they bombed Saddam Hussein's Osirak nuclear reactor, how effective a pinprick strike can be. If the Israelis hadn't acted, the world would have faced a nuclear-armed Iraq when Saddam invaded Kuwait in 1991. Unfortunately, various rogue states have taken note of the Osirak example and have taken pains to shield their WMD facilities from air strikes. But during the past two decades the American military's targeting capabilities have advanced immeasurably. The Osirak option remains viable, especially if coupled with a limited insertion of ground troops to direct the airstrikes and oversee the eradication of the suspect facilities.
Special Forces, with or without airstrikes, form another powerful tool to be used against our foes. They are in fact hunting suspected terrorists around the world every day. Not even John Kerry could possibly disagree with this example of preemption.
What about full-scale occupation and nation-building? Is this off the table after Iraq? By no means. In the first place the utility of this option might seem very different in a few years' time if, knock on wood, Iraq becomes a functioning democracy. In the second place, the trend toward international occupations of failed states started long before Iraq. Since the end of the Cold War, Cambodia, Somalia, East Timor, Haiti, Kosovo, Bosnia, Liberia, Sierra Leone, Ivory Coast, the Solomon Islands, and Afghanistan have been occupied for varying lengths of time by foreign peacekeepers. Western countries, including the United States, have no choice but to try to restore some semblance of order in these failed states, lest their problems give rise to WMD development, terrorism, contagious disease, or refugee flows. The trick is to intervene in such a way that the United States doesn't wind up shouldering a disproportionate share of the costs, as it has in Iraq. The obvious answer--easy to formulate, hard to execute--is to build more of an international consensus behind such interventions. This may not have been possible in the case of Iraq, since Gerhard Schr?der and Jacques Chirac were dead set against military action, but it should be more doable in other instances.
In the January/February issue of Foreign Affairs, Lee Feinstein and Anne-Marie Slaughter argue for revising international law--which currently respects national sovereignty above all--to create an obligation for outside intervention should a state commit crimes against humanity, develop WMD, or shelter terrorists. They argue that "the biggest problem with the Bush preemption strategy may be that it does not go far enough," because it doesn't advocate a global "duty to prevent" wrongdoing.
These aren't the ravings of crackpots, warmongers, or neocons. Feinstein served in the Clinton State Department and today is a senior fellow at the Council on Foreign Relations. Slaughter is dean of Princeton's Woodrow Wilson School of Public and International Affairs and president of the Society of International Law. They're both liberals, but they realize there is an overwhelming imperative for "early and effective collective action" when "faced with the prospect, as in Iraq, of a brutal ruler acquiring nuclear weapons or other weapons of mass destruction."
Here's a counterintuitive possibility: The Iraq war, by showing the limits of national sovereignty, may wind up expanding preemptive interventions rather than extinguishing them. Sure, this is speculation. But while it may be premature to suggest that the ideas advocated by Feinstein and Slaughter will become reality, it's no more premature than claiming that preemption is finished. In all likelihood, it's only just begun.
Max Boot is Olin senior fellow at the Council on Foreign Relations. He is a contributing editor to The Weekly Standard and a weekly columnist for the Los Angeles Times.
? Copyright 2004, News Corporation, Weekly Standard, All Rights Reserved.
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It's Not Always What You Know
From the February 16, 2004 issue: In the nonproliferation arena, political failures outweigh intelligence blunders.
by Henry Sokolski
02/16/2004, Volume 009, Issue 22
BOTH ZEALOUS CRITICS and supporters of President Bush's war against Saddam seem finally to have agreed on one thing--the Central Intelligence Agency goofed. The president's own Iraq weapons sleuth, David Kay, now asserts that our intelligence on Iraq was simply wrong, that Saddam didn't have weapons of mass destruction in 2003. This intelligence failure must be corrected, it is argued, lest we make fresh mistakes against the strategic weapons programs in North Korea and Iran. Hence, President Bush's announcement last week of a special panel to investigate our intelligence agencies' performance on Iraq.
Implicit in all this is a belief that our government cannot succeed in its fight against proliferation of WMD unless our information on other countries' covert weapons programs is dramatically improved. "Pristine intelligence--good, accurate intelligence--is a fundamental benchstone of any sort of policy of preemption to even be thought about," as David Kay said. This seems plausible. What serious policymaker would insist on getting less intelligence?
Ultimately, however, the clamor for more specific proliferation information is wrongheaded. Washington's problem isn't its sorry supply of good tactical intelligence on covert strategic weapons programs. Such intelligence has rarely been good and is unlikely to get much better. Instead, the challenge in nonproliferation has been the dearth of senior officials willing to respond to the generally sound strategic warnings our intelligence agencies produce years before any proliferation becomes a crisis. Far from heeding such warnings, policymakers often wish them away. This unwillingness to act on early intelligence warnings is the exact opposite of the problem everyone is now focusing on.
Our intelligence agencies have in fact never been very good at pinpointing specific proliferation activities. U.S. intelligence got cold-cocked by the Soviets' first nuclear test in 1949; by India's nuclear tests in 1974 and 1998; by Israel's nuclear weapons deception efforts in the 1960s; and by Iraq's, Iran's, Pakistan's, and North Korea's strategic weapons programs in the 1970s, '80s, and '90s. All these tactical intelligence failures, though, were predictable. Unlike monitoring conventional arsenals--military forces that are hard to hide and rarely worrisome unless they're quite large--tracking small (but more deadly) covert missile, nuclear, biological, and chemical programs is highly prone to error. That's why the spread of these latter capabilities is a much greater threat than the acquisition of more common military systems.
Trying to fix this intelligence weakness--the presumed aim of the Iraq intelligence investigations--may not be a fool's errand, but it's unlikely to succeed. Certainly, by the time our intelligence agencies could ever prove they knew exactly what other nations had in the way of strategic weapons capabilities and identified precisely where these capabilities were, the only options left to reverse what they had discovered would be to bomb or bribe--extreme measures neither of which is very attractive.
Washington has long grappled with this truth. In some cases, it has done well. With Taiwan's, South Korea's, and Ukraine's nuclear weapons aspirations and the large-rocket ambitions of Argentina, Iraq, Egypt, and South Africa, U.S. officials chose to act upon receiving the earliest strategic intelligence warnings. None of these countries completed the programs it began; all were quietly nipped in the bud.
More often, though, U.S. officials have taken a more cowardly course, downplaying initial proliferation reports, especially when they involved nations Washington wanted to engage. Thus, U.S. officials were skeptical of the early intelligence that highlighted Israel's nuclear program in the 1960s, Iraq's and South Africa's nuclear weapons activities in the late 1970s, Pakistan's nuclear weapons efforts in the 1980s, and Iran's and North Korea's in the 1990s. Early evidence of China's, Russia's, and, more recently, Pakistan's illicit strategic assistance to these nations was similarly viewed with reservation.
This caution did little to encourage intelligence analysts tracking these proliferators. Thankfully, though, after 9/11, this reluctance receded: For the first time, a president publicly emphasized the desirability of acting against proliferators whenever and wherever practical. This helped put fighting proliferation back on the policy map, but it also had a downside: The increased interest in reporting proliferation developments focused attention on what little tactical information we had.
In the case of Iraq--a nation with a clear intent and history of acquiring and using strategic weapons capabilities and a persistent and annoying habit of openly defying U.N. inspections and dismantlement resolutions--policymakers and intelligence analysts leaned forward, emphasizing specifics that turned out to be wrong. Many of Saddam's strategic weapons capabilities, it now appears, were either dismantled in the early 1990s or bombed during Clinton's second term.
This gaffe is hardly good news, but it's not nearly as bad as Washington pundits are making it out to be. As they see it, the lesson to be learned (and, if we are not careful, to be driven home by the newly announced investigations) is that the United States must be more cautious in acting against proliferation, lest it repeat the Iraqi error. And what error was this? Attacking Saddam on the basis of insufficient proliferation intelligence.
Yet, surely, this was not our key mistake. Instead, it was waiting as long as we did to act against Saddam's strategic weapons ambitions and his hostility to us, the U.N., and his own population. We had abundant strategic intelligence on this, and had it for two decades or more, but we chose to ignore it. Instead, we actually supported Saddam financially and militarily and sent him the dual-use goods he needed to pursue his strategic weapons programs.
Had we taken a different course when the first intelligence reports emerged about his nuclear ambitions 25 years ago (and his subsequent military buildup), we might have been able to avoid not just one, but both wars we waged against him. The problem wasn't a lack of intelligence on Saddam's strategic weapons programs. It was a lack of will to use the sound strategic warnings we had.
Certainly, before investigations get underway and recommendations start flying to centralize our intelligence agencies further and spend ever more money on more layers of management and new sources of intelligence, we would do well to focus on our uneven use of accurate early warnings. In the end, knowledge of proliferation specifics is the least of our problems.
Henry Sokolski is the executive director of the Nonproliferation Policy Education Center and editor with Patrick Clawson of "Checking Iran's Nuclear Ambitions" (Army War College, 2004).
? Copyright 2004, News Corporation, Weekly Standard, All Rights Reserved.
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USAWC STRATEGY RESEARCH PROJECT
"ALL NECESSARY MEANS" - EMPLOYING CIA OPERATIVES IN A WARFIGHTING ROLE
ALONGSIDE SPECIAL OPERATIONS FORCES
by
COLONEL KATHRYN STONE
United States Army
Professor Anthony R. Williams
Project Advisor
The views expressed in this academic research paper are those of the
author and do not necessarily reflect the official policy or position of the
U.S. Government, the Department of Defense, or any of its agencies.
U.S. Army War College
CARLISLE BARRACKS, PENNSYLVANIA 17013
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ABSTRACT
AUTHOR: Colonel Kathryn Stone
TITLE: "ALL NECESSARY MEANS" - EMPLOYING CIA OPERATIVES IN A
WARFIGHTING ROLE ALONGSIDE SPECIAL OPERATIONS FORCES
FORMAT: Strategy Research Project
DATE: 07 April 2003 PAGES: 55 CLASSIFICATION: Unclassified
In response to the terrorist attacks on the United States on 11 September 2001, the President -- as both Commander-in-Chief and as authorized by Congress in Joint Resolution 23 -- ordered our armed forces into combat in order to disrupt and defeat the global terror network. The President concomitantly signed a Presidential Finding directing the Central Intelligence Agency (CIA) to use all necessary means to destroy Osama bin Laden and Al Qaeda. As a consequence of these orders, CIA paramilitary operatives have been performing a warfighting role alongside Special Operations Forces (SOF) in the war against terrorism. This strategy research paper explores the respective roles and missions of the CIA and SOF, their legal authority to execute their assigned missions, the policy advantages and disadvantages of integrating their warfighting operations in combat, and the legal and operational ramifications of such integrated combat operations. The paper concludes that integrated combat operations between the CIA and SOF are an appropriate template for warfare in certain situations, provided we develop and adhere to clear, well-understood criteria to manage this CIA-SOF warfighting relationship.
The war against terrorism is a fight for the preservation of our national interests and values, our way of life, and the very future of our country. We must employ every element of national power -- all necessary means -- in its prosecution. While managing the CIA-SOF warfighting relationship will present significant challenges, those challenges can be minimized in a manner that both preserves the combatant commander's flexibility and capitalizes on each agency's strengths and capabilities.
PREFACE
This paper is dedicated to Judge Advocates everywhere who toil industriously but unremarked in loyal support and defense of our country and the rule of law.
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"ALL NECESSARY MEANS" - EMPLOYING CIA OPERATIVES IN A WARFIGHTING ROLE
ALONGSIDE SPECIAL OPERATIONS FORCES
I wish to be useful, and every kind of service necessary to the public good becomes honorable by being necessary.
?Nathan Hale
This research paper looks at the separate roles, missions, and responsibilities of Central Intelligence Agency (CIA) paramilitary operatives and the Department of Defense (DOD) Special Operations Forces (SOF); the new and apparently ad hoc policy of integrating their operations together in combat; and the legal ramifications of such warfighting integration. This paper will be based on open source materials and media accounts of the CIA's involvement in the war against terrorism. This paper is intended as a general discussion vehicle for those legal issues associated with the employment of CIA paramilitary operatives in a warfighting role alongside SOF, and does not purport to speak with any operational authority regarding the conduct of CIA activities; nor does it discuss the wide range of traditional CIA activities that might be involved in the war against terrorism.
On September 11, 1999, a small number of operatives from the CIA were in Afghanistan. They were there in a non-combat mode for the purpose of recruiting sources, supporting anti- Taliban warlords and their operations, liaising with members of the Northern Alliance,1 and generating intelligence on Osama bin Laden2 and his Al Qaeda3 terrorist organization. 4 Two years later, on September 11, 2001, the United States was attacked by terrorist hijackers who flew three airliners into both towers of the World Trade Center in New York City, and the Pentagon in Washington, D.C. A fourth hijacked airliner, heading in the direction of Washington, D.C., crashed instead in a rural section of Pennsylvania.5 These terrorist acts6 killed over 3000 people and caused an estimated national economic loss of over $ 33 billion.7 The evidence soon concluded that these acts of terrorism -- which amounted to an act of war8 -- were committed by members of the terrorist organization known as Al Qaeda, and masterminded by Osama bin Laden.
On September 14, 2001, the United States Congress passed a joint resolution authorizing the President of the United States, George W. Bush, to "use all necessary and appropriate force" against those who were involved in the terrorist attacks that occurred against the U.S. on
2
September 11, 2001.9 Close in time, President Bush signed a Memorandum of Notification* ordering the CIA to "use all necessary means" to destroy bin Laden and Al Qaeda.10 Consequently, CIA paramilitary teams were on the ground in Afghanistan "within days" of the attacks on New York and the Pentagon, "trained not just to observe conditions but if need be to change them," according to the CIA Deputy Director for Operations.11 President Bush's Finding ordering the CIA to "use all necessary means" to destroy bin Laden and Al Qaeda meant the inserted CIA officers were legally free to identify Taliban and Al Qaeda targets for the Northern Alliance to attack; to accompany Northern Alliance and U.S. SOF units (when they arrived) on their combat missions against the Taliban; and to call in U.S. airstrikes against the Taliban and Al Qaeda.12
On September 24, 2001, a few days after the Presidential Finding, President Bush, acting pursuant to his Constitutional authority to conduct U.S. foreign relations and as Commander-in- Chief and Chief Executive, ordered the deployment of various combat equipped and combat support forces to several foreign nations in the Central and Pacific command areas of operations in order to prevent and deter further acts of terrorism.13 Two weeks later, on October 7, 2001, President Bush announced that he had ordered the U.S. military to begin strikes against Al Qaeda terrorist training camps and Taliban14 military installations in Afghanistan in order to disrupt the use of Afghanistan as a terrorist base of operations and to attack the military capability of the Taliban regime.15
CIA paramilitary operatives entered Afghanistan on 26 September 200116 ahead of U.S. Special Operations Forces (SOF) in order to link up with Northern Alliance17 forces, secure helicopter landing zones for follow-on SOF, and guide SOF teams -- who arrived with their arsenal of laser target designators to enable U.S. aircraft to strike Taliban positions -- to the enemy.18 These CIA officers were inserted ahead of the SOF because of their ability to get on the ground quickly, their language skills and knowledge of the terrain, and their existing contacts with anti-Taliban groups.19 At the same time, U.S. military forces continued to flow quickly into Afghanistan, Uzbekistan, Pakistan, and the Arabian Sea, while the CIA continued to increase its activity in the region, adding logistics hubs, communication sites, and command and control centers and capabilities. All of this CIA paramilitary activity -- identifying targets, accompanying the Northern Alliance and SOF into combat, calling in airstrikes -- amounts to a warfighting role in the war against terrorism that continues today.
* Commonly known as a Presidential Finding.
3
CURRENT UNITED STATES POLICY
OBJECTIVE (ENDS)
The President's strategic objective is to win the global war on terrorism by employing all instruments of national power at his command, not just military power: "We will direct every resource at our command - every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence and every necessary weapon of war - to the disruption and to the defeat of the global terror network."20 The important point about the President's objective ("end") is that the war on terrorism is global in nature and directs multiple elements of U.S. national power against all terrorists who threaten U.S. interests; the war is not just about the destruction or capture of Al Qaeda.21 This integration of all elements of national power is also one of the unifying themes of the 2002 National Military Strategy (pre-decisional draft) - to integrate military activities and operations with activities across the interagency spectrum.22
WAYS
Although CIA operatives have worked with U.S. military forces in the past,23 their current warfighting operations in Afghanistan constitute the Agency's "most sweeping and lethal" covert action since its statutory founding in 1947 and signal a major return to the Agency's paramilitary involvement in armed conflicts.24 This new policy, or course of action -- using CIA paramilitary operatives in a warfighting role alongside SOF (e.g., calling in airstrikes, accompanying SOF and Northern Alliance groups on combat missions, and other clandestine combat operations) -- epitomizes the President's determination to win the war on terrorism using all elements of national power, and constitutes "unprecedented" coordination between the CIA and SOF military units.25
According to Bob Woodward of the Washington Post, administration officials have said that President Bush has "pledged to dispatch military units to take advantage of the CIA's latest and best intelligence."26 For example, according to one reporter, Dana Priest, Washington Post Staff Writer, it took just 316 SOF soldiers* to oust the Taliban from power, with nearly every Ateam including one or two CIA operatives.27 Priest even describes a mission briefing given by a CIA operative to both CIA and SOF personnel.28 Other U.S. sources have said that SOF have been "seconded" to the CIA for paramilitary operations in Afghanistan.29 In his book, Bush at War, Bob Woodward quotes the Chairman of the Joint Chiefs of Staff, General Richard B. * Eighteen A-teams, four company-level units and three battalion-level commands, all reporting to a Joint Special Operations Task Force in Karshi, Uzbekistan, 100 miles north of the Afghanistan border.
4
Myers, as telling President Bush, "We're ready to put Special Forces on the ground with CIA forces."30 Woodward also quotes "Hank," the CIA's counterterrorism special operations chief, as saying in a message to CIA assets in the field that, among other things, "we are fighting for the future of CIA/DOD integrated counterterrorism warfare around the globe . . . [w]hile we will make mistakes as we chart new territory and new methodology, our objectives are clear, and our concept of partnership is sound."31
Regardless of who is seconded to whom, however, it is clear that the war in Afghanistan highlights not just the tight integration, but also the erosion of distinctions between SOF and the CIA in the war against terrorism. Past administrations made more of an effort to differentiate between military combat activities and CIA missions.32 In the war on terrorism, however, the Bush Administration has gradually blurred these distinctive lines in response to an asymmetrical, non-State threat that requires greater coordination and cooperation among intelligence, military, and law enforcement officials.33
RESOURCES/MEANS
To accomplish his strategic objective and resource this course of action, President Bush ordered the use of all necessary means.34 This order in turn generated an operationally-driven ad hoc relationship between CIA paramilitary operatives and SOF on the ground in Afghanistan that resulted in improved lethality and agility on the battlefield stemming from each group's distinct contribution to warfighting. For example, Jim Pavitt, head of the CIA's clandestine service, acknowledged publicly in a speech that the CIA's covert operations inside Afghanistan immediately after September 11 paved the way for follow-on SOF and the resulting rout of the Taliban in the fall of 2001.35 Clearly then, working together, the CIA's and SOF's respective capabilities complimented each other in a manner sufficient to ensure the defeat of the Taliban. According to one author, this new type of operation involving "fastmoving CIA paramilitary teams" and SOF may well "serve as a model for future encounters against terrorism in other parts of the world . . . [t]he dramatic success of specialized use of reconnaissance weapons and a dynamic, small-unit combat strategy obviated" the need to deploy large numbers of ground troops.36
Clearly, the full spectrum dominance bought with this CIA-SOF integration of warfighting capabilities has produced a new, successful battlefield synergy. Improving the ways of warfighting by integrating all means has resulted in a synergy that has not only succeeded, but that has transformed the traditional view on the prosecution of armed conflict.
5
RISKS
This multidimensional integration is not without significant legal and operational risks, however. The CIA and SOF communities possess very distinct identities and mandates, with separate legal authorities, operating structures, and methods of organization. Though this relationship between the DOD and CIA has been successful to date, and was praised by Secretary of Defense Donald Rumsfeld (who was also Secretary of Defense in the mid-1970s) in February 2002 as "good as I've ever seen it . . . They've got a darn good record . . . .,"37 the relationship has not been without problems that deserve attention. To understand the context of these problems and their associated issues, however, this paper must first review the statutory basis, and roles and missions, of the DOD, SOF and the CIA.
DOD AND CIA AUTHORITIES AND MISSIONS
Separate groups of Constitutional authorities, statutory authorities and responsibilities, and executive orders separate the CIA and DOD/SOF, which in turn delineate separate divisions of responsibility for national security.
DEPARTMENT OF DEFENSE
Legal Authority
Constitutional. The legal authority for the existence of the armed forces is set forth in Articles I and II of the U.S. Constitution. Specifically, Article I, Section 8, provides that the Congress shall have the power to raise and support Armies, to provide and maintain a Navy, and to make rules for the government and regulation of the same. Article II, Section 2, provides that the President shall be Commander-in-Chief of the Army and Navy of the United States.38 Statutory (U.S. Code). While the U.S. Constitution provides the overarching genesis of authority for the armed forces, Title 10 of the United States Code fills in the blanks by codifying in more concrete terms the statutory authority, and broad missions and functions, of DOD.39 Roles and Missions DOD Writ Large. Of more practical daily use is the delineation of DOD's mission statement in DOD Directive 5100.1, Functions of the Department of Defense and its Major Components. Specifically, as prescribed by higher authority (i.e., U.S. Code Title 10), the DOD "shall maintain and employ Armed Forces to: Support and defend the Constitution of the United States against all enemies, foreign and domestic; ensure, by timely and effective military action (emphasis added by author), the security of the United States, its possessions, and areas vital
6
to its interests; and uphold and advance the national policies and interests of the United States.40
SOF. Wartime special operations conducted by U.S. armed forces are as old as the American Revolutionary War, in which General George Washington approved a plan for several of his soldiers to capture the traitor Benedict Arnold and return him to American control.41 In 1986, as part of the Goldwater-Nichols Department of Defense Reorganization Act,42 Congress consolidated all SOF from all the services into one new command, the U.S. Special Operations Command. This reorganization resulted in large part from the failed 1980 Desert One operation to rescue American hostages in Iran, which exposed shortfalls in the training and equipping of SOF and highlighted in tragic form the neglect that the covert side of warfare had suffered for far too long.43
SOF forces conduct special operations missions and activities in war and peace, either independent from or integrated with conventional military operations.44 While special operations encompass the use of small units in direct or indirect military actions, they are usually focused on strategic and operational objectives, which are frequently shaped by political-military considerations, thereby requiring "clandestine, covert, or low-visibility techniques and oversight at the national level."45 SOF units consist of combinations of specialized personnel, training, equipment, and tactics that exceed the routine capabilities of conventional military forces.46 Importantly, unless otherwise directed by the President or Secretary of Defense, a special operations activity or mission is supposed to ["shall"] be conducted under the command of the unified combatant commander47 in whose geographic area the activity or mission is to be conducted.48 Secretary of Defense Donald Rumsfeld's recent change establishing the U.S. Special Operations Command as both a supported and supporting command may require a change to Title 10 of the U.S. Code.
The current National Military Strategy of the United States provides that the Armed Forces "are the Nation's instrument for ensuring our security," their primary purpose is to "defeat" threats of violence against the U.S. should deterrence fail, and their foremost task is to "fight and win our Nation's wars."49 The Pre-Decisional Draft of the 2002 National Military Strategy of the United States of America, dated 19 September 2002, continues the theme of the previous strategy by stating that our national military objectives remain, among other things, to "defend the Nation" and "win the Nation's wars."50 However, the Constitution does not dictate how (ways) our country should be protected, or what our national security establishment should specifically look like. This flexibility in national defense has produced various statutory and regulatory forms
7
of national security organization, to include the National Security Act of 1947,51 which is codified in portions of Titles 10, 32 and 50 of the United States Code.
CENTRAL INTELLIGENCE AGENCY
Legal Authority
Statutory (U.S. Code). The legal basis for the CIA is set forth in the National Security Act of 1947, which established the CIA and the DOD, among other agencies.52 Constitutional. Intelligence operations are as old as our Nation, as noted in the 64th Federalist, which "commended" the new U.S. Constitution, in granting power to the President to make treaties, for providing the means (resources) "by which the President could `manage the
business of intelligence in such a manner as prudence may suggest.'"53
Roles and Missions
Definition of Covert Action. One of the CIA's several missions, among other duties and responsibilities related to intelligence functions, is to conduct special activities approved by the President.54 Special Activities were defined by President Reagan in Executive Order 12333, United States Intelligence Activities, dated December 4, 1981, and still in effect, as "activities conducted in support of national foreign policy objectives abroad which are planned and executed so that the role of the United States Government is not apparent or acknowledged publicly."55 In fact, no agency except the CIA may conduct any special activity unless the President directs such, and the CIA itself must have a Presidential Finding in order to conduct special activities or covert action.56 The U.S. military may also conduct special activities during a time of war declared by Congress or during any period covered by a report from the President to the Congress under the War Powers Resolution.57
According to one author, Executive Order 12333's reference to "special activities" is a euphemism for "covert action."58 In fact, 10 years later, in the Intelligence Authorization Act of 1991, Congress provided a detailed definition of covert action that closely resembles the definition of "special activities" in Executive Order 12333, specifically: an "activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include . . . traditional . . . military activities or routine support to such activities."59 This language -- the definition of covert action in the 1991 Intelligence Authorization Act -- is mirrored in Title 50, U.S. Code, Section 413b(e)60and remains
8
the controlling legal definition for covert action today, even though Executive Order 12333 -- and its definition of "special activities" -- remains effective as well. In plain language, then, covert action is action designed to produce certain results in foreign countries without such action being clearly and openly identified with the United States. Accordingly, because it can be a convenient and stealthy tool for the execution of foreign policy, covert action has been the traditional tool of U.S. Presidents when confronted with problems that have not responded to other tools of statecraft pressure.61 Former Director of Central Intelligence Stansfield Turner explained it best when he stated, "Covert action is not intelligence. Covert action is the conduct of foreign policy. Its object is to affect the course of events, not to inform our policy makers about events."62 Further, the most extreme form of covert action -- paramilitary operations -- can be described as secret wars, according to David Isenberg, a research associate at the Washington-based Cato Institute Project on Military Procurement.63 Legal Authority for Covert Action. Interestingly, the National Security Act of 1947 did not explicitly indicate that the CIA as an agency should or would engage in covert action, nor did it specify therein that covert action is one of the CIA's assigned missions.64 In fact, nowhere in the Act was covert action mentioned, although some have argued that the Act's legislative history indicates an intention for the CIA to collect intelligence by engaging in espionage (vice covert action) abroad.65
Accordingly, the CIA's covert action mission, and underlying capability attendant thereto, have an ambiguous foundation. Nevertheless, successive Presidential administrations have found statutory authority for the CIA to conduct covert action in an obscure phrase in the agency's basic charter, wherein the "CIA is given the duty `to perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct.'"66 The U.S. Congress "acquiesced" in this interpretation;67 and early National Security Council directives during the Cold War instructed the CIA to conduct paramilitary operations as part of the U.S. effort to contain the former Soviet Union.68 During the 1950's, "more and more covert operations were assigned to the CIA because State and Defense did not want to do them in the open or because the simplest and fastest way to get something done was to assign the job to the secret arm."69
Interestingly, the CIA's first general counsel, Lawrence R. Houston, who helped draft the Act establishing the CIA, has stated that the clause permitting the CIA to engage in "such other functions" referred only to intelligence collection and not to covert action, and that the CIA was stretching the law's original intent by using the "such other functions" clause to justify covert action.70 According to Houston, "all during this drafting of the Act, all during the presentations to
9
congressional committees, there was no mention of covert action. . . It was entirely intelligence . . . That was [to be] the sole product."71 After the Act was passed into law, however, and at the request of Truman administration officials, Houston wrote a legal opinion stating that the CIA could legally execute covert action if the President gave it a directive to do so and if Congress funded the action. 72
Thus began the dawn of CIA covert actions, and U.S. Presidents have "systematically employed [the CIA] as a mechanism through which they can . . . carry out military actions (emphasis added) without the armed forces."73 The Intelligence Authorization Act of 1991, codified in Title 50, U.S. Code, Section 413 and discussed above, further solidified in statute the definition of, and authority to conduct, covert action. One type of covert action that closely resembles military action is the CIA's paramilitary operations, or, according to one author, "unconventional warfare: to support or stimulate armed resistance elements in their homeland against the regime in power, or to employ irregular troops to invade a country and unseat its regime - or a combination of both."74 The President may not authorize the conduct of a covert action, however, unless he determines such an action is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States. That determination must be set forth in a written finding.75 Further, each finding must specify each agency or other U.S. Government entity that is authorized to fund or otherwise participate in any significant way in such covert action,76 and no finding may authorize any action that would violate the Constitution or any statute of the United States.77 CIA Support to Military Operations. While America's history of covert action dates back to the colonial era, when Revolutionary officials conspired with certain Bermuda officials to "obtain" a store of gunpowder from the Royal Arsenal at Bermuda,78 the "CIA's" history of support to U.S. military operations is also not new, but began immediately upon the birth of the CIA's predecessor agency.
"CIA" support to military operations originated during World War II, with the creation of the Office of Strategic Services (OSS), which built for its own use a covert paramilitary force.79 OSS officers ran commando operations in Europe, acted as guides in the Allied landings in North Africa in 1942, conducted sabotage to support the Allied landings in Normandy in 1944, established effective intelligence sources and networks, provided technical and logisticalsupport to resistance groups and fighters, and worked to coordinate paramilitary activities with conventional military operations.80 Of note is the fact that OSS agents also received instructions from military commanders, and "reported on the results of sabotage missions and the effectiveness of Allied bombing."81 According to Charles D. Ameringer in his book, U.S. Foreign
10
Intelligence - The Secret Side of American History, OSS field activities were under the control of the theater commanders.82
CIA paramilitary operatives continued to operate with U.S. military forces in Korea, Vietnam, and the Gulf War, and in recent years the Agency has actually been tasked to provide direct support to military operations and deployments.83 With the exponential growth in U.S. military peacekeeping deployments in the 1990s, there was a concomitant need by the Armed Forces for ever more tactical intelligence support, and President William Clinton supported that need by issuing a 1995 Presidential Order (Presidential Decision Directive (PDD) - 35) instructing the Intelligence Community to provide the military with the tactical intelligence it needed.84 During a visit to CIA headquarters a few months after issuing PDD-35, President Clinton explained his directive and emphasized that the intelligence community's "first priority was to support `the intelligence needs of our military during an operation,' and that commanders in the field needed `prompt, thorough intelligence to fully inform their decisions and maximize the security of our troops.'"85
According to CIA officials, however, this resulted in a "diversion of shrinking national strategic (emphasis added) intelligence resources to growing, tactical (emphasis added) missions."86 Despite other warnings from intelligence community officials that DOD budgetary cuts were forcing the armed forces to "trim [their] tactical intelligence programs" and thereby shift their work to the "national" intelligence services, Congress did not resist this "shift of national means to tactical ends."87 Whether this is a smart move in the long run is not within the scope of this paper. However, as will be discussed later in this paper, U.S. Central Command is successfully fighting the war against terrorism by using the CIA, a national strategic resource (means), in an operational/tactical-level warfight (ways) in order to achieve both the President's strategic objective (win the war on terrorism) and the operational-level objective (disrupt the use of Afghanistan as a safe haven for terrorists and destroy the military capability of the Taliban and Al Qaeda).
COVERT ACTION WITHIN DOD
Integrated CIA-SOF combat operations in support of Operation Enduring Freedom have transcended the typical forms of unconventional warfare performed by each agency and have even been described as a new template for warfare. Despite the successful resurgence of CIA paramilitary covert action in the war against terrorism in Afghanistan, however, one CIA veteran has told Bob Woodward of the Washington Post that the CIA is "not fully equipped or trained" to perform the high-risk operations that President Bush directed in his Presidential Finding
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ordering the CIA to "destroy bin Laden and Al Qaeda," since the Directorate of Operations, which runs covert actions, "has been out of the business of funding and managing lethal covert action" since the end of the Cold War.88 This opinion, although certainly not dispositive, is not new. Back in 1987, Allan E. Goodman, relying on former CIA Director Stansfield Turner's contention that a majority of espionage professionals believe that covert activities detract from the CIA's primary mission to collect and analyze intelligence, proposed that covert action should be limited to paramilitary operations and given to the Department of Defense.89 Even earlier, in 1975, Harry Rositzke championed the transfer of paramilitary covert action (a subset of covert action) to the Department of Defense based on his belief that the "self-defeating amalgam of covert action and secret intelligence in one organization was key to the CIA's ineffectiveness."90 It would seem that the CIA has never seen a time in its history when someone has not been declaring the ineffectiveness of its covert actions, as many others over the years have also called for the transfer of paramilitary covert actions to the Department of Defense. Rositzke's proposal to transfer the CIA's paramilitary operations to DOD makes somewhat more sense than Goodman's proposal to limit all covert action to paramilitary covert action and also transfer such to DOD. By limiting covert action to only paramilitary action, Goodman's proposal would remove from the CIA's arsenal those non-paramilitary intelligence tools that are not appropriate for DOD or any other government agency to execute, such as influence operations, press placements, exfiltration operations, etc. Limiting covert activities to paramilitary operations would also severely restrict the President's ability to conduct effective foreign policy. In addition, the transfer of covert paramilitary operations to DOD would confront the military with an operational problem for which it has no prior history - i.e., the possibility that a military operation would have to be undertaken in the context of official deniability. If the covert military operation was of vital interest to U.S. security but also extremely sensitive, the President would be vulnerable to the unfortunate possibility that one day he might have to choose between abandoning military personnel in the field in order to maintain plausible deniability, or acknowledging the covert activity, with all the second and third order affects attendant thereto.
This leads to another issue. The use of formal military force to conduct a covert military operation amounts to an act of war in terms of international law. If such an operation were undertaken and was somehow discovered and publicized, the President would not only lack plausible deniability, but unless he was prepared to punish severely the military personnel involved (which would be extremely difficult to do if he directed or "permitted" the operation), the Nation would face de facto and de jure a condition of war that had not been authorized by
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Congress. By using the CIA, or some other non-military organization to undertake such missions, the President at least fuzzes the legal issue of an act of war. While it is true that CIA covert actions can themselves amount to an act of war, the President can use the CIA to engage in an act of war without U.S. fingerprints. This capability lies in the CIA's lap for a reason.
The following example is illustrative and assists our analysis here. U.S. intelligence sources discover an Al Qaeda command and control headquarters in a friendly country, and the President decides it must be destroyed. If responsibility for paramilitary covert action were to lie with the Department of Defense, then the President would direct the Secretary of Defense to conduct a deniable covert operation to destroy the terrorist headquarters. Technically, the Department of Defense could execute the mission with minimal difficulty. SOF possess the required skill-sets and would need only to render anonymous their fingerprints: no uniforms or other identification tags associated with the U.S., and no weapons traceable back to the U.S. Operationally, however, several roadblocks present themselves.
By entering the friendly country with military forces in execution of a military mission, the U.S. has committed an act of war even though our interest lies not with them but in the terrorist headquarters. [Note: This is so regardless of whether the mission is executed by SOF in a covert mode or in a public mode, or whether it is executed by CIA paramilitary operatives, for that matter]. The Secretary of Defense's tasking to U.S. Special Operations Command to execute this covert action ("act of war"), however, works smoothly only if we can get SOF into and out of Pakistan without their being noticed. In that case, we have a de facto war that is deniable. If any of the SOF are captured or killed, however, we have a de jure act of war. Most of the world has come to look at CIA de facto wars as a way of life because most powers benefit from their own CIA-equivalents operating in foreign countries, with nothing to be gained politically by claiming an act of war when another's covert action is discovered. The world, however, is not likely to tolerate the U.S. throwing its regular military muscle around in a covert fashion. The world will rightly ask: Where does it stop? If the U.S. employs SOF to conduct deniable covert action, then is the next step a clandestine tomahawk missile strike, or maybe even a missile strike whose origin is manipulated to conceal U.S. fingerprints? By abdicating their open identification as U.S. military personnel, SOF would forfeit their Geneva Conventions status. This is important not just because of their loss of entitlement to prisoner of war status should they be captured, but also because of their loss of lawful combatant immunity against charges of spying, or murder for anyone they killed in the operation. SOF in this scenario could also be considered unlawful combatants.
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There is another consequence if SOF forfeit their U.S. identity in a covert military operation. If they are killed, the lack of evidence associating them with the U.S. would preserve the President's plausible deniability option, and the dead SOF personnel would not be affected because they are, after all, dead. If SOF are captured, however, the issue is more difficult. The President could continue to plausibly deny the operation in spite of claims by the captives that they are U.S. military personnel, although such claims would undoubtedly muddy the political waters, create a public relations challenge, and embarrass the President. The more significant aspect to the President's decision to continue denying the operation would be that the SOF captives could expect to receive no protection or help from the U.S. If the CIA were to conduct the operation, however, these issues disappear because CIA paramilitary operatives are trained -- from their first day in that specialty -- to accept as part of their mission the requirement to operate in the "cold," without protection or help from their Government. It is unlikely that the Secretary of Defense or anyone else could lawfully order SOF personnel to conduct a covert action that would require them to forfeit their Geneva Convention status in order to retain deniability. Clearly a commander could issue a lawful order to SOF to conduct a covert operation, but no one can order military personnel to forfeit their status asotherwise lawful combatants in the execution of that mission. This is problematic. Covert actions are not covert if they lose their anonymity and deniability. SOF personnel, however, although permitted to reduce their operating profile like any good soldier, can be required only to maintain the secrecy of their mission, not to actively hide their military identity to their detriment. Accordingly, the Department of Defense would be seriously limited in its ability to execute successful covert military operations that are anonymous and deniable. This dilemma could be solved if there is found within the SOF ranks a sufficient number willing to forfeit this status. The method used to solicit such "volunteers," however, is fraught with the dangers of undue influence, peer pressure, traditional military values, the U.S. public's long-standing expectations of how their SOF sons and daughters will be treated at the hands of the enemy, and, perhaps most important, informed consent.
Lastly, some form of legal instrument would likely be needed to empower and direct the Department of Defense to conduct the type and scope of covert actions heretofore conducted under the CIA's domain. Regardless of the necessary legal mechanism, however, the issues discussed above highlight the complications associated with tasking the Department of Defense to conduct covert actions. In the 2004 defense budget Secretary of Defense Donald Rumsfeld provided the U.S. Special Operations Command with more budget authority and manpower to enable it to assume an expanded strategic military role. Recent press reports have speculated
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that this new role will include covert actions similar to the CIA's. If this is so, this change in roles and missions for SOF should be approached with great caution and informed analysis.
LEGAL RAMIFICATIONS OF INTEGRATED CIA-SOF WARFIGHTING
There are a number of profound legal and operational issues associated with integrating CIA and SOF warfighting operations, and then managing that integrated relationship on the battlefield. This remains so whether the operation is CIA-led, with SOF seconded to the Agency, or vice versa, with SOF in the lead and CIA seconded. These issues are categorized in the following discussion under the general subheadings of Deniability, Lawful Action, Geneva Conventions, and Command and Control. As these issues are discussed below, it is important to keep in mind that in integrated CIA-SOF warfighting, SOF are still conducting military operations. The CIA paramilitary operatives are usually also performing military operations. Further, although the CIA paramilitary operatives maintain their covert cover, SOF hide only the mission and not their U.S. identity, although they have every right to reduce their profile through lawful means. A collateral effect during integrated operations is that SOF often become the CIA paramilitaries' operational cover.
DENIABILITY
While some covert CIA operations receive extensive support from various military units and DOD agencies, in general the intent is for the CIA's covert operations -- because of their very purpose and nature -- to avoid overly close identification with the U.S. Government.91 Nevertheless, the more often we integrate CIA and SOF operations on the battlefield, the more we subject the covert action to an overly close identification with the U.S. Government, with resultant "deniability" problems. In contrast, stand-alone SOF operations demonstrate a public commitment of U.S. military forces to protect our national interests, though the specifics may remain secret or receive little scrutiny. Such secrecy, however, at times provides SOF the opportunity to operate closer to the edge of the law.92
"Paramilitary operations are the noisiest of all covert actions."93 Add to that noise the presence of U.S. military forces alongside CIA paramilitary operatives, and one runs the risk of making the covert action more visible to its enemies. As the size of the operation increases, secrecy becomes more problematic, particularly if military or paramilitary forces are involved. Forces mean people, and people talk.94 As the size of the operation increases, it also becomes more complicated, with the attendant possibility that something will go wrong. For example, the end of the covert Iran-Contra operation began when a "single American survived an airplane crash."95
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LAWFUL ACTION
Another issue associated with integrated CIA-SOF warfighting operations is the lawfulness of each agency's methods of operations. CIA covert paramilitary operations may be contrary to customary international law or the laws of the country in which the activity is taking place, whereas U.S. military forces routinely operate in the public domain in a legally based forum requiring them to follow international law, with all the attendant scrutiny and Mondaymorning second-guessing. When the CIA and SOF operate together on the battlefield, the legal distinctions regarding operating authorities and procedures, and accountability, can become blurred. While these blurred boundaries are of significant concern, they can be overcome through situational awareness and adherence to proper governing (legal) authorities. Given that some rogue countries and non-State entities such as Al Qaeda and other terrorist groups have threatened the United States and its allies and friends with death and destruction, the U.S. must be prepared to take whatever action it deems necessary in order to protect our vital interests.96 Nevertheless, the employment of the CIA and DOD in protecting such interests must be consistent with national law. Whereas U.S. military operations are more easily proven to be in compliance with both national and international law because they occur in the public domain, this is not the case with CIA covert operations.97 Covert actions do not imply that U.S. law is superior to that of another country's, or that of international law, but that, instead, there are overriding national interests (vital interests) that must be protected outside the framework of international law and regular diplomatic relations.98
While there is a statutory requirement for CIA covert actions to comply with U.S. national law,99 there is no parallel statutory requirement for such actions to comply with international law. According to Ronald Kessler in Inside the CIA - Revealing the Secrets of the World's Most Powerful Spy Agency, it is the job of the Directorate of Operations (the CIA Directorate that undertakes covert action) to "break the laws of other countries."100 Stansfield Turner, CIA Director during the Carter Administration, stated in 1996, when comparing the CIA to the FBI, a law enforcement agency, that "The FBI agent's first reaction when given a job is, `How do I do this within the law?'," whereas the CIA agent's first reaction when given a mission is, "How do I do this regardless of the law of the country in which I am operating?"101 When William Webster became Director of the CIA after the Iran-Contra affair, however, he reemphasized the need to ensure CIA activities complied at a minimum with U.S. national law, if not international law. One of his policy imperatives was to make sure that every proposal from the White House and National Security Council not only made sense, but also complied with established U.S. law and precedent. He did this by testing every covert action proposal "against a set of unvarying
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questions: Does it fall within U.S. law? What would happen if it became public? Will the public understand it? Finally, will it work?"102
The DOD, on the other hand, is legally bound to execute its military operations in accordance not only with national law but also the international treaties governing the laws of armed conflict to which the U.S. is a signatory. Further, U.S. government policy dictates that U.S. military forces must "comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations."103 This policy edict is important for two reasons: First, the laws of war generally apply only to international armed conflicts between nation-states (and organized resistance movements under certain circumstances);104 second, the laws of war usually do not govern the conduct of military personnel against non-State actors in law enforcement operations.105 Thus, even though the U.S.-led war against terrorism is not an international armed conflict between nation-states, U.S. military forces must adhere to the international laws of war as codified in the various Geneva and Hague Conventions.
The CIA, however, is under no similar requirement regarding international law. This provides the U.S. with tremendous flexibility when it implements foreign policy. Because of the additional legal constraints imposed on the DOD, however, we must be careful to maintain a well-delineated separation between the CIA and DOD when they integrate their battlefield operations.
Accountability and control of CIA paramilitary covert actions on the battlefield are just as vital as they are for SOF operations if all such activities are to remain legitimate instruments of U.S. foreign policy. Accountability and control demonstrate that regardless of the mixture of CIA-SOF forces on the battlefield, their integrated operations are compatible with our democratic form of government because they are conducted with accountability and adherence to the law.106 For CIA covert activities to remain a viable option in furtherance of our national security, they must also have the support of the American people in overarching concept, if not the details. In this regard, the CIA is ultimately accountable to the American people -- whether directly, or through the Congress.107
This accountability and control are assured because, as discussed previously, the U.S. Code mandates that covert actions not be contrary to the U.S. Constitution or our Nation's laws.108 This also means that CIA operatives remain subject to international norms, human rights laws, and war crimes prosecutions, should they get themselves into that situation.109 This accountability is further ensured in that, as noted earlier, CIA covert actions must be authorized
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by the President, and the Agency must report to the House and Senate Intelligence committees for accountability and oversight purposes.110
GENEVA CONVENTIONS
During the U.S. Civil War, the Lincoln Administration commissioned Francis Lieber, a professor at Columbia College, to draft a code of the laws of war, which became the basis of The Hague and Geneva Conventions, to which the United States is a signatory.111 In 1863 Mr. Lieber advised President Lincoln and the Union Army that guerrillas, spies, and saboteurs could be summarily shot.112
Because CIA personnel operate without uniforms or identification as U.S. Government officers -- even though their arsenal includes airplanes, helicopters, and unmanned aerial Predators armed with Hellfire missiles, all typically thought of as military equipment -- they are not normally afforded the protections of the Geneva Conventions, whereas regular military forces are. In a combat operation where CIA and SOF forces are tightly integrated, the result could be that, if captured, the SOF soldiers are afforded Geneva Convention protections while the CIA operatives are not; further, CIA operatives might even be considered by the enemy to be unlawful combatants. Worse, the intermingling of CIA and SOF forces/operations could result in our enemy, unable to distinguish between the two groups, categorizing all captives as unlawful combatants.
While this lack of lawful combatant status is a condition that CIA paramilitary operatives work under daily, such is not the case for U.S. military personnel. Further, from a practical standpoint, should such a dilemma arise, would U.S. officials be willing to stand up and say, "the SOF captives are prisoners of war entitled to Geneva Convention protections, but the CIA operatives you are holding captive are not"? Are U.S. officials equipped with such moral courage? How would the American public react to such a statement, even if they knew the officials spoke the truth about the status of the CIA captives? Additionally, how would we explain the presence of CIA operatives with military forces but, more importantly, if we decide to officially acknowledge their presence on the battlefield, how would we categorize their status: lawful combatants (even if they are not wearing uniforms or distinctive insignia)? Noncombatants? Entitled to Geneva Conventions protections? There may be no good answers to these questions when we must resort to protecting our national interests through CIA paramilitary operations.
In some conflicts, such as the current war against terrorism, the issue of whether Geneva Convention status applies to SOF but not to CIA operatives may be irrelevant in law, though not
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irrelevant in diplomatic relations and on the political stage. As noted earlier, the laws of war generally apply only to international armed conflicts between nation-states (and organized resistance movements under certain circumstances).113 This means that the Geneva Conventions apply normally when nations fight. So, if members of an integrated CIA-SOF team are captured by a State actor (e.g., a member of the Armed Forces of a hostile country) during an international armed conflict, the CIA operatives normally would not be entitled to prisoner of war/Geneva Conventions status, whereas the military team members would, so long as they do not meet one of the exceptions, such as acting as spies or saboteurs in hostile territory. If that same CIA-SOF team is captured by a non-State actor, such as a terrorist group, the military members are technically not prisoners of war but are instead crime victims - hostages, in fact, subject to immediate release under Geneva Convention III.114 In such a case, the U.S. could legally demand that all of the captives, both CIA operatives and SOF, be immediately released. The U.S. could also argue on the stage of world opinion that all captives -- whether CIA or SOF -- should be treated by their non-State captors in accordance with the Geneva Conventions as a matter of policy, just as the U.S. does even when a conflict does not rise to the level of an international armed conflict. That argument is likely to fail, however, given the Bush Administration's decision to classify all Taliban and Al Qaeda fighters as unlawful combatants not entitled to prisoner of war status, although the Administration's policy is to treat them in a manner consistent with the principles of the Geneva Conventions.
COMMAND AND CONTROL
As a consequence of the Goldwater-Nichols Department of Defense Reorganization Act of 1986,115 Unified Combatant Commanders116 are charged with overseeing all military operations in their regional areas of responsibility, whether conducted by conventional military forces or SOF.117 Title 10, U.S. Code, Section 162(a)(4) states with more specificity that, "except as otherwise directed by the Secretary of Defense, all forces operating within the geographic areaassigned to a unified combatant command shall be assigned to, and under the command of, the commander of that command."118 Further, a combatant commander is responsible to the President and to the Secretary of Defense for the performance of missions assigned to that command.119 To implement this authority in military regulations, DOD Directive 5100.1, Functions of the Department of Defense and Its Major Components, assigns the combatant commanders with the command function to employ forces within that combatant command as he considers necessary to carry out missions assigned to the command.120 Of additional note is the fact that commanders of commands and forces assigned to a combatant command are
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under the authority, direction, and control of, and are responsible to, the combatant commander on all matters for which the combatant commander has been assigned authority.121 Stated more succinctly, the combatant commander has the responsibility for missions in his geographical area of command, and commands all military forces assigned to his area of responsibility. The combatant commander, however, has no specific statutory authority over other U.S. Government personnel in his area of operations, such as CIA paramilitary operatives. Accordingly, when CIA paramilitary operatives are integrated with SOF in a warfighting operation in a combatant commander's area of operations, the combatant commander has no authority over those CIA paramilitary operatives -- whose very presence in that integrated mix is in furtherance of a military mission -- unless the President has given him such authority. This lack of authority over all participants in the combatant commander's military mission can potentially but not necessarily handicap the combatant commander's statutory responsibility to the President and Secretary of Defense to accomplish his assigned missions. Accordingly, this potential problem must be addressed up front in the planning stages of every military operation in which integrated CIA-SOF operations may be employed. One way to resolve this potential problem would be to place CIA paramilitary assets directly under the authority and control of the regional combatant commanders. One journalist, Nathan Hodge of Defense Week, has opined that in wartime the CIA Director is "supposed to put all CIA assets within a given command region . . . under the operational control of the regional commander in chief" because the CIA is mainly an intelligence gathering agency, with military operations not one of its core, or traditional competencies.122 Hodge reinforces his opinion on this matter with his assertion that when the CIA receives information of value to U.S. commanders, it should turn such information over to the "professional" [U.S. military] warfighters.123 Hodge also asserts that even though officers from the CIA's predecessor agency, the Office of Strategic Services (OSS), worked under military commanders in World War II, the CIA in Afghanistan today is conducting its own campaign independent of U.S. Central Command. Hodge proposes that this is consistent with the CIA's pattern of "resisting subordination to military command," and he cites as examples the CIA's covert paramilitary actions in Honduras, Nicaragua, and El Salvador during the 1980s, where the CIA completely bypassed the Combatant Commander of U.S. Southern Command.124 Hodge fails to note, however, that all such CIA operations are undertaken at the order of the President, the Commander-in-Chief.
Another opinion in a vein similar to that of Hodge's is that of Michael Vickers, a former Army Green Beret and CIA official and now the Director of Strategic Studies at the Center for
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Strategic and Budgetary Assessments. According to a press report quoting Mr. Vickers, all of the CIA operatives in Afghanistan, including the operators of the Predator drones, are supposed to report to U.S. Central Command, but they also report to the CIA's Near-East Division, which is responsible for Afghanistan and Pakistan.125 However, Vickers notes that not all CIA paramilitary operatives have diligently consulted with, much less reported to, their military commanders, leading to some friction.126
In an article written before and independent of Hodge's, Douglas Waller, writing for Time magazine, made some additional observations. According to Waller, after Vietnam and the scandals of the 1970s, the CIA practically disbanded its paramilitary force, and when they subsequently needed paramilitary experts for their own covert actions against the Soviets in Afghanistan or to train contra rebels in Nicaragua, the Agency "borrowed" Army Green Berets or Navy SEALs, or hired retired SOF on a contract basis. Waller also noted that, in the past two years, CIA Director George Tenet has expanded the CIA's paramilitary force to the point where, according to one intelligence source cited by Waller, "the CIA is practically creating its own army, navy and air force."127
Another way to resolve this potential problem (i.e., the combatant commander's lack of direct authority and control over CIA paramilitary operatives in his area of responsibility) is for the CIA paramilitary operatives to maintain their separate (CIA) line of authority but be required to coordinate and consult directly with the combatant commander when they will be part of an integrated CIA-SOF warfighting operation. This option is more practical and realistic in a large scale military operation such as the global war on terrorism. For example, it is working successfully in Afghanistan today, although on an ad hoc rather than a formalized (required coordination and consultation) basis. In his book Bush at War, Bob Woodward describes how "Hank," the CIA's counterterrorism special operations chief met with General Tommy Franks, commander of U.S. Central Command, and made it clear that the CIA paramilitary teams in Afghanistan would be "working for Franks," somewhat contrary to recent practice, as "partners" with the military.128 This option will not only help to reduce the potential problem discussed above, but will preserve the combatant commander's operational flexibility to capitalize on the strengths that each agency (CIA and DOD/SOF) brings to the battlefield by applying the force most advantageous to successful mission accomplishment.
In further support of this option, CIA operatives are reportedly working "hand in glove" with SOF and have provided a "crucial eyes-on-the-ground capability," while still reporting through CIA operational channels.129 CIA paramilitary operatives are small in number, flexible, and generally freer from bureaucratic hierarchies than their SOF counterparts, who must usually
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jump through 18 food chains, 20 levels of paperwork and 22 hoops before they can take action.130 CIA operatives are able to use cash and other favors, such as supplying modern combat gear, to buy loyalty and information from tribal warlords in Afghanistan, whereas military forces do not possess such legal authorities.131 Another advantage to using CIA paramilitary operatives is that their ability to pinpoint the enemy is in many cases more humane than a fullscale military assault because the result will generally be fewer civilian casualties.132 In a war against terrorists, where the enemy does not wear uniforms and intermingles with the local populace, CIA paramilitary operatives are better able to distinguish the "good guys from the bad guys" and thus identify the right targets.133
Nevertheless, close cooperation and intermingling between the CIA and SOF is fraught with danger given their respective cultures, operational modes, sources of information, and oversight structures.134 For example, the CIA did not always obtain landing rights from neighboring countries before it moved its teams into Afghanistan, and it was free to ignore the traditional military requirement when going into combat to be backed up with an extraction plan and search-and-rescue teams. If the CIA teams got into any trouble, they were on their own.135 Integrated CIA and SOF warfighting operations, accordingly, invite significant legal and operational issues associated with deniability, legality, Geneva Conventions status, andcommand and control. These issues can be minimized or even overcome, however, if this integrated relationship is managed in a coordinated manner that best preserves the combatant commander's flexibility in battle by capitalizing on the strengths and capabilities that each agency brings to the fight.
ADDITIONAL ISSUES ASSOCIATED WITH INTEGRATED CIA-SOF WARFIGHTING.
Three additional concerns associated with integrated CIA-SOF warfighting merit comment.
CAPABILITIES-SHIFTING
We must be careful to capitalize on what the CIA brings to the fight, not give them a military mission to execute in DOD's stead. While the CIA's covert paramilitary capability is a valuable and attractive means of operation compared to the usual "noise" of military combat operations, both agencies must be careful to ensure that their integrated operations do not negatively affect the positive capabilities of each. For example, is CIA-SOF warfighting integration true capabilities-shifting, i.e., a reasonable means of "outsourcing" by the National Security Council in order to use the CIA as supplemental warfighters alongside SOF? Or, is such integration merely burden-shifting from the DOD to the CIA based on the CIA's high-speed
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low-drag flexibility and reduced span of complexity? If it is burden-shifting by the DOD, how would this affect DOD writ large as the various military departments transform themselves to deal more effectively and efficiently with future threats? These policy implications suggest strongly that we must capitalize on each agency's strength and capabilities in combat, not cannibalize each other's missions or shift unwanted burdens.
CONGRESSIONAL OVERSIGHT
It is difficult for Congress to provide effective oversight of integrated CIA and SOF operations, as different sets of committees with disparate agendas and jurisdictions attend this issue. The ways by which the U.S. Congress funds and oversees both the CIA and DOD may not be optimized to support their evolving and overlapping mission in the war against terrorism.136 Further, it is already difficult to provide effective and seamless oversight of intelligence activities and military operations abroad;137 to attempt to do so over shared missions imposes an even greater challenge. For covert operations to remain a legitimate national tool, however, this very accountability and control are vital. The fact that Congressional oversight will be more difficult does not militate against the viability of integrated CIA-SOF combat operations as a legitimate tool of U.S. foreign policy.
TARGETING
Both SOF and CIA personnel on the ground in Afghanistan have provided "real-time and near-real-time" targeting data - using either laser designators or radios and laptops to call in global positioning system coordinates to U.S. aircraft flying over the battlefield.138 Yet there were difficulties in a few of the new targeting tactics, techniques, and procedures (TTPs) that had to be hurriedly fielded between the CIA and DOD, and even though the targeting tactics, techniques, and procedures were improved on the battlefield as the war progressed, "as many as a dozen opportunities to strike high-value but time-critical targets" were lost in the first weeks of the war in Afghanistan.139 Some of these problems were due to interoperability issues between the CIA and DOD, while others were due to "the length of the decision loop - the time required from when a sensor detects a target to when it can be identified and approved by a human operator."140 Nevertheless, when compared to each other, the CIA's targeting process isusually quicker, more fluid, and encompasses fewer decision-makers in its "trigger-pulling chain of command" than DOD's141 According to one anonymous senior defense official in November2002, today's military is still not designed to move with speed or agility, despite its success in Afghanistan.142
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Target engagement in integrated CIA-SOF operations involves another major coordination concern, namely, the increased difficulties in preventing friendly fire incidents on battlefields where other government agencies are operating, like Afghanistan. For example, during Operation Anaconda in Afghanistan in March 2002, CIA assets operating on the ground wanted large No Fire Areas over each of their positions, "many of which covered key terrain of interest" to the joint and coalition unconventional warfare and special reconnaissance teams.143 The use of large No Fire Areas would have denied these unconventional warfare and special reconnaissance teams the flexibility they needed to engage targets in those areas. To address this problem, Coalition Joint Task Force - Mountain (CJTF-Mountain) employed Restricted Fire Areas instead. Restricted Fire Areas enabled the approving ground tactical commander to engage targets he deemed necessary, while facilitating unconventional warfare and special reconnaissance team movement and allowing the commander to set the conditions for future engagements,144 and continuing to provide friendly fire protection for all concerned. Keeping up to date with all of the CIA assets and non-government agency personnel on the ground and their changing locations was often a significant challenge, however. Although CJTF-Mountain executed an incredibly effective and successful targeting plan while meeting the legitimate concerns of the CIA and non-government agencies, this issue is critical. To prevent fratricide on a battlefield such as that confronted in Afghanistan, where there is no clear front or rear, all participants must work together before the fight to establish interoperable communications in targeting cells and intelligence fusion centers, as well as same-meaning terminology - with all forces clear on the operational terminology and the meaning of those terms.145
RECOMMENDATION
In order to win the war on terrorism decisively and with dispatch, the President should continue this new policy of employing CIA paramilitary operatives in a warfighting role alongside SOF in combat. To better manage this new policy, however, the CIA and DOD should jointly develop clear, well-understood procedures that ensure close and effective coordination and that provide for the seamless sharing of battlefield information.
Interagency coordination and cohesion of strategy are the vital links in this new template for warfare.146 To implement this new policy and ensure a seamless sharing of battlefield information and a consolidated unity of effort on the battlefield, the Joint Interagency Coordinating Group at each combatant command should develop or expand as appropriate the following:
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Joint Interagency Coordinating Groups. These groups, headquartered at each unified combatant command, should be composed of liaison officers from any and all organizations that can potentially be helpful to the combatant commander.
Interagency Coordination Annex (Annex V).147 An Annex V should be included in every combatant command contingency plan to ensure the integration of all pertinent instruments of national power into the combatant commander's deliberate planning process, and to articulate the combatant commander's criteria for entry and exit conditions for other U.S. Government agencies during an operation. Annex V should also serve as the combatant commander's vehicle to identify major missions and tasks for interagency coordination; to identify interagency issues arising with each phase of military operations; to develop follow-on interagency politicalmilitary planning; and to request other relevant interagency activities.148 New Procedures to Govern Integrated Operations. These procedures should address doctrine, training, policies, and coordination, to ensure their synchronization on the battlefield. Herein lies a thorny thicket of command and control issues, which should be resolved in a manner that provides the combatant commander with more sharply focused unity of command, and the requisite authority -- however defined and accomplished -- over CIA operatives during combat operations to accomplish his assigned tasks. Unity of command necessarily requires clearly defined authorities, roles, and relationships.149 If CIA operatives are going to be involved in warfighting missions on the battlefield, then they should be responsible to the combatant commander in some organized and formal shape or form.
Laws of War. A working group should be established to formally develop procedures to protect SOF forces from inadvertently violating the Laws of War when they intermingle their operations with CIA operations. This working group should also study and develop legal bases to protect CIA paramilitary operatives and associated SOF from allegations that they are unlawful combatants (this is an issue only for periods of legally recognized armed conflict). Training Plan. An interagency training plan should be developed to delineate and incorporate coordination measures.
Training Exercise. An interagency training exercise should take place to validate the training plan and coordination measures.
Memorandum of Understanding. This memorandum of understanding should be between the CIA and DOD (and any other agency as deemed necessary) and should outline the authorities and responsibilities of both agencies when they operate together in combat in order to ensure unity of effort.
25
Although there is no overarching interagency doctrine that specifies or even dictates the procedures and relationships governing all organizations involved in interagency operations, Joint Publication 3-08, Interagency Coordination During Joint Operations, and Presidential Decision Directive-56, Managing Complex Contingency Operations, provide useful general guidance and procedures for planning and managing complex operations.150
CONCLUSION
Changed international realities require the U.S. to adapt its response to transnational threats by employing CIA paramilitary operatives in a warfighting role alongside SOF. According to former Senate Intelligence Committee Chairman Bob Graham, Democrat - Florida, "The type of combat we're likely to be in from now on is not World War II, with mass tank attacks, but rather this type of small-unit operation where good intelligence, operational intelligence is the key to your success. . . . We've asked the question [about coordination] consistently . . . and we've gotten . . . increasingly positive statements about the close and effective relationship between intelligence and war fighters."151 This integration blurs organizational boundaries, however, and for policy reasons, legal protections, and operational effectiveness, we must develop new procedures to deal with these blurred boundaries. Further, there is a concomitant need for both groups to maintain a well-delineated separation between themselves. Without this separation, we risk losing the political and military value of covert operations, and invite the perception that we are attempting to avoid customary international law and the laws of war by disguising SOF operations as CIA operations or, more likely, vice versa. Because America's political-military activities are increasingly colored by self-imposed legal constraints as well as the weight of world opinion, choosing between CIA covert action, military action, or a combination of the two, presents important and difficult challenges to America's senior policy-makers. Competing interests must be weighed and balanced, and compromises will surely have to be made.152 In that the political object to be had by war will affect not only the level of effort to be made but also the conduct of the operations, it is also appropriate to quote Carl von Clausewitz, who rejected the idea that there is only one "best path to victory, finding instead that `many roads lead to success.'"153
Word Count = 10,740
26
27
ENDNOTES
1 In October 1996, Uzbek and Tajik factions in the geographical northern third of Afghanistan formed the "Northern Alliance" to combat the Taliban. Since then the Northern Alliance became known as the umbrella grouping of anti-Taliban forces in Afghanistan. See "Country Profile: Afghanistan," World News Digest, 29 August 2002; available from http://www.2facts.com/ancillaries/index/c00002.asp.html; Internet; accessed 29 August 2002. See also "Afghanistan - Countrywatch;" available from http://www.countrywatch.com/cw_topic.asp?vCOUNTRY=1&SECTION=SUB&TOPIC=POPCO&T.html; Internet; accessed 29 August 2002.
2 Osama bin Laden is an Islamic fundamentalist believed by intelligence officials to be the leader of Al Qaeda, an international terrorist network. See Endnote 6, supra. Bin Laden was born in Saudi Arabia in 1957 to a Yemeni-born Saudi billionaire. Osama bin Laden left Saudi Arabia in 1991 after aiding groups opposed to the reigning Fahd family, taking his $250 million inheritance with him. Bin Laden's sworn hostility to the United States purportedly stems from Saudi Arabia's 1990 decision to permit the U.S. to station troops on Saudi soil after Iraq invaded Kuwait. Bin Laden has issued fatwahs (religious rulings) encouraging Muslims to kill Americans. See "Facts on Osama bin Laden," World News Digest, 29 August 2002; available from http://www.2facts.com/ancillaries/index/b00222.asp.html; Internet; accessed 29 August 2002.
3 Al Qaeda (Arabic for "the base") is an international terrorist network formed around 1987 by Osama bin Laden and militants from the Egyptian Islamic Jihad as a base for their worldwide crusade. See "Facts on Osama bin Laden," World News Digest, 29 August 2002; available from http://www.2facts.com/ancillaries/index/b00222.asp.html; Internet; accessed 29 August 2002. Al Qaeda "terrorists practice a fringe form of Islamic extremism that has been rejected by Muslim scholars and the vast majority of Muslim clerics . . . The terrorists' directive commands them to kill Christians and Jews, to kill all Americans and make no distinctions among military and civilians, including women and children." See "World Trade Center and Pentagon Terrorist Attacks: Transcript of Bush's Speech to Congress," World News Digest, 27 September 2002; available from http://www.2facts.com/stories/index/2001227310.asp.html; Internet; accessed 29 August 2002.
4 Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 40. See also Bob Drogin, "U.S. Had Plan for Covert Afghan Options Before 9/11," Los Angeles Times, sec. A, p. 14 (1074 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002. 5 United Airlines Flight # 93 crashed near Shanksville, Pennsylvania when passengers fought back against four terrorists who had hijacked the airliner. Passengers learned from cellular telephone calls with family members and friends on the ground that three other airlinershad been hijacked minutes earlier and flown into the Twin Towers and the Pentagon. Because the terrorists had turned Flight # 93 back east, away from its intended West Coast destination, passengers believed the hijackers were trying to fly the plane back to a target in the D.C. area when they fought back. Several months later, U.S. officials said that captured senior Al Qaeda leader Abu Zubaydah had told them that Flight 93 was intended to hit the White House on 11 September 2001. See "White House Target of Flight 93, Officials Say," CNN.COM, 23 May 2002; available from http://www.cnn.com/2002/US/05/23/flight.93/index.html; Internet; accessed 17 March 2003.
28
6 An "act of terrorism" means an activity that involves a violent act or an act dangerous to human life that is a violation of the criminal laws of the United States or of any State . . . and appears to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by assassination or kidnapping. Title 18, U.S. Code, Section 3077, Definitions (Section 3077 is a part of Chapter 204, Rewards for Information Concerning Terrorist Acts and Espionage). DOD Directive 2000.12, DOD Antiterrorism/Force Protection (ATFP) Program, 13 April 1999, defines "terrorism" as the "calculated use of violence or threat of violence to inculcate fear; intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological." Department of Defense, DOD Antiterrorism/Force Protection (ATFP) Program, Department of Defense Directive 2000.12 (Washington, D.C.: U.S. Department of Defense, 1 April 1999).
7 Amy Westfeldt, "9/11 Cost for NYC Tops $33 Billion," The Patriot-News, 13 November 2002, sec. A, p. 8. The total worldwide economic loss impact has been estimated to top $600 billion, a "strategically significant" event according to remarks made by a speaker participating in the Commandant's Lecture Series at the Army War College in 2002.
8 "The deliberate and deadly attacks, which were carried out yesterday against our country, were more than acts of terror. They were acts of war." See "Hijacked Jets Destroy World Trade Center, Hit Pentagon: Text of President Bush's September 12 Statement," World News Digest, 13 September 2001; available from http://www.2facts.com/stories/index/2001226370.asp.html; Internet; accessed 29 August 2002. See also United States Congress, Report on Actions Taken to Respond to the Threat of Terrorism Communication from the President of the United States Transmitting a Report, Consistent with the War Powers Resolution and Senate Joint Resolution 23, to Help Ensure that the Congress is Kept Fully Informed on Actions Taken to Respond to the Threat of Terrorism, 107th Cong., 1st sess., 25 September 2001. This report became House Document 107-127. See also United States Congress, Senate Joint Resolution 23: Authorization for Use of United States Armed Forces, 107th Cong., 1st sess., 14 September 2001. This joint resolution became Public Law on September 20, 2001 (see P.L. 107-40). 9 United States Congress, Senate Joint Resolution 23: Authorization for Use of United States Armed Forces, 107th Cong., 1st sess., 14 September 2002. This joint resolution became Public Law on September 20, 2002 (see P.L. 107-40).
10 Bob Woodward, "Secret CIA Units Playing a Central Combat Role," The Washington Post, 18 November 2001, sec. A, p. 1 [database on-line]; available from ProQuest; accessed 29 August 2002. See also Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, sec. 413b (2002).
11 Jim Pavitt, Deputy Director for Operations, Central Intelligence Agency, Text of Address to Duke University Law School Conference (as delivered), 11 April 2002; available from http://www.cia.gov/cia/public_affairs/speeches/archives/2002/pavitt_04262002.html; Internet; accessed 17 March 2003. See also Maxim Kniazkov, "CIA Creates Super Secret Hit Team to Target Terrorists Abroad," Agence France Presse, 4 June 2002, p. 1 (547 words) [database online]; available from Lexis-Nexis; accessed 29 August 2002.
12 Ibid., 101, 134-135.
29
13 United States Congress, Report on Actions Taken to Respond to the Threat of Terrorism Communication from the President of the United States Transmitting a Report, Consistent with the War Powers Resolution and Senate Joint Resolution 23, to Help Ensure that the Congress is Kept Fully Informed on Actions Taken to Respond to the Threat of Terrorism, 107th Cong., 1st sess., 25 September 2001. This report became House Document 107-127. See also Alexander Hamilton, "Federalist No. 74: The Command of the Military and Naval Forces, and the Pardoning Power of the Executive," Federalist Papers, from the New York Packet, 25 March 1788 ("The President of the United States is to be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.").
14 On September 27, 1996, members of the Islamic Taliban (Religious Students Movement), a Moslem fundamentalist group composed largely of former theology students, displaced the ruling members of the Afghan Government and declared themselves -- the Taliban -- the legitimate government of Afghanistan. The Taliban were never recognized by the United Nations. See "CIA -- The World Factbook -- Afghanistan;" available from http://www.cia.gov.cia/publications/factbook/geos/af.html; Internet; accessed 29 August 2002.
See also "Afghanistan - Countrywatch;" available from http://www.countrywatch.com/cw_topic.asp?vCOUNTRY=1&SECTION=SUB&TOPIC=POPCO& T.html; Internet; accessed 29 August 2002.
15 "Bush's Address Announcing Military Strikes Against Afghanistan: Text," World News Digest, 11 October 2001; available from http://www.2facts.com/stories/index/2001228130.asp.html; Internet; accessed 29 August 2002.
16 The CQ Researcher, Intelligence Reforms, Washington, D.C.: CQ Press, 25 January 2002, vol. 12, no. 3. See also Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 139.
17 See Endnote 1, supra.
18 Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 101, 134, 141. See also Associated Press, "CIA Plays High-Profile Military Role in Afghanistan with US-CIAShadow Army," Associated Press Worldstream, 20 May 2002, p.1 (379 words) [database online]; available from Lexis-Nexis; accessed 29 August 2002; and Evan Thomas and Colin Soloway, "A Street Fight," Newsweek, 29 April 2002, sec. International, p. 30 (2596 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002. See also Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 193.
19 Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 101, 134.
20 "World Trade Center and Pentagon Terrorist Attacks: Transcript of Bush's Speech to
Congress," World News Digest, 27 September 2002; available from http://www.2facts.com/stories/index/2001227310.asp.html; Internet; accessed 29 August 2002.
21 Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 90.
22 Richard B. Myers, National Military Strategy of the United States of America (Pre- Decisional Draft) (Washington, D.C.: The Pentagon, 19 September 2002).
30
23 See generally Pat M. Holt, Secret Intelligence and Public Policy - A Dilemma of Democracy (Washington, D.C.: Congressional Quarterly Inc., 1995), 149-156.
24 Bob Woodward, "CIA Told to Do 'Whatever Necessary' to Kill Bin Laden," The Washington Post, 21 October 2001; available from http://www.washingtonpost.com/ac2/wpdyn/ A27452-2001Oct20; Internet; accessed 26 September 2002. See also Associated Press, "CIA Plays High-Profile Military Role in Afghanistan with US-CIA-Shadow Army," AssociatedPress Worldstream, 20 May 2002, p.1 (379 words) [database on-line]; available from Lexis- Nexis; accessed 29 August 2002. See also generally Ronald Kessler, Inside the CIA - Revealing the Secrets of the World's Most Powerful Spy Agency (New York: Pocket Books, 1992); and Charles D. Ameringer, U.S. Foreign Intelligence - The Secret Side of American History (Lexington, Massachusetts: Lexington Books, 1990).
25 Bob Woodward, "CIA Told to Do 'Whatever Necessary' to Kill Bin Laden," The Washington Post, 21 October 2001; available from http://www.washingtonpost.com/ac2/wpdyn/ A27452-2001Oct20; Internet; accessed 26 September 2002. See also Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 166.
26 Ibid.
27 Dana Priest, "'Team 555' Shaped a New Way of War; Special Forces and Smart Bombs Turned Tide and Routed Taliban," The Washington Post - Final Edition, 3 April 2002, sec. A, p. 1 (4014 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
28 Ibid. "Phil [from the CIA's analytical branch] gave a briefing on the mission: The next day, the team [SOF Team 555] would join up with commanders allied with Massoud's successor, Gen. Mohammed Fahim, the Northern Alliance's defense minister. . . . First, they [Team 555] were to help U.S. warplanes destroy the Taliban front line around that airfield. Then, they were to search for and destroy Taliban and Al Qaeda targets in the 35-mile stretch south to Kabul. Finally, they were to help the alliance seize Kabul . . . When Phil introduced [the team members] to Bismullah Khan at their next safe house . . . he said, `Here's the Special Forces team I've been promising you.'" See also Jonathan Weisman, "CIA, Pentagon Feuding Complicates War Effort," USA Today, 17 June 2002, sec. A, p. 11 (1534 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
29 Bryan Bender, Kim Burger, and Andrew Koch, "Afghanistan: First Lessons," Jane's Special Reports, 14 December 2001; available from http://www.janes.com.html; Internet; accessed 12 September 2002.
30 Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 166.
31 Ibid., 202.
32 Thom Shanker and James Risen, "Rumsfeld Weighs New Covert Acts by Military Units," The New York Times, Late Edition - Final, 12 August 2002, sec. A, p. 1 (1604 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
33 Ibid.
34 See Endnote 19, supra.
31
35 Jim Pavitt, Deputy Director for Operations, Central Intelligence Agency, Text of Address to Duke University Law School Conference (as delivered), 11 April 2002; available from http://www.cia.gov/cia/public_affairs/speeches/archives/2002/pavitt_04262002.html; Internet; accessed 17 March 2003. See also Bob Drogin, "U.S. Had Plan for Covert Afghan Options Before 9/11," Los Angeles Times, sec. A, p. 14 (1074 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
36 J. Daniel Moore, "CIA Support to Operation Enduring Freedom," Military Intelligence Professional Bulletin, vol. 28, iss. 3 (Jul-Sep 2002): 46 [database on-line]; available from ProQuest; accessed 29 August 2002.
37 Ron Kampeas, "CIA's Paramilitary Scores Successes," Associated Press Online, 20 May 2002, p. 1 (968 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002. See also Bryan Bender, Kim Burger, and Andrew Koch, "Afghanistan: First Lessons," Jane's Special Reports, 14 December 2001; available from http://www.janes.com.html; Internet; accessed 12 September 2002 ("U.S. Defense Secretary Donald Rumsfeld has denied any coordination problems, saying the CIA forces on the ground `are tucked in very tight with the U.S. military.'")
38 See Constitution of the United States, Article I, Section 8; and Article II, Section 2.
39 See generally Armed Forces, U.S. Code, Title 10 (2002).
40 Department of Defense, Functions of the Department of Defense and Its Major
Components, Department of Defense Directive 5100.1 (Washington, D.C.: U.S. Department of Defense, 1 August 2002), 4.
41 The mission to capture Arnold was aborted when Arnold's change in travel plans made his capture impossible. See "Intelligence Operations (Wartime Special Operations)," 2 October 2002; available from http://www.cia.gov/csi/books/warindep/intellopos.html; Internet; accessed 2 October 2002. Other examples of special operations in the colonial era include Major Robert Rogers, who led the New England Companies of Rangers in the French and Indian War; Francis Marion (aka the "Swamp Fox"), a guerilla leader during the American Revolutionary War; and Sergeant Ezra Lee, who used an oak submersible to attack a British frigate in New York Harbor in August 1776. See United States Special Operations Command, Special Operations in Peace and War, United States Special Operations Command Pub 1 (Washington, D.C.: U.S. Special Operations Command, 25 January 1996), 2-2.
42 Goldwater-Nichols Department of Defense Reorganization Act of 1986, Public Law 99-433, 99th U.S. Congress, October 1, 1986, codified at U.S. Code, Title 10, Subtitle A, Part 1, Chapter 5. With respect to Special Operations Forces in particular, see Unified Combatant Command for Special Operations Forces, U.S. Code, Title 50, section 167 (2002).
43 Rowan Scarborough, "Rumsfeld Gives `Blank Sheet' to Update Special Operations," The Washington Times, 21 November 2002, p. 15.
44 For a list of special operations activities, see Unified Combatant Command for Special Operations Forces, U.S. Code, Title 10, sec. 167(j) (2002). See also United States Special Operations Command, Special Operations in Peace and War, United States Special Operations
32
Command Pub 1 (Washington, D.C.: U.S. Special Operations Command, 25 January 1996), 3-2 - 3-6.
45 United States Special Operations Command, Special Operations in Peace and War, United States Special Operations Command Pub 1 (Washington, D.C.: U.S. Special Operations Command, 25 January 1996), 3-1.
46 Ibid, 1-1.
47 The term "unified combatant command" means a military command which has broad, continuing missions and which is composed of forces from two or more military departments." Combatant Commands: Establishment, U.S. Code, Title 10, sec. 161(c)(1) (2002).
48 Unified Combatant Command for Special Operations Forces, U.S. Code, Title 10, sec. 167(d) (2002).
49 John M. Shalikashvili, National Military Strategy of the United States of America (Washington, D.C.: The Pentagon, September 1997), 5.
50 Richard B. Myers, National Military Strategy of the United States of America (Pre-Decisional Draft) (Washington, D.C.: The Pentagon, 19 September 2002), 14.
51 National Security Act of 1947, Public Law 235, 61 Stat. 496, July 26, 1947, codified in various portions of Titles 10, 32, and 50 of the U.S. Code.
52 Ibid.
53 Harry Rositzke, The CIA's Secret Operations (New York: Reader's Digest Press, 1977), xviii. See also John Jay, "Federalist No. 64: The Powers of the Senate," Federalist Papers, from the New York Packet, 7 March 1788; and Article II, Section 2, Constitution of the United States, which provides the President with the power to make treaties, with the advice and consent of the Senate.
54 All duties and responsibilities of the CIA shall be related to the intelligence functions set out in paragraph 1.8 of Executive Order 12333; and as authorized by the National Security Act of 1947, as amended; the CIA Act of 1949, as amended; and other appropriate directives or other applicable law. See Executive Order 12333--United States Intelligence Activities, paragraph 1.8, 46 Federal Register 59941, 3 CFR, 1981 Comp., p. 200; also available from http://www.cia.gov/cia/information/eo12333.html; Internet; accessed 29 September 2002. See also George J. Tenet, The Authorities and Responsibilities of the Director of Central Intelligence as Head of the U.S. Intelligence Community, Director of Central Intelligence Directive 1/1(Washington, D.C.: Director of Central Intelligence, 19 November 1998), para's 7.a, 7.c.
55 Ibid.
56 Executive Order 12333--United States Intelligence Activities, paragraph 3.4(h), 46 Federal Register 59941, 3 CFR, 1981 Comp., p. 200; also available from http://www.cia.gov/cia/information/eo12333.html; Internet; accessed 29 September 2002.
57 Ibid.
33
58 Pat M. Holt, Secret Intelligence and Public Policy - A Dilemma of Democracy (Washington, D.C.: Congressional Quarterly Inc., 1995), 136.
59 Intelligence Authorization Act, Fiscal Year 1991, Statutes at Large 105, sec. 602, 443 (1991) [Public Law 102-88, 14 August 1991]; See also War and National Defense, National Security: Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, section 413b(e) (2002); and Pat M. Holt, Secret Intelligence and Public Policy - A Dilemma of Democracy, (Washington, D.C.: Congressional Quarterly Inc., 1995), 136.
60 War and National Defense, National Security: Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, section 413b(e) (2002).
61 Charles D. Ameringer, U.S. Foreign Intelligence - The Secret Side of American History (Lexington, Massachusetts: Lexington Books, 1990), 392.
62 Stansfield Turner, "Intelligence and Secrecy in an Open Society," The Center Magazine
XIX, no. 2 (March/April 1986): 4.
63 Ibid.
64 John M. Oseth, Regulating U.S. Intelligence Operations (Lexington: The University Press of Kentucky, 1985), 36. See also generally National Security Act of 1947. Get cite.
65 Ronald Kessler, Inside the CIA - Revealing the Secrets of the World's Most Powerful Spy Agency (New York: Pocket Books, 1992), 237.
66 John M. Oseth, Regulating U.S. Intelligence Operations (Lexington: The University Press of Kentucky, 1985), 136. See also Sec. 102(d)(5) (50 U.S.C. 403-3) of the National Security Act of 1947, as amended, at Public Law 235, 61 Stat. 496, July 26, 1947.
67 John M. Oseth, Regulating U.S. Intelligence Operations (Lexington: The University Press of Kentucky, 1985), 136.
68 Ibid, 36.
69 Harry Rositzke, The CIA's Secret Operations (New York: Reader's Digest Press, 1977), 155.
70 Ronald Kessler, Inside the CIA - Revealing the Secrets of the World's Most Powerful Spy
Agency (New York: Pocket Books, 1992), 237-238.
71 Ibid, 238.
72 Ibid.
73 Harry Rositzke, The CIA's Secret Operations (New York: Reader's Digest Press, 1977), xvi.
74 Ibid, 152.
34
75 War and National Defense, National Security: Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, section 413b(a) and (a)(1) (2002). See also Intelligence Authorization Act, Fiscal Year 1991, Public Law 102-88 [H.R. 1455]; 14 August 1991; title VI, sec. 503. See also footnote 9, supra.
76 War and National Defense, National Security: Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, section 413b(a)(3) (2002).
77 Ibid, 413b(a)(5). See also Pat M. Holt, Secret Intelligence and Public Policy - A Dilemma of Democracy (Washington, D.C.: Congressional Quarterly Inc., 1995), 158.
78 "Intelligence Operations (Covert Action)," 2 October 2002; available from http://www.cia.gov/csi/books/warindep/intellopos.html; Internet; accessed 2 October 2002.
79 J. Daniel Moore, "CIA Support to Operation Enduring Freedom," Military Intelligence Professional Bulletin, vol. 28, iss. 3 (Jul-Sep 2002): 46 [database on-line]; available from ProQuest; accessed 29 August 2002.
80 Ibid. See also Charles D. Ameringer, U.S. Foreign Intelligence - The Secret Side of American History (Lexington, Massachusetts: Lexington Books, 1990), 168.
81 Charles D. Ameringer, U.S. Foreign Intelligence - The Secret Side of American History (Lexington, Massachusetts: Lexington Books, 1990), 168.
82 Ibid.
83 Ibid.
84 Central Intelligence Agency, Center for the Study of Intelligence, Central Intelligence:
Origin and Evolution (Washington, D.C.: U.S. Government Printing Office, September 2001), 13.
85 Ibid.
86 Ibid.
87 Ibid, 14.
88 Bob Woodward, "CIA Told to Do 'Whatever Necessary' to Kill Bin Laden," The Washington Post, 21 October 2001; available from http://www.washingtonpost.com/ac2/wpdyn/A27452-2001Oct20; Internet; accessed 26 September 2002. See also Evan Thomas and Colin Soloway, "A Street Fight," Newsweek, 29 April 2002, sec. International, p. 30 (2596 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002; and Bob Woodward, "Secret CIA Units Playing a Central Combat Role," The Washington Post, 18 November 2001, sec. A, p. 1 [database on-line]; available from ProQuest; accessed 29 August 2002.
89 Alan E. Goodman, "Reforming U.S. Intelligence," Foreign Policy, no. 67 (Summer 1987): 131, 133. See also John C. Green, Secret Intelligence and Covert Action: Consensus in an Open Society, Strategy Research Project (Carlisle Barracks: U.S. Army War College, 19 March 1993), 29.
35
90 Harry Rositzke, "America's Secret Operations: A Perspective," Foreign Affairs 53, no. 2 (January 1975): 344-345, 348. See also John C. Green, Secret Intelligence and Covert Action: Consensus in an Open Society, Strategy Research Project (Carlisle Barracks: U.S. Army War College, 19 March 1993), 29.
91 Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-26.
92 The ideas for this sentence came from William M. Arkin, "Warfare; Dressed -- and Equipped -- to Kill," Los Angeles Times, 4 August 2002, p. M1 [database on-line]; available from ProQuest; accessed 29 August 2002.
93 Harry Rositzke, The CIA's Secret Operations (New York: Reader's Digest Press, 1977), 166.
94 Pat M. Holt, Secret Intelligence and Public Policy - A Dilemma of Democracy (Washington, D.C.: Congressional Quarterly Inc., 1995), 159.
95 Ibid. This begs an obvious political question: What happens if the operation fails, or is compromised? It depends on the nature of the operation, of course. For example, the U.S. might find itself in the position where it must abandon its operatives rather than admit U.S. complicity. Or, the President might face a crisis, such as the failed Desert One mission in April of 1980, that contributes in part to the loss of his office in the next election. This question, although meaningful, addresses an issue that is beyond the scope of this paper.
96 Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-26 - 27. See also generally The White House, National Security Strategy of the United States of America 10-12 (2002); available at http://www.whitehouse.gov/nsc/nssall.html.
97 By their very nature and purpose, CIA covert operations reflect an inability -- or perhaps an unwillingness -- to accept the constraints of acting openly within legal norms and, ipso facto, challenge the traditional U.S. values of openness and respect for the sovereignty of other nations. See "Special Ops; Exploring New Uses is Appropriate," Star Tribune (Minneapolis, MN), 19 August 2002, sec. A, p. 10 (432 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002. See also Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-27.
98 Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-26. However, the secrecy of such covert actions, as necessary as they are, and as well understood as that necessity is by other law-abiding nations, does deprive the U.S. of demonstrable evidence that all of our actions in protecting our vital interests are consistent with either national or international law
99 War and National Defense, National Security: Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, section 413b(a) and (a)(1) (2002).
36
100 Ronald Kessler, Inside the CIA - Revealing the Secrets of the World's Most Powerful Spy Agency (New York: Pocket Books, 1992), 3.
101 Quoted in Benjamin Wittes, "Blurring the Line Between Cops and Spies," Legal Times, 9 September 1996, p.20. See also Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-9; and Unified Combatant Command for Special Operations Forces, U.S. Code, Title 10, sec. 167 (2002); and Department of Defense, Functions of the Department of Defense and its Major Components, Department of Defense Directive 5100.1 (Washington, D.C.: U.S. Department of Defense, 1 August 2002) 4, 10-11.
102 Ronald Kessler, Inside the CIA - Revealing the Secrets of the World's Most Powerful Spy Agency (New York: Pocket Books, 1992), 188.
103 Department of Defense, Law of War Program, Department of Defense Directive 5100.77 (Washington, D.C.: U.S. Department of Defense, 9 December 1998), para. 5.3.1. 104 See Convention for the Amelioration of the Condition of Wounded and Sick in Armed Conflict in the Field, 12 August 1949, art. 2, 6 U.S.T. 3114, 3118, 75 U.N.T.S. 31, 33; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, art. 2, 6 U.S.T. 3217, 3220, 75 U.N.T.S. 85, 88; Convention Relative to the Treatment of Prisoners of War, 12 August 1949, art. 2, 6 U.S.T. 3316, 3318, 75 U.N.T.S. 135, 137 [Geneva Convention III]; Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, art. 2, 6 U.S.T. 3516, 3518, 75 U.N.T.S. 287, 289 [Geneva Convention IV].
105 Brigadier General Charles J. Dunlap, Jr., USAF, "International Law and Terrorism: Some
`Qs and As' for Operators," The Army Lawyer, Department of the Army Pamphlet 27-50-357
(October/November 2002): 24.
106 Charles D. Ameringer, U.S. Foreign Intelligence - The Secret Side of American History (Lexington, Massachusetts: Lexington Books, 1990), 392.
107 John C. Green, Secret Intelligence and Covert Action: Consensus in an Open Society, Strategy Research Project (Carlisle Barracks: U.S. Army War College, 19 March 1993), 14. See also Robert M. Gates, "CIA and Openness," Vital Speeches of the Day LVIII, no. 14 (1 May 1992): 430-431.
108 War and National Defense, National Security: Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, section 413b(a)(5) (2002).
109 Ron Kampeas, "CIA's Paramilitary Scores Successes," Associated Press Online, 20 May 2002, p. 1 (968 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002. See also War and National Defense, National Security: Presidential Approval and Reporting of Covert Actions, U.S. Code, Title 50, section 413b(a)(5) (2002).
110 War and National Defense, National Security, Accountability for Intelligence Activities, General Congressional Oversight Provisions, U.S. Code, Title 50, sec. 413(a) (2002). See also
37
Ron Kampeas, "CIA's Paramilitary Scores Successes," Associated Press Online, 20 May 2002, p. 1 (968 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002. 111 Frank J. Williams, Chief Justice, Supreme Court of Rhode Island, "Letter to the Editor: Abraham Lincoln and Al Qaeda," American Heritage, October 2002, 10-11.
112 Ibid.
113 See supra note 105.
114 Brigadier General Charles J. Dunlap, Jr., USAF, "International Law and Terrorism: Some `Qs and As' for Operators," The Army Lawyer, Department of the Army Pamphlet 27-50-357 (October/November 2002): 24-25, 29. See also generally supra note 105.
115 Goldwater-Nichols Department of Defense Reorganization Act of 1986, Public Law 99- 433, 99th U.S. Congress, October 1, 1986, codified at U.S. Code, Title 10, Subtitle A, Part 1,
Chapter 5.
116 Commanders of Combatant Commands: Assignment; Powers and Duties, U.S. Code, Title 10, sec. 164 (2002).
117 Susan Schmidt and Thomas E. Ricks, "Pentagon Plans Shift in War on Terror: Special Operations Command's Role to Grow with Covert Approach," The Washington Post, 18 September 2002, p. 1 [database on-line]; available from https://www.us.army.mil/portal/jhtml/earlyBird/Sep2002/e20020918pentagon.htm; accessed 18 September 2002.
118 Combatant Commands: Assigned Forces; Chain of Command, U.S. Code, Title 10, sec. 162 (2002).
119 Commanders of Combatant Commands: Assignment; Powers and Duties, U.S. Code, Title 10, sec. 164(b)(1) (2002). The Goldwater-Nichols Department of Defense Reorganization Act of 1986 makes the following statement of policy: "In enacting this Act, it is the intent of Congress, consistent with the congressional declaration of policy in section 2 of the National Security Act of 1947 (50 U.S.C. 401) - . . . (3) to place clear responsibility on the commanders of the unified and specified combatant commands for the accomplishment of missions assigned to those commands." See Joint Chiefs of Staff, Unified Action Armed Forces (UNAAF), Joint Publication 0-2 (Washington, D.C.: Joint Chiefs of Staff, 10 July 2001), I-2.
120 Department of Defense, Functions of the Department of Defense and Its Major Components, Department of Defense Directive 5100.1 (Washington, D.C.: U.S. Department of Defense, 1 August 2002), 11.
121 Commanders of Combatant Commands: Assignment; Powers and Duties, U.S. Code, Title 10, sec. 164(d)(1) (2002).
122 Nathan Hodge, "CIA's Predator Behavior is Cause for Concern," Newsday, 6 June 2002, sec. Viewpoints, p. A49 (979 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
38
123 Ibid. Hodge's viewpoint is consistent with Presidential Decision Directive (PDD) - 35 issued by President Clinton, which instructs the Intelligence Community to provide military commanders with the tactical intelligence they need in operations. See Central Intelligence Agency, Center for the Study of Intelligence. Central Intelligence: Origin and Evolution (Washington, D.C.: U.S. Government Printing Office, September 2001), 13. 124 Nathan Hodge, "CIA's Predator Behavior is Cause for Concern," Newsday, 6 June 2002, sec. Viewpoints, p. A49 (979 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
125 Jonathan Weisman, "CIA, Pentagon Feuding Complicates War Effort," USA Today, 17 June 2002, sec. A, p. 11 (1534 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
126 Ibid.
127 Douglas Waller, "Inside the CIA's Covert Forces," Time, 10 December 2001, p. 56 [database on-line]; available from ProQuest; accessed 29 August 2002.
128 Bob Woodward, Bush at War (New York: Simon & Schuster, 2002), 193-194.
129 Bob Woodward, "Secret CIA Units Playing a Central Combat Role," The Washington Post, 18 November 2001, sec. A, p. 1 [database on-line]; available from ProQuest; accessed 29 August 2002.
130 The idea, and number figures, for this sentence and its point of view came from Thom Shanker and James Risen, "Rumsfeld Weighs New Covert Acts by Military Units," The New York Times, Late Edition - Final, 12 August 2002, sec. A, p. 1 (1604 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
131 Ron Kampeas, "CIA's Paramilitary Scores Successes," Associated Press Online, 20 May 2002, p. 1 (968 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002. See also Thom Shanker and James Risen, "Rumsfeld Weighs New Covert Acts by Military Units," The New York Times, Late Edition - Final, 12 August 2002, sec. A, p. 1 (1604 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
132 The CQ Researcher, Intelligence Reforms, Washington, D.C.: CQ Press, 25 January 2002, vol. 12, no. 3.
133 Ron Kampeas, "CIA's Paramilitary Scores Successes," Associated Press Online, 20 May 2002, p. 1 (968 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
134 Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-14.
135 Evan Thomas and Colin Soloway, "A Street Fight," Newsweek, 29 April 2002, sec. International, p. 30 (2596 words) [database on-line]; available from Lexis-Nexis; accessed 29 August 2002.
39
136 Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-4.
137 Ibid.
138 Bryan Bender, Kim Burger, and Andrew Koch, "Afghanistan: First Lessons," Jane's Special Reports, 14 December 2001; available from http://www.janes.com.html; Internet; accessed 12 September 2002.
139 Ibid.
140 Ibid.
141 Dana Priest, "CIA Killed U.S. Citizen in Yemen Missile Strike," The Washington Post, 8
November 2002, Sec. A, p. 1.
142 Vince Crawley and Amy Svitak, "Execution or Act of War: CIA Attack on Al-Qaida Leader
Surprises Pentagon, Brings Up Ethical Concerns," Army Times, 18 November 2002, p. 10.
143 Lieutenant Colonel Christopher F. Bentley, "Afghanistan: Joint and Coalition Fire Support in Operation Anaconda," Field Artillery (September-October 2002): 10.
144 Ibid.
145 These comments are based on the author's personal experience and discussions with Lieutenant Colonel Christopher F. Bentley in Uzbekistan and Afghanistan from December 2001 through June 2002. Lieutenant Colonel Bentley served as the Division Fire Support Coordinator (DFSCOORD), and the author served as the Staff Judge Advocate, for Coalition Joint Task Force - Mountain/10th Mountain Division (Light Infantry).
146 See generally Joint Chiefs of Staff, Interagency Coordination During Joint Operations, Joint Publication 3-08 (Washington, D.C.: Joint Chiefs of Staff, 9 October 1996).
147 Ibid.
148 The ideas regarding Annex V are derived in part from Rick Westermeyer, "Theater Interagency Operations," briefing slides with scripted commentary, Carlisle Barracks, U.S. Army War College, December 2002. See also generally Joint Chiefs of Staff, Interagency Coordination During Joint Operations, Joint Publication 3-08 (Washington, D.C.: Joint Chiefs of Staff, 9 October 1996).
149 Joint Chiefs of Staff, Unified Action Armed Forces (UNAAF), Joint Publication 0-2 (Washington, D.C.: Joint Chiefs of Staff, 10 July 2001), xiii. 150 See Joint Chiefs of Staff, Interagency Coordination During Joint Operations, Joint Publication 3-08 (Washington, D.C.: Joint Chiefs of Staff, 9 October 1996); and The White House, Presidential Decision Directive/National Security Council 56, Managing Complex Contingency Operations (May 1997); available from http://carlislewww.
army.mil/usacsl/divisions/pki/Political/Planning/interagency.htm; accessed 5 March 2003.
40
See also Association of the United States Army, Handbook for Interagency Management of Complex Contingency Operations (Washington, D.C., 13 August 1998); available from http://www.ausa.org/RAMPnew/PCR-PDD56Handbook.doc.htm; accessed 5 March 2003. This handbook is intended to institutionalize the mechanisms mandated by Presidential Decision Directive (PDD)-56. The procedures therein were derived from lessons learned from past U.S. participation in complex contingency operations and subsequent improvements made in the interagency planning process. The handbook provides a guide for those in the interagency that are or will be involved in planning such operations.
151 Chuck McCutcheon, "Intelligence Authorization Calls for Greater Reliance on Spies and New Technology," Congressional Quarterly Weekly, 15 December 2001, p. 2993. 152 Congressional Research Service Report for Congress, Intelligence and Law Enforcement: Countering Transnational Threats to the U.S. (Washington, D.C.: The Library of Congress, January 16, 2001), p. CRS-29.
153 Suzanne C. Nielson, "Political Control Over the Use of Force: A Clausewitzian Perspective," The Letort Papers, U.S. Army War College (May 2001): 17, quoting Carl von Clausewitz, On War, trans. and eds. Michael Howard and Peter Paret (Princeton: Princeton University Press, 1976), 94. No serious research paper by a student at the U.S. Army War College can neglect to include a quote from Clausewitz.
41
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Pentagon to Alter Military Tribunal Rules
U.S. to Tell Attorneys When Listening In on Talks With Guantanamo Clients
By John Mintz
Washington Post Staff Writer
Friday, February 6, 2004; Page A11
In response to complaints from civil libertarians, Pentagon officials said yesterday that they will change some of the rules governing the work of lawyers representing alleged al Qaeda and Taliban fighters before military tribunals.
Under the new rules, attorneys for the defendants who will be tried before the special military courts at Guantanamo Bay, Cuba, will be notified when their conversations with clients are electronically monitored by military officials, a Pentagon source said. The old rules had not clarified whether the defense lawyers would be informed about such eavesdropping.
The government's ability to listen in on attorney-client talks was one of many provisions of the tribunal rules denounced by human rights groups, some foreign officials and legal organizations such as the American Bar Association.
With rare exceptions, conversations between defense attorneys and their clients are confidential under military and civilian law. Last year, when military officials drew up the rules allowing the electronic monitoring of attorney-client sessions, some defense lawyer groups said they would refuse to participate.
Yesterday, some legal experts welcomed the rule changes but said they do not go far enough.
"These are certainly positive changes, and not simply cosmetic changes, but they're unlikely to have much impact" in persuading defense attorneys to take part in the tribunals, said Eugene R. Fidell, a military law expert who represents a U.S. Army Muslim chaplain who was stationed at Guantanamo Bay and is accused of security breaches. A much larger inequity in the rules, he said, is that convictions can only be appealed up the Pentagon's chain of command to the president, instead of to civil courts.
"These changes don't alter the fundamentals of that equation in the rules," Fidell said.
Air Force Maj. John Smith, spokesman for the Pentagon's Office of Military Commissions, said: "We're tweaking and making some clarifications and modifications to the rules. . . . I think the changes will be well received." The altered rules will be announced soon, he said.
Some military lawyers, including a number of Defense Department lawyers assigned to the tribunals, also have voiced concerns about the regulations. To date, six of the 680 detainees at the U.S. Navy prison at Guantanamo Bay have been designated eligible to stand trial before military tribunals.
One previous rule will remain: It requires that the monitoring of attorney-client conversations be undertaken only for security or intelligence reasons, and any information derived will not be given to the prosecution. But the new regulations include a provision that only military officials responsible for security, and not prosecutors, can order such eavesdropping, sources said. A bureaucratic wall will be erected to prevent migration of that information to the prosecution, one official said.
The old rules suggested defense lawyers could not ask for trial delays for personal or professional reasons, but the new rules allow that. The previous procedures suggested private defense lawyers would be constrained in working on the cases with their home offices, but the new rules make clear that they may do so.
Military officials say the rules allowing listening in on attorney-client sessions are comparable to procedures governing the U.S. Bureau of Prisons when it confronts security problems or assists in intelligence investigations.
Twenty civilian lawyers have applied to represent defendants before tribunals, which the Pentagon calls commissions. Only four have passed background checks that will allow them to take part, officials said.
? 2004 The Washington Post Company
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>> OUR FRIENDS IN CANADA...CSIS WATCH...
CALLING THE KANGAROO COURT
The following arrived in an email report from the courtroom where Ernst Zundel is seeking his release. At issue appears to be a deliberate attempt by CSIS to frame and smear Zundel because of his unpopular views. The judge in the case, himself a former CSIS official, is clearly trying to swing the case in CSIS favor and has refuised to recuse himself despite the obvious conflicts of interest. In virtually every instance where Zundel's lawyer attempted to ascertain just WHY Zundel had been declared a terrorist even though he has no criminal record, the judge sustained an objection based on "National Security".
Read the following report yourself, and you will get a good idea of just how afraid of Zundel the CSIS has become. More to the point, for you Canadian readers, this will illustrate the covert activities your own government is using against you.
--------------------------------------------------------------------------------
Can't Tell You -- National Security
TORONTO. January 26, 2004. For the second day in a row, defence lead counsel Peter Lindsay questioned a representative of the Canadian Intelligence Service (CSIS) on the witness stand in the Zundel hearing in Toronto. Mr. Lindsay got CSIS spokesman Dave Stewart to explain that a summary prepared for the then Minister of Citizenship and Immigration (Denis Coderre) and the Solicitor General Wayne Easter) last spring was a balanced document.
In questioning that was frequently interrupted by CSIS counsel Murray Rodych, lead Crown Attorney Donald MacIntosh and the judge Mr. Pierre Blais, all of whom seemed to run interference for witness Dave Stewart, Mr. Lindsay slowly revealed a picture of a skewed document which suppressed material favourable to Mr. Zundel. This was the information on which the ministers based their May 1, 2003 certificate declaring Ernst Zundel a "terrorist" and a threat to the security of Canada.
Today, especially, a repeated disruptive chorus stymied Mr. Lindsay in his questioning. "Objection: National security," Justice Department lawyer Donald MacIntosh would say.
"Objection sustained," Mr. Justice Blais, a former Solicitor-General and CSIS boss would respond. The judge had been asked by Douglas H. Christie, Mr. Zundel's former leader counsel to recuse himself on the basis of a "reasonable apprehension of bias" last fall, but he had refused.
After considerable argument, Friday, Mr. Lindsay had won the right to cross-examine Mr. Stewart. As a spokesman for an "adverse" party, the witness, under the rules of the Province of Ontario, can be cross-examined in direct questioning; that is, he can be questioned more aggressively and confrontationally than is customary with one's own normally friendly witness.
"Is it a fact that Mr. Zundel has no criminal convictions in Canada, despite having been here from 1958 to 2000?" Mr. Lindsay asked. Mr. Stewart agreed.
"It would appear that the Ministers of Citizenship and Immigration and the Solicitor-General were not told that Mr. Zundel had no criminal record after living here for 42 years," Mr. Lindsay continued.
"Not in this document," Mr. Stewart admitted.
"Are you able to explain to us why it was not put in the summary that Ernst Zundel had no criminal record?" the dogged Mr. Lindsay pursued.
"I did not write the summary," the CSIS spokesman answered. "The authors would have felt that it didn't need to be included in the summary," he added.
Mr. Lindsay questioned Mr. Stewart extensively about people mentioned in the summary whose guilt-by-association with Mr. Zundel serves, in the Crown's argument, to blacken Mr. Zundel's character.
In one of the numerous occasions when the witness was excluded, while the judge and lawyers argued procedure, Mr. Justice Blais asked; "It would be helpful for me to know why it is important that the summary mentions that some people have no criminal record."
"It's important," Mr. Lindsay replied, "because the witness said Friday that the report purports to be a balanced document as to why Mr. Zundel is a threat to the security of Canada. If so, it would present information on both sides. Yet, the document didn't mention that Ernst Zundel had no criminal record. Your Lordship has examined secret evidence that I have no knowledge of. I'm trying to undermine the fairness of CSIS. How fair has CSIS been? That's going to be a repetitive theme."
Mr. Lindsay then took the witness through a list of persons mentioned as associates of Mr. Zundel, eliciting the fact that most had no criminal record.
"Marc Lemire is mentioned in the summary. Does Mr. Lemire have a criminal record, sir?" Mr. Lindsay queried.
"There's no indication in the summary," Mr. Stewart admitted.
Mr. Lindsay also drew from the witness a reluctant admission that several of the people mentioned as Zundel associates were no longer politically active, including Wolfgang Droege, a founder of the Heritage Front and George Burdi, a former racialist firebrand and skinhead musician.
Mr. Stewart admitted that he'd read only about half of the voluminous material presented with the report. "Would there be someone at CSIS who has read more of it," Mr. Lindsay asked.
"Your Lordship ruled that the names of CSIS agents and the RCMP should not be revealed in the interests of national security," Murray Rodych objected.
Arguing for his right to question which had already been severely restricted, Mr. Lindsay said: "My friend called no witnesses. He strongly objected to the calling of Mr. Stewart until faced with an order from the judge and he opposed cross-examination.
"Do you know anyone at CSIS who quite likely has read more of the material than you have?" Mr. Lindsay again asked the witness.
"The witness should not be permitted to say whether others have more information. My friend is engaged in a fishing expedition?" Mr. MacIntosh argued.
"Have any of the people Mr. Zundel associated with been classified as a danger to the security of Canada?" Mr. Lindsay asked the witness.
"I don't know," Mr. Stewart admitted.
"Mr. Zundel lived in Canada from 1958 to 2000," Mr. Lindsay continued. "When did he begin to be a threat to the security of Canada?"
"That goes to operations and is classified," Mr. Rodych, the CSIS lawyer, objected.
"We know the answer: May 1, 2003," when the certificate of national security was served on Mr. Zundel, Mr. Justice Blais interrupted. "You're going nowhere. You're being tricky," he scolded Mr. Lindsay.
"I don't think, with respect, it's appropriate to call me tricky," the lanky defence lawyer retorted. "CSIS believes Mr. Zundel is a danger to the security of Canada," Mr. Lindsay continued.
"That's correct," Mr. Stewart responded.
Eventually, Mr. Stewart revealed that CSIS began to consider Mr. Zundel a threat to national security in 1990.
Entering on the explosive ground that lies at the heart of this case -- the animosity of CSIS to Mr. Zundel and the whole right wing -- Mr. Lindsay inquired: "Did CSIS play any role in the creation of the Heritage Front?"
"Not to my knowledge," the CSIS spokesman said.
"Didn't a gentleman named Grant Bristow play a major role in the development of the Heritage Front?" Mr. Lindsay asked.
"I recall the name, but I would say no," the witness replied.
"Was Grant Bristow an agent of CSIS," Mr. Lindsay continued.
Justice Department lawyer Donald MacIntosh was on his feet. "It's irrelevant. It's not connected to whether the certificate is reasonable, not whether it's true, but reasonable," he said, re-stating the incredible low threshold the Crown has to meet the triumph in this case.
"The question about Bristow's being an agent is not allowed," the judge ruled.
"Whether Bristow is an agent of CSIS goes to the fairness of CSIS. The Service makes a big production of the role and dominance of the White Supremacist Movement and Mr. Zundel's influence in it. If CSIS played a role in it, it would be significant."
"I don't think it's acceptable. We're not going to enter that territory. I accept the submissions of Mr. Rodych. I already made a decision on naming employees of CSIS and the RCMP" Mr. Justice Blais, the former boss of CSIS, ruled, temporarily sandbagging the defence counsel.
Pursuing another tack, M. Lindsay asked: "The summary refers to Mr. Zundel's book The West, War and Islam. Mr. Zundel was charged with spreading false news with this book. Did you know Mr. Zundel was acquitted of this charge? Did the summary provide the results?"
"I don't believe it does," Mr. Stewart admitted.
The CSIS summary to the ministers mentioned that Pastor Butler, a Zundel acquaintance was among those charged with conspiracy to overthrow the U,.S. government. "Does the summary bother to mention that the defendants were found not guilty by an Arkansas jury?" Mr. Lindsay demanded.
"It does not," Mr. Stewart again had to admit.
"But the Ministers of Citizenship and Immigration and the Solicitor-General were not informed that they had been acquitted. The ministers were given incomplete information?"
"That's correct," Mr. Stewart acknowledged.
"Does CSIS believe that Mr. Zundel has engaged in terrorism, that he is a terrorist?" Mr., Lindsay asked.
"Yes," the CSIS spokesman replied.
"What if I suggest to you that Mr. Zundel is a rightwing extremist but not a terrorist?" Mr. Lindsay continued.
Then, Mr. Lindsay dropped his bombshell. Reading from CSIS Director General Ward Elcock's testimony to the Commons Subcommittee on National Security, November 24, 2003, he said: "Mr. Zundel is certainly a widely known extremist on the rightwing side. I'm not sure I'd go so far as to call him a terrorist. An extremist he certainly is."
"Is he testifying on behalf of CSIS," Mr. Lindsay asked.
"I don't know," Mr. Stewart responded lamely. "I don't know the precise context of what Mr. Elcock is testifying to here. There are many definitions of terrorists."
Mr. Justice Blais hurriedly adjourned the hearing for lunch wanting to know the document on which Mr. Elcock was being questioned by Joe Clark in the committee hearing. The hasty adjournment rescued the witness.
After lunch, Mr. Lindsay pursued the allegation that Mr. Zundel is a threat to national security because he's seen as a beacon to the White Supremacist Movement. Mr. Lindsay pointed out that the movement had been in decline in Canada since 1994. Yet, Mr. Zundel had remained in Canada from 1994 to 2000.
"Then, did Mr. Zundel's threat to the security of Canada end in 1995?" Mr. Lindsay asked.
"No. If Mr. Zundel's activities continue as they were prior to 1995, he'd be a threat to the security of Canada
"So, the logical conclusion is he would be less of a threat since 1995," Mr. Lindsay continued.
"I see your point," Mr. Stewart admitted. "It's difficult for me to say if an individual would have less impact."
Under questioning, Mr. Stewart admitted that the CSIS summary, which made much of Mr. Zundel's use of the mails for distributing "hate literature", failed to tell the ministers that, in 1982, Mr. Zundel's mailing privileges had been restored after a one year suspension on just such allegations.
The afternoon ended with a tense exchange about the dramatic charges in Andrew Mitrovica's book Covert Entry: Spies Lies and Crimes Within Canada's Secret Service.
"Did CSIS ever intercept Mr. Zundel's mail?" the defence lawyer asked.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," the unsmiling former boss of CSIS ruled.
"Did CSIS have an agent named John Farrell?" Mr. Lindsay asked.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," the unsmiling former boss of CSIS ruled.
The book Covert Entry suggests that "Mr. Zundel's mail had been intercepted by CSIS," Mr. Lindsay stated.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
"CSIS ordered Mr. Farrell to temporarily stop intercepting mail to Mr. Zundel," Mr. Lindsay continued.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
On page 140 of the book, there's the suggestion that the May, 1885 bomb "delivered to Mr. Zundel's home had been intercepted by CSIS," Mr. Lindsay continued.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
"There's the suggestion that CSIS was aware of the bomb?" Mr. Lindsay asked.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
The book suggests "that CSIS knew of the potential bomb and did not alert Metro police, the post office or Mr. Zundel."
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
"There is the suggestion that Mr. Farrell raised the issue with CSIS about the danger to passengers on airplanes" that might have transported the bomb.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
Court resumes Tuesday, with Mr. Stewart on the stand.
In another development, Mr. Lindsay will appear in the Federal Court of Appeal (330 University Avenue) in Toronto, Wednesday at 10:00 a.m. to argue a motion seeking a stay of proceedings pending an appeal against Mr. Justice Blais's denying disclosure to the defence of the names of CSIS and RCMP agents involved in preparing the Zundel case. -- Paul Fromm
TORONTO. January 26, 2004. For the second day in a row, defence lead counsel Peter Lindsay questioned a representative of the Canadian Intelligence Service (CSIS) on the witness stand in the Zundel hearing in Toronto. Mr. Lindsay got CSIS spokesman Dave Stewart to explain that a summary prepared for the then Minister of Citizenship and Immigration (Denis Coderre) and the Solicitor General (Wayne Easter) last spring was a balanced document. In questioning that was frequently interrupted by CSIS counsel Murray Rodych, lead Crown Attorney Donald MAcIntosh and the judge Mr. Pierre Blais, all of whom seemed to run interference for witness Dave Stewart, Mr. Lindsay slowly revealed a picture of a skewed document which suppressed material favourable to Mr. Zundel. This was the information on which the ministers based their May 1, 2003 certificate declaring Ernst Zundel a "terrorist" and a threat to the security of Canada.
Today, especially, a repeated disruptive chorus stymied Mr. Lindsay in his questioning. "Objection: National security," Justice Department lawyer Donald MacIntosh would say.
"Objection sustained," Mr. Justice Blais, a former Solicitor-General and CSIS boss would respond. The judge had been asked by Douglas H. Christie, Mr. Zundel's former leader counsel to recuse himself on the basis of a "reasonable apprehension of bias" last fall, but he had refused.
After considerable argument, Friday, Mr. Lindsay had won the right to cross-examine Mr. Stewart. As a spokesman for an "adverse" party, the witness, under the rules of the Province of Ontario, can be cross-examined in direct questioning; that is, he can be questioned more aggressively and confrontationally than is customary with one's own normally friendly witness.
"Is it a fact that Mr. Zundel has no criminal convictions in Canada, despite hjaving been here from 1958 to 2000?" Mr. Lindsay asked. Mr. Stewart agreed.
"It would appear that the Ministers of Citizenship and Immigration and the Solicitor-General were not told that Mr. Zundel had no criminal record after living here for 42 years," Mr. Lindsay continued.
"Not in this document," Mr. Stewart admitted.
"Are you able to explain to us why it was not put in the summary that Ernst Zundel had no criminal record?" the dogged Mr. Lindsay pursued.
"I did not write the summary," the CSIS spokesman answered. "The authors would have felt that it didn't need to be included in the summary," he added.
Mr. Lindsay questioned Mr. Stewart extensively about people mentioned in the summary whose guilt-by-association with Mr. Zundel serves, in the Crown's argument, to blacken Mr. Zundel's character.
In one of the numerous occasions when the witness was excluded, while the judge and lawyers argued procedure, Mr. Justice Blais asked; "It would be helpful for me to know why it is important that the summary mentions that some people have no criminal record."
"It's important," Mr. Lindsay replied, "because the witness said Friday that the report purports to be a balanced document as to why Mr. Zundel is a threat to the security of Canada. If so, it would present information on both sides. Yet, the document didn't mention that Ernst Zundel had no criminal record. Your Lordship has examined secret evidence that I have no knowledge of. I'm trying to undermine the fairness of CSIS. How fair has CSIS been? That's going to be a repetitive theme."
Mr. Lindsay then took the witness through a list of persons mentioned as associates of Mr. Zundel, eliciting the fact that most had no criminal record.
"Marc Lemire is mentioned in the summary. Does Mr. Lemire have a criminal record, sir?" Mr. Lindsay queried.
"There's no indication in the summary," Mr. Stewart admitted.
Mr. Lindsay also drew from the witness a reluctant admission that several of the people mentioned as Zundel associates were no longer politically active, inclkuding Wolfgang Droege, a founder of the Heritage Front and George Burdi, a former racialist firebrand and skinhead musician.
Mr. Stewart admitted that he'd read only about half of the voluminous material presented with the report. "Would there be someone at CSIS who has read more of it," Mr. Lindsay asked.
"Your Lordship ruled that the names of CSIS agents and the RCMP should not be revealed in the interests of national security," Murray Rodych objected.
Arguing for his right to question which had alrady been severely restricted, Mr. Lindsay said: "My friend called no witnesses. He strongly objected to the calling of Mr. Stewart until faced with an order from the judge and he opposed cross-examination.
"Do you know anyone at CSIS who quite likely has read more of the material than you have?" Mr. Lindsay again asked the witness.
"The witness should not be permitted to say whether others have more information. My friend is engaged in a fishing expedition?" Mr. MacIntosh argued.
"Have any of the people Mr. Zundel associated with been classified as a danger to the saecurity of Canada?" Mr. Lindsay asked the witness. "I don't know," Mr. Stewart admitted.
"Mr. Zundel lived in Canada from 1958 to 2000," Mr. Lindsay continued. "When did he begin to be a threat to the security of Canada?"
"That goes to operations and is classified," Mr. Rodych, the CSIS lawyer, objected.
"We know the answer: May 1, 2003," when the certificate of national security was served on Mr. Zundel, Mr. Justice Blais interrupted. "You're going nowhere. You're being tricky," he scolded Mr. Lindsay.
"I don't think, with respect, it's appropriate to call me tricky," the lanky defence lawyer retorted. "CSIS believes Mr. Zundel is a danger to the security of Canada," Mr. Lindsay continued.
"That's correct," Mr. Stewart responded.
Eventually, Mr. Stewart revealed that CSIS began to consider Mr. Zundel a threat to national security in 1990.
Entering on the explosive ground that lies at the heart of this case -- the animposity of CSIS to Mr. Zundel and the whole right wing -- Mr. Lindsay inquired: "Did CSIS play any role in the creation of the Heritage Front?"
"Not to my knowledge," the CSIS spokesman said.
"Didn't a gentleman named Grant Bristow play a major role in the developm,ent of the Heritage Front?" Mr. Lindsay asked.
"I recall the name, but I would say no," the witness replied.
"Was Grant Bristow an agent of CSIS," Mr. Lindsay continued.
Justice Department lawyer Donald MacIntosh was on his feet. "It's irrelevant. It's not connected to whether the certificate is reasonabvle, not whether it's true, but reasonable," he said, re-stating the incredible low threshold the Crown has to meet the triumph in this case.
"The question about Bristow's being an agent is not allowed," the judge ruled.
"Whether Bristow is an agent of CSIS goes to the fairness of CSIS.the Service makes a big production of the role and dominance of the White Supremacist Movement and Mr. Zundel's influence in it. If CSIS played a role in it, it would be significant."
"I don't think it's acceptable. We're not going to enter that territory. I accept the submissions of Mr. Rodych. I already made a decision on naming employees of CSIS and the RCMP" Mr. Justice Blais, the former boss of CSIS, ruled, temporarily sandbagging the defence counsel.
Pursuing another tack, M. Lindsay asked: "The summary refers to Mr. Zundel's book The West, War and Islam. Mr. Zundel was charged with spreading false news with this book. Did you know Mr. Zundel was acquitted of this charge? Did the summary provide the results?"
"I don't believe it does," Mr. Stewart admitted.
The CSIS summary to the ministers mentioned that Pastor Butler, a Zundel acquaitance was among those charged with conspiracy to overthrow the U,.S. government. "Does the summary bother to mention that the defendants were found not guilty by an Arkansas jury?" Mr. Lindsay demanded.
"It does not," Mr. Stewart again had to admit.
"But the Ministers of Citizenship and Immigration and the Solicitor-General were not informed that they had been acquitted. The ministers were given incomplete information?"
"That's correct," Mr. Stewart acknowledged.
"Does CSIS believe that Mr. Zundel has engaged in terrorism, that he is a terrorist?" Mr., Lindsay aksed.
"Yes," the CSIS spokesman replied.
"What if I suggest to you that Mr. Zundel is a rightwing extremist but not a terrorist?" Mr. Lindsay continued.
Then, Mr. Lindsay dropped his bombshell. Reading from CSIS Director General Ward Elcock's testimony to the Commons Subcommittee on National Security, November 24, 2003, he said: "Mr. Zundel is certainly a widely known extremist on the rightwing side. I'm not sure I'd go so far as to call him a terrorist. An extremist he certainly is."
"Is he testifying on behalf of CSIS," Mr. Lindsay asked.
"I don't know," Mr. Stewart responded lamely. "I don't know th precise context of what Mr. Elcock is testifying to here. There are many definitions of terrorists."
Mr. Justice Blais hurriedly adjourned the hearing for lunch wanting to know the document on which Mr. Elcock was being questioned by Joe Clark in the committee hearing. The hasty adjournment rescued the witness.
After lunch, Mr. Lindsay pursued the allegation that Mr. Zundel is a threat to national security because he's seen as a beacon to the White Supremacist Movement. Mr. Lindsay pointed out that the movement had been in decline in Canada since 1994. Yet, Mr. Zundel had remained in Canada from 1994 to 2000.
"Then, did Mr. Zundel's threat to the security of Canada end in 1995?" Mr. Lindsay asked.
"No. If Mr. Zundel's activities continue as they were prior to 1995, he'd be a threat to the security of Canada
"So, the logical conclusion is he would be less of a threat since 1995," Mr. Lindsay continued.
"I see your point," Mr. Stewart admitted. "It's difficult for me to say if an individual would have less impact."
Under questioning, Mr. Stewart admitted that the CSIS summary, which made much of Mr. Zundel's use of the mails for distributing "hate literature", failed to tell the ministers that, in 1982, Mr. Zundel's mailing privileges had been restored after a one year suspension on just such allegations.
The afternoon ended with a tense exchange about the dramatic charges in Andrew Mitrovica's book Covert Entry: Spies Lies and Crtimes Within Canada's Secret Service.
"Did CSIS ever intercept Mr. Zundel's mail?" the defence lawyer asked.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," the unsmiling former boss of CSIS ruled.
"Did CSIS have an agent named John Farrell?" Mr. Lindsay asked.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," the unsmiling former boss of CSIS ruled.
The book Covert Entry suggests that "Mr. Zundel's mail had been intercepted by CSIS," Mr. Lindsay stated.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
"CSIS ordered Mr. Farrell to temporarily stop intercepting mail to Mr. Zundel," Mr. Lindsay continued.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
On page 140 of the book, there's the suggestion that the May, 1885 bomb "delivered to Mr. Zundel's home had been intercepted by CSIS," Mr. Lindsay continued.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
"There's the suggestion that CSIS was aware of the bomb?" Mr. Lindsay asked.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
The book suggests "that CSIS knew of the potential bomb and did not alert Metro police, the post office or Mr. Zundel."
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
"There is the suggestion that Mr. Farrell raised the issue with CSIS about the danger to passengers on airplanes" that might have transported the bomb.
"Objection: national security," Donald MacIntosh snapped.
"Sustained," Mr. Justice Blais ruled.
Court resumes Tuesday, with Mr. Stewart on the stand.
In another development, Mr. Lindsay will appear in the Federal Court of Appeal(330 University Avenue) in Toronto, Wednesday at 10:00 a.m. to argue a motion seeking a stay of proceedings pending an appeal against Mr. Justice Blais's denying disclosure to the defence of the names of CSIS and RCMP agents involved in preparing the Zundel case.
--------------------------------------------------------------------------------
>> AHEM...
Reformers implore Sistani to Intervene in Iran Crisis
Ali Nourizadeh of the Saudi newspaper ash-Sharq al-Awsat reports today that more than 400 Iranian writers and cultural figures, along with some members of parliament, have penned a letter to Grand Ayatollah Ali Sistani of Najaf, requesting that he express his opinion on the "massacre of democracy and the transformation of parliamentary elections into a mere stage play."
They wrote, "We have followed with appreciation your courageous positions in calling for the holding of free, fair, and direct elections in Iraq, where the population did not have, until the fall of the Baath regime, the right to own a shortwave radio. That is, holding free elections that can escape foreign influence is a difficult matter if not an impossible one. Nevertheless, your excellency is insisting that the first and last word in the matter of choosing rulers and representatives belongs to the Iraqi people. How wonderful it would be if your excellency would express your opinion regarding the farce that some in your native land of Iran are attempting to impose on its people, who are wide awake, under the rubric of "elections." Najaf has always been a support for freedom lovers in Iran, for in the Constitutional Revolution [of 1905-1911], your righteous predecessors such as Mirza Na'ini, Akhund Khurasani, and Allamah Mazandarani, supported the devotees of liberty in Iran. Without their famous fatwa, the people would not have been able to bring down the tyrant Muhammad Ali Shah."
They refer as well to the positive role of the Najaf clerics in Iran's oil nationalization movement under Prime Minister Mosaddegh. They then complain that Iran is presently one big prison and that major clerics such as Ayatollahs Montazeri and Tabataba'i Qomi are under house arrest. [Montazeri is in trouble for rejecting the Khomeinist doctrine of the Guardianship of the Jurisprudent, which says that clerics must directly rule the state. Sistani also rejects this doctrine, and would be under house arrest if he were in Iran.] They describe the exclusion of more than 2500 reformist candidates from running as a [political] "massacre", and pointedly say that many of those excluded are followers of Sistani in religious affairs [rather than of Khamenei]!
Iran is currently undergoing a constitutional crisis. The clerical Guardian Council excluded some 4000 of 8000 announced candidates from running in the February 20 elections, including large numbers of sitting members of parliament, on the grounds that they were insufficiently faithful to the ideals of Ayatollah Khomeini. Once elections are actually held, they appear to have been relatively free in Iran in recent years, but the ability of clerical conservatives to exclude candidates and to overturn legislation has crippled the once-flourishing reform movement in parliament. On appeal, some of the exclusions were reversed.
Still, a third of the Iranian parliament has resigned in protest against the Guardian Council's power play. President Khatami has threatened to postpone the elections.
On Wednesday, Supreme Jurisprudent Ali Khamenei intervened, saying that elections would be held, if necessary under the armed supervision of the Revolutionary Guards, on the scheduled date, thus slapping down Khatami. But he also permitted the Ministry of Intelligence, where Khatami supporters have some influence, to review the candidate exclusions and overturn those it wished, and promised that the ministry's decision would be final. Reformers are unconvinced that the Feb. 20 elections can possibly be fair, nevertheless.
The reformers' reference to the Constitutional Revolution, which instituted the first elected parliament in Iran and first challenged absolutist rule, is extremely provocative, since it casts Khamenei in the role of the tyrant Muhammad Ali Shah. And the call for another intervention on the side of constitutionalism and the rule of law from Najaf is striking for its invocation of historical parallels.
I don't know if Sistani will respond to this appeal. He has his hands full with the situation in Iraq, after all. But this could get very interesting indeed.
posted by Juan Cole at 2/5/2004 09:03:54 AM
Al-Hakim: Presidential Council OK
Abdul Aziz al-Hakim, head of the Supreme Council for Islamic Revolution in Iraq and a member of the US-appointed Interim Governing Council, has according to AFP given his assent to the presidential council proposed by Adnan Pachachi and the Sunnis.
Pachachi had suggested a rotating 3-man presidency, which would appoint the prime minister and the cabinet, and would have a veto over laws passed by parliament. In essence, the presidential council would function as a sort of small Senate, but confusingly placed in the executive branch. It would itself be elected by the transitional parliament. It would be expected to have a representative from each of the three major ethnic groups, Shiites, Sunni Arabs, and Kurds.
Al-Hakim said, "The idea of a sovereignty council is not rejected from our side." He is further quoted as saying, "The reason to have this council is to solve a problem. If we want to talk more frankly, the Iraqi people have concerns. The Kurds suffered from injustice, they have fears and they would like to occupy different [government] positions." He continued, "Everyone should be reassured, we want to reassure them all and we want everyone to participate actively in this period until a constitution is drafted and elections are held . . . The number of members [in the presidential council] should be studied. If the problem can be solved by three members, let it be three; if it's five, then it should be five, and if more are needed, then there should be more."
I think this idea of a multi-person rotating presidency is a horrible idea, guaranteed to cause gridlock in the executive branch. If they want a senate to over-rule the Shiite majority in the parliament, they should just create a senate. One executive is enough.
Meanwhile, the London daily al-Hayat quoted Grand Ayatollah Ali Sistani as warning on Wednesday, "A difficult confrontation is coming next, with the forces of evil that wish to prevent Iraqis from enjoying their right to a free and democratic life." The article gives no context for this statement, so it is hard to know what exactly he is warning against, but it may be a reference to the Sunni radicals, of the sort who seem to have been responsible for the massive Irbil bombings on Sunday.
The same newspaper said that Iraqi Islamic Party leader Muhsin Abdul Hamid said that he finds the prospect of a civil war in Iraq unlikely.
posted by Juan Cole at 2/5/2004 09:03:33 AM
Sistani Aide: Loose Federalism not in Iraq's Interests
BBC Monitoring picked up a radio interview in Cairo on Sawt al-`Arab on Wednesday with an aide to Grand Ayatollah Ali Sistani named Ayatollah Abu al-Qasim Bidali, conducted by Fawzi al-Jundi. Some brief excerpts:
Bidali "With respect to the issue of elections, His Eminence Grand Ayatollah Al-Sistani says they should be held before the date they had chosen [May 31] - within the coming days. That is Ayatollah Al-Sistani's opinion . . . "
Al-Jundi But many members of the Governing Council oppose early elections in Iraq, at least at this stage, because the security situation is deteriorating?
Bidali They have finally been convinced that the meeting of UN envoys and Iraqi experts is an excellent idea.
Al-Jundi If the United Nations decides that elections should be held at a later stage, how will you react?
Bidali "There would be contacts and discussions on various issues. We see the situation on the ground and we will seek alternatives if they rejected this proposal. However, we cannot say at this point what we will do then. We must wait for the report of the UN envoy and then we will decide . . . "
Al-Jundi There are reports circulating about proposals to establish a federation based on ethnic or sectarian division. What sort of federal system do you support?
Bidali We have no specific opinion on the issue of an [loose] Iraqi federation, but we do not believe that it would be in the interests of Iraq . . . "
posted by Juan Cole at 2/5/2004 09:02:05 AM
Tension in Najaf between SCIRI and Sadrists
Hamza Hendawi of AP recently reported on the rising tensions between the followers of young radical cleric Muqtada al-Sadr and other Shiite factions in Iraq.
In my own view, such tension is a side effect of the rise of the Shiites to political prominence. As the community becomes a prime source of power, the struggle to control it will intensify.
Hendawi's report is borne out by a piece in Xinhua on Tuesday 2/3, which says that tensions are high in Najaf because of disputes between the Sadrist militia and the Badr Corps of the Supreme Council for Islamic Revolution in Iraq, in part over control of the shrine of Imam Ali. Its reporter wrote, '"The shrine of the Imam Ali (the forth caliph at the Islamic State) is closed to visitors for days now, and the situation is very tense," [Aswad] Al Abayachi said and advised us to return immediately to Baghdad.'
The word on the street in Najaf, according to Xinhua, is that Muqtada al-Sadr, 30, has lost the political spotlight to Sistani, 73, recently and wants to regain it. Also, it was alleged that Sadr was using his office inside the Imam Ali Shrine complex at Najaf as a court in which to try people. Followers of Sistani demanded that the office be closed, provoking the tension.
Xinhua said, "Some Iraqi newspapers mentioned lately that the IGC gave Al Sadr a 48-hour deadline to cancel the court that he formed and close the prison that came with the court and hand the detainees to the government. They pointed out that the Council had decided to send a special delegation to Najaf to mediate between the two disputing parties.
Many observers expect tensions among Shiites to peak during the upcoming Ashura mourning ceremonies, in which emotions run high and tens of thousands of pilgrims will come to Najaf and Karbala.
posted by Juan Cole at 2/5/2004 09:01:20 AM
-----------------------------------------------------------
>> IRAQ MONEY FLOWS...HOW NOT TO INJECT?...
Mohammed Assem Abu Darwish
January 15, 2004
Lebanonwire
Lebanese authorities confiscate $15 million worth of Iraqi currency aboard private jetliner
BEIRUT, Lebanon, Jan 15, 2004 (AP WorldStream via COMTEX) -- Lebanese customs authorities have confiscated more than US$15 million worth of new Iraqi dinars that came to the country aboard a private plane from Baghdad, security officials said Thursday.
The officials, speaking on condition of anonymity, said 19.5 billion dinars (US$15.6 million) were confiscated aboard the Lebanese-owned Magic Carpet plane late Wednesday.
Authorities detained three Lebanese businessmen who were aboard the plane and are being questioned at the Financial Prosecutor's office, the officials said. The three were identified as Richard Jreisati, Mohammed Assem Abu-Darwish and Michel Mukattaf.
Some officials said the notes might have been brought to money exchange companies in Lebanon.
An official with Magic Carpet, speaking on condition of anonymity, said the plane was not carrying illegal items. He said those responsible for what is put on the plane are the authorities in the country where the plane took off.
The confiscation came a day before Iraq's old bank notes - bearing former Iraqi President Saddam Hussein's portrait - became obsolete following a three-month period to exchange them for the new currency.
Magic Carpet, which began chartered flights from Beirut to Baghdad after the collapse of Saddam's government in April, recently resumed flights after a gap in the summer due to attacks on some planes flying to or from Baghdad International Airport.
Magic Carpet officials have said another reason for ceasing flights to Iraq was that American occupation authorities refused to give them licenses.
It recently resumed the flights.
By BASSEM MROUE Associated Press Writer
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Iraq riches whisked to Syria
By Paul Martin -THE WASHINGTON TIMES 19/1/04
PARIS -- Syria's Central Bank and the Medina Bank in Lebanon are holding at least $2 billion in cash, as well as gold bullion and platinum, that was smuggled out of Iraq, according to a letter written on the stationery of the Syrian army's intelligence department.
The letter says $1.3 billion was deposited in the Syrian Central Bank in an official "presidency" account, while another $700 million was placed in the Medina Bank. The document does not state the value of the gold and platinum, although it says these are also in the Syrian Central Bank.
The handwritten letter to a Syrian exile in Europe, which also bears what appears to be the official stamp of the Syrian army intelligence department, says the deal was struck not long before a U.S.-led coalition invaded Iraq early last year.
The document was sent to Nizar Nayouf, an exiled Syrian human-rights activist and past winner of the United Nations Educational, Scientific and Cultural Organization's World Press Freedom Prize who is living in Paris.
While the claims in the letter could not be further verified, Mr. Nayouf, a journalist and democracy activist who was released from a Syrian prison in May 2001, said past information provided by the same person had proved reliable.
The letter names two members of the Lebanese parliament as go-betweens.
One of them is Emil Lahoud, son of the pro-Syrian president of Lebanon. The second is Talal Arsilan, a member of the minority Druze ethnic group. A third go-between is listed as Karim Bakr Adouni, who is described as head of the al Qata'ib Party.
The letter says the go-betweens met with three top Syrian security chiefs before they left on their secret trip to Baghdad.
One security chief is listed as Gen. Ghazi Kanaan, Syria's former chief of military intelligence in Lebanon, who has since been put in charge of Syria's political security department. Other sources say Gen. Kanaan helped provide means of transporting the money and precious metals across the Iraqi-Syrian border.
The other senior Syrian officers are listed in the document as Brigadier Zulhimmah Shalish, who is believed to be the chief of President Bashir Assad's Special Guards, and Gen. Ristom Ghazali, the chief of Syrian intelligence in Lebanon.
Lebanon has been under varying degrees of Syrian domination for more than two decades.
American authorities have long suspected that Syria took Saddam Hussein's money into safe custody shortly before the war. The Treasury Department sent senior investigators to Syria in October and again this month, demanding that the Syrians open their books.
Saddam is believed to have stashed vast sums of money around the world, including funds that he and close associates siphoned from the United Nations' oil-for-food program beginning in 1996.
Money deducted from officials' salaries supposedly to support Saddam's Ba'ath Party is also unaccounted for.
Saddam's son Uday hauled away about $1 billion from the Iraqi Central Bank in three trucks just as the war started, but coalition officials say most of that money has been recovered. It was headed toward Syria when intercepted, they say.
Secretary of State Colin L. Powell went to Syria soon after the war ended and publicly warned Mr. Assad to cooperate in tracking Iraqi fugitives and money.
Mr. Assad has become much more active lately in seeking to reduce American pressure. He recently made the first official visit to neighboring Turkey after decades of tension over the latter's pro-Western stance.
Mr. Assad also made the first official Syrian presidential visit to Britain in December 2002 as the United States and Britain were preparing for the war in Iraq.
"The U.S. has Syria firmly in its sights," said one analyst, "and Assad may feel compelled to admit the Iraqi money is there, if only to reduce American pressure for changing his regime."
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Iraq Council Says Lebanon to Release Money
By Associated Press
January 31, 2004, 11:27 PM EST
BEIRUT, Lebanon -- Lebanon has agreed to return to Iraq $15.6 million that it confiscated from a plane at Beirut's airport in early January, a member of the Iraqi Governing Council said Saturday.
Mouwafak al-Rubaie spoke to reporters about the cash after talks with Lebanese Prime Minister Rafik Hariri. Airport officials seized the money -- 19.5 billion Iraqi dinars -- after it was found on a private plane that flew in from Baghdad on Jan. 14.
One of the Lebanese businessman on the plane, Mohammed Assem Abu Darwish, who was arrested and then released, was quoted as telling police that the money was to pay mainly for armored cars to protect Iraqi officials.
"We discussed many issues, including the issue of money in dinars held in Beirut," al-Rubaie said of his Hariri meeting. "This issue is in its final phase. God willing, this money will be released and returned to Iraq."
Al-Rubaie said Lebanon had also promised to return the funds that Iraq deposited in Lebanese banks during the regime of ousted President Saddam Hussein. But he did not give a date for when this would happen.
Lebanese authorities have said the money will be returned when Iraq has a sovereign government. Lebanon has not given a figure for the money, but the U.S. Treasury has said it amounts to $495 million.
Also Saturday, Al-Rubaie met Lebanon's top Shiite Muslim cleric, Ayatollah Sheik Mohammed Hussein Fadlallah.
He said Fadlallah wanted to see a quick end to the U.S.-led occupation of Iraq, and that he explained to the sheik the process by which the occupying powers are scheduled to hand over authority to an Iraqi government on June 30.
Copyright ? 2004, The Associated Press
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>> IRAQ MONEY FLOWS...2
Lebanon May Unfreeze Iraqi Assets in Beirut Banks
A member of the Iraqi Governing Council said Lebanon will return the Iraqi millions in its banks, but he gave no indication of when it will happen.
Mouwafak al-Rubaie met the speaker of Lebanon's parliament, Nabih Berri, together with fellow Governing Council member Younadem Kanna.
"The talks were good, and we spoke about the Iraqi money held in Lebanon. We heard good comments that Iraqi money in Beirut will be released," al-Rubaie said. He did not elaborate.
In May, a U.S. Treasury official said Lebanon had US$495 million in Iraqi funds from the years when President Saddam Hussein was in power. Lebanon has acknowledged it has Iraqi money, but it has not released a figure. Its authorities have said the money will be returned when Iraq has a sovereign government.
In November, Iraqi Finance Minister Kamel al-Gailani said in Beirut that Lebanon and Iraq were developing a means of returning the Iraqi assets.
Al-Rubaie's comments came a day after he and Kanna held talks with Syrian President Bashar Assad in Damascus about the Iraqi funds in Syrian banks, which are estimated at US$300-500 million.
Kanna said afterward that Assad told him "the Iraqi money that exists in Syria is secure and will be turned over to Iraqi authorities."
But Kanna reported Assad as saying the money would be given to an elected Iraqi government, not the current U.S.-appointment administration.
It is likely that Lebanon, which is close to Syria's diplomacy, will adopt the same position.
Relations between Lebanon and the U.S.-appointed Governing Council have been cool because of Lebanon's strong opposition to the U.S. occupation of Iraq. Lebanon still has not recognized the council as representing the Iraqi people.
The two-day visit of al-Rubaie and Kanna comes two weeks after Lebanese authorities confiscated 19.5 billion Iraqi dinars (US$15.6) from a private plane that flew to Beirut from Iraq.
The Iraqi Interior Ministry said the money was to be used for government purchases. A Lebanese businessmen on the plane, Mohammed Assem Abu Darwish, told investigators the money was to pay mainly for armored cars for Iraqi officials.
Al-Rubaie and Kanna did not say whether they spoke to Berri about the confiscated dinars.(AP)
Beirut, Updated 03 Feb 04, 09:01
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Salameh: Government cannot force return of Iraqi money
Baghdad official wants funds repatriated
Ousted regime is said to have hidden some $550 million in Lebanese banks
Karine Raad
Daily Star correspondent
Lebanon's Central Bank has no authority to force the return of more than $550 million deposited in the country's banks by the regime of former Iraqi dictator Saddam Hussein, said the bank governor Riyadh Salameh on Thursday.
Salameh said that Parliament would have to pass a law to provide such authorization.
He said, "Transactions between Iraqi authorities, the proprietors of the funds, and the Lebanese (banks) were governed by existing laws and left to the discretion of the banks themselves."
Iraqi Governing Council member Mowaffaq al-Roubaie said after meeting with Prime Minister Rafik Hariri on Saturday that Lebanon had agreed to return the funds. He put the total at some $495 million, but Salameh said that "the
sum exceeds $550 million, deposited in over 20 private Lebanese banks."
Beirut has never been opposed to the repatriation of the funds, but wanted to wait until a permanent government was installed in Iraq, which currently has only the temporary Governing Council overseen by the US-led coalition.
Salameh said that the Central Bank had done nothing more than inform the interim Iraqi authorities of the funds deposited in the country.
Another stumbling block has been that funds claimed by Iraq were also frozen in Lebanon to cover debts owed by the former regime to Lebanese businesses.
Salameh declined to say how much money there might be, adding that the Central Bank was not involved in the matter.
Meanwhile, State Prosecutor Adnan Addoum decided on Thursday to lift a ban forbidding Mohammed Abu Darwish, foreign affairs official of the disbanded Lebanese Forces Party Richard Jreisati, and customs agent Zawdo Zouein from leaving the country. The three men were detained in connection with the transfer of $15.6 million worth of Iraqi dinars into the country.
Addoum will meet Friday with Iraq's charge d'affaires, Tahseen Olayan, who will provide additional documents linked to the case.
In a separate development, Addoum announced on Thursday that the leader of the disbanded Lebanese Forces Party, Samir Geagea, was in good health and receiving regular medical attention. Geagea, who is serving a life sentence with hard labor at the Roumieh Central Prison, was transferred to the Sacred Heart Hospital in Hazmieh several days ago for regular clinical tests.
In regard to the Cotonou airplane crash, Addoum received a letter from the French investigating team saying that they had evidence that the airplane was the same one that landed on a weekly basis in the Beirut International Airport (BIA) and that it met the required safety standards. The team said that the Boeing, which crashed in Cotonou on Dec. 24, 2003, was not the same aircraft that had been banned by BIA authorities.
Similarly, the state prosecutor referred to Central Criminal Investigations two complaints lodged by Public Works and Transport Minister Najib Mikati against the New TV station for holding him responsible for the crash in news bulletins.
Addoum instructed that the complaints be included in investigations into "violations to administrative systems" at the BIA civil aviation directorate-general.
As for recent developments in the Al-Madina Bank case, Assistant State Prosecutor Rabia Ammash Qaddoura will interrogate the bank's executive secretary Rana Qoleilat on Tuesday. ? With AFP
Copyright?Daily Star
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Gebran Tueni: Only in Lebanon Are Accusations of Bribery, Corruption Ignored
The entire world was shaken by the lists of officials bribed by Saddam Hussein's ousted regime and France and Jordan, among others, have begun judicial proceedings against the suspected recipients of bribes including free oil coupons, Gebran Tueni noted Thursday.
Only in Lebanon would an accused - whether guilty or innocent - sleep with no remorse regardless of charges of embezzlement, money laundering, illegal financial transactions or Saddam's bribes, which overnight turned their recipients into millionaires, An Nahar's general manager wrote in his weekly column.
Tueni boldly recalled that President Lahoud's son had been implicated in the scandal unveiled in Baghdad by Iraq's Governing Council. "In any other country, if a president's son, an MP or a public figure had been put on such a list, the judiciary would have risen and the individual would have acted to prove his innocence. But not in Lebanon," Tueni remarked sarcastically.
Only one of the alleged recipients of bribes, former MP Najah Wakim, has denied the charges, drawing a retort from the publisher of Iraq's Al-Mada newspaper who said the list was "real and official" and pledged to confront in court those seeking to discredit the disclosure.
Tueni asked why the Lebanese judiciary had not acted until now, adding that the allegations were damaging to Lebanon in the run-up to municipal elections, presidential elections and finally general elections next year.
"Unless the guardians of this state of institutions and the rule of the law feel that these are unimportant issues and they do not owe any explanation to the public opinion," he said.
Separately, Tueni chastised the government for allowing Hizbullah to act as the only player in the festivities marking the return of Lebanese prisoners from Israeli jails.
He questioned why other groups, such as the Communist Party, a key contributor to the resistance whose activists were among the bodies repatriated in last week's swap, were excluded from the official reception.
"We had hoped that Hizbullah would not kidnap the event, but unfortunately it did," Tueni wrote. "While observing the reception, we felt as though we were in Hizbullah-land or the Republic of Hizbullah."
Tueni congratulated the Lebanese for the swap, but recalled with anger that Lebanese released from Syrian jails were greeted by "military personnel that whisked them to further detention" in contrast with the heroes' welcome afforded to those returning from Israeli prisons.
Click here for the full text of Tueni's editorial
Beirut, Updated 05 Feb 04, 19:13
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>> IRAQ MONEY FLOWS 3...
Vote of confidence in Iraq's economy
Despite political unrest, nation's financial system appears to be holding firm
By Stephen J. Glain, Globe Staff, 2/6/2004
WASHINGTON -- With anxiety growing as Iraq hurtles toward self rule, the country's fledgling financial system is proving itself surprisingly resilient, and foreign investors remain eager for a stake in the war-torn nation. The US decision to transfer sovereignty over Iraq to a local government by July 1, sooner than occupation officials had expected a few months ago, has triggered fears of a political vacuum that could destabilize the country. But Iraq's currency, the dinar, has held steady against the dollar, and foreign firms appear undaunted by the country's vast political risk and enormous unpaid debt.
The advent of foreign banks in Iraq, signaled this week by the Iraqi central bank's selection of three banks eligible to open branches in Baghdad, should help alleviate a serious capital crunch, US officials say. The three banks -- HSBC Group, Standard Chartered Bank, and the National Bank of Kuwait -- are the first to be eligible for licenses to provide a full range of financial services in the country.
"Any economy goes nowhere without a banking sector, so that's the first place to invest your money," said Bill Barron, managing director, global head of equity research at Deutsche Asset Management Ltd. "HSBC and Standard Chartered have the expertise and the Middle Eastern network, so it's no surprise they got in. I'm surprised there were no US banks, but it's only a matter of time before Citibank and the others plant their flags there."
Iraq is engulfed in a political clash between the US-led coalition running the occupation and the country's powerful Shiite elite over how to select the country's first sovereign government since the fall of Saddam Hussein. While the United States favors a complex series of caucuses, the majority Shiites prefer direct elections -- a process that would give them greater influence over the character and policies of the new administration. Tensions surrounding the negotiations and an increase in sectarian and ethnic unrest have raised concerns that the abbreviated transition could end in a violent power struggle.
Despite such fears, the Iraqi people -- by not selling dinars for dollars, the currency of choice in uncertain times -- are casting an implicit vote of confidence in the future. A team of US Treasury and Iraqi banking officials in Baghdad last summer hammered out an ambitious overhaul of the country's financial system that appears to be holding firm. They established an independent central bank, a currency exchange that replaced Iraq's old notes, a foreign investment law that allows non-Iraqis to own 100 percent of most companies and banks, tax codes for corporations and individuals, and customs duties.
The stable dinar is one of the coalition's success stories and a badly needed attraction for foreign investors. Since Baghdad fell, the dinar has actually strengthened, from 1,200 to the dollar to just 900 last month before easing back to 1,200. This week, the Iraqi central bank announced it would remove interest rate controls, a sign of growing confidence in the economy's ability to evolve without government intervention.
"Overall, the accelerated schedule has had a positive impact," said John Taylor, the US Treasury Department's undersecretary for international affairs.
There won't be enough time, Taylor said, to tackle the most politically challenging of Iraq's economic reforms: the dismantling of price supports on food and energy products. Under Hussein, generous subsidies on everything from bread to university educations helped the regime keep Iraq's sometimes restive population in line; removing subsidies prior to the handover could prompt a destabilizing round of inflation, say economists.
When US Treasury officials arrived in Baghdad last year, they were issued a World Bank report on the liberalization of 24 ex-Soviet economies that concluded the faster a command economy was unburdened of its subsidies, the less painful would be the recession that follows. Largely for political reasons, both US and Iraqi officials decided to keep the most sensitive of price supports in place.
"From an economist's point of view, you hope to move quickly" against price supports, said Peter McPherson, president of Michigan State University and the leader of the US Treasury team in Baghdad. "But there are trade-offs. I understand the pressure they're under."
Stephen J. Glain can be reached at glain@globe.com.
? Copyright 2004 Globe Newspaper Company.
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Weapons of Mass Hysteria
If anything, the war was about 100,000 corpses too late.
The United States has lost less than 350 American dead in actual combat in Iraq, deposed the worst tyrant on the planet, and offered the first real hope of a humane government in the recent history of the Middle East -- and is being roundly condemned rather than praised for one of the most remarkable occurrences of our age. Yet a careful postbellum anatomy of the recent WMD controversy makes the original case for the war stronger rather weaker.
1. A Weapon of Mass Destruction. There were four unique factors in the calculus involving Saddam Hussein and his so-called weapons of mass destruction: (1) Saddam Hussein had petrodollars to buy such strategic weapons; (2) He had acquired and stockpiled such arms and used them in war against Iran and in peace against his own people; (3) He had a long history of aggression against the United States -- from Gulf War I to trying to assassinate an American president; and (4) His Baathist police state had a systematic policy of hiding such weapons, from both the United States postwar intelligence gatherers and the U.N. inspectors.
Therefore as long as Saddam Hussein was in power it mattered little what the professed status of his chemical and biological arsenal was at any particular time, since our only certain knowledge was that he had a proven desire and ability to purchase, recreate, and use them on any given day -- and that day would be mostly unknown to everyone outside of Iraq. He may have had thousands of tons of weapons in 1980, hundreds of tons in 1990, and tens of tons in 1995, almost zero in 2003 -- and yet once again perhaps hundreds in 2005 and thousands again in 2010. Thus the clich? that Saddam Hussein himself was the weapon of mass destruction was in fact entirely accurate.
Throughout this war there has been consistently fuzzy nomenclature that reflects mistaken logic: WMDs are supposedly the problem, rather than the tyrannical regimes that stockpile them -- as if Tony Blair's nuclear arsenal threatens world peace; we are warring against the method of "terror" rather than states that promote or allow it -- as if the Cold War was a struggle against SAM-6's or KGB-like tactics; September 11 had nothing to do with the Iraqi war, as if after 3,000 Americans were butchered through unconventional and terrorist tactics the margin of tolerance against Middle East tyrannical regimes that seek the weapons of such a trade does not diminish radically.
2. Casus Belli. The threat of WMDs may have been the centerpiece of the administration's arguments to go to war, but for most of us, there were plenty of other -- and far more important reasons -- for prompt action now.
Let us for the nth time recite them: Saddam had broken the 1991 armistice agreements and after September 11 it was no longer tolerable to allow Middle East dictators to continue as rogue states and virtual belligerents. Two-thirds of Iraqi airspace were de facto controlled by the United States -- ultimately an unsustainable commitment requiring over a decade of daily vigilance, billions of dollars, and hundreds of thousands of sorties to prevent further genocide. He had defied U.N. resolutions; and he had expelled inspectors, demanding either enforcement or appeasement and subsequent humiliation of the international community.
It really was an intolerable situation that in perpetuity thousands of Kurds and Shiites were doomed on any given week that American and British planes might have been grounded. Saddam had a history of war against Kuwait, Saudi Arabia, Israel, Iran, and the United States, destroyed the ecology of the Mesopotamian wetlands, gassed his own people, and relented in his massacres only to the degree that the United States monitored him constantly. Should we continue with the shameful litany?
Well, in addition, in northern Iraq al Qaedists were battling the Kurds. Old-line terrorists like Abu Abbas and Abu Nidal were at home in Baghdad. Husseinite bounties subsidized suicide-murdering in Israel. A number of accounts had cited relationships between al Qaeda and Baathist intelligence. Iraq, in fact, was already at a critical mass. Faced with a brutal unending U.N. embargo and the loss of its airspace, it was descending into a badland like Afghanistan. The amorality is not that we took him out, but that after 1991 we waited about 100,000 corpses too long.
3. "Intelligence" is rarely intelligent. It is regrettable that two successive administrations apparently (inasmuch as the complete truth really does await translations of the Iraqi archives, a complete inquiry of former Baathists, and assurances from Syria) have had no accurate idea of the extent, or lack thereof, of the Iraqi WMD arsenal. But incomplete or faulty intelligence -- both hysterical overreactions or laxity and naivet? -- is not rare when nations go to war.
We were fooled by Japan in 1941 and had no idea that its enormous fleet was a few hundred miles off Hawaii. The Soviet absorption of Eastern Europe caught utopians off guard in 1945-6. Everyone underestimated Mao's resilience ("Who lost China?"). MacArthur's "infiltrators" across the Yalu River turned out to be several Chinese armies. We know only now that the Soviets cheated on several major arms agreements -- and had WMD arsenals far beyond what was disclosed. Its nuclear accidents and WMD catastrophes are still clouded in mysteries. Remember the Missile Gap of the 1960 election that helped to elect John Kennedy? Yet Cuba, we now learn, had more ready nukes than even Curtis LeMay imagined. The British surely had no warning about the Falklands invasion. An American ambassador gave the wrong message to Saddam Hussein in summer 1990, precisely because the CIA had no clue that Saddam Hussein was gearing up to invade Kuwait. Libya and Iran were further along with their nuclear programs than the CIA dared to imagine. Ditto North Korea. Who knew that Pakistan has been running a nuclear clearinghouse? The point is not to excuse faulty intelligence, but rather to understand that knowing exactly what the enemy is up to is difficult and yet almost never acknowledged to be so.
4. The wages of bluffing. If present stockpiles of WMDs are discovered not to have been present in Iraq in spring 2003 or to have been transported to Syria, it is probably because of deception inside Iraq itself. Either Iraqi weapons procurers and scientists may have misled an unhinged Saddam Hussein or Saddam knew he had no arsenal and yet deliberately misled the U.N. In other words, if the world decides that such a monster cannot have such weapons (as the U.N., in fact, did in several resolutions), and such a monster chooses for whatever bizarre reasons to avoid disclosing information about them, then either one acts on logical inferences or does not -- and thus accepts the wages of such defiance.
I am sorry that the United States has established a hair-trigger reputation in matters of deadly agents of mass destruction -- but apparently other rogue nations now believe that the burden of proof is no longer on us to establish that they have them, but rather on them to ensure the world that they do not. And that is not necessarily a bad thing if we ponder that the lives of thousands may hang in the balance.
5. WMD deterrence. So it turns out that the emphasis on weapons of mass destruction in Iraq, and the subsequent effort to take out Saddam Hussein have had a powerful effect on such arsenals far beyond Baghdad. Without the removal of the Baathists, Libya would never have confessed to its nuclear roguery. Without the recent war, Iran would never have professed a desire to follow international protocols. Without the recent conflict, Pakistan would never have investigated its own outlaw scientists.
Whether we like it or not, the precedent that the United Sates might act decisively against regimes that were both suspected of pursuing WMD acquisition and doing nothing to allay those fears, has had a powerful prophylactic effect in the neighborhood. Only in this Orwellian election year, would candidates for the presidency decry that the war had nothing to do with the dilemma of WMDs -- even as Libya, Iran, and Pakistan by their very actions apparently disagreed.
6. Cost-benefit analysis. A decade-long U.N. trade embargo, coupled with occasional U.S. strikes (the 1999 Desert Fox operation may have killed 4,000 Iraqis) probably led to as much damage and death as the recent war -- but without either freeing the Iraq people or finally ascertaining the exact nature of Saddam's chemical, biological, and nuclear arsenal. Once Saddam Hussein took Iraq down the path of tyranny, invasion, and WMD acquisition, then it was not a question of stopping him without losses, but simply finding the most economical way to rid the world of his regime at the least cost in lives. When reckoned over a 30-year era, the recent war will have seemed humane in comparison to what transpired between 1975 and 2003.
Again, I am sorry that David Kay's preliminary findings suggest an intelligence lapse; but that sorrow is mitigated by the recognition that there are tens of thousands of rotting skulls in the deserts of Iraq -- the work of a psychopath and his sons, who, thanks to the belated efforts of the United States, have now been put permanently out of the business of mass death.
7. WMD paranoia. While conventional arsenals kill far more than chemical or biological weapons, the latter hold a particular horror for us all given the stealthy nature of microbes and gas, and their theoretical ability to kill us en masse without the scream of an artillery shell or burp of a machine gun. Illogical perhaps, but true nonetheless is our paranoia about these horrific weapons. My grandfather who was mustard gassed in the Argonne, coughed out horrific tales of yellow clouds; rarely artillery bursts that killed most of his friends. The Chinese demand reparations from Japan over the brutality of Unit 731 in a way they do not even concerning the Rape of Nanking. A few grains of Ricin empty the Capitol in a way a random artillery shell or abandoned M-16 would not.
Unconventional weapons, in other words, by their very nature of stealth, horrific death, and the failure of conventional military deterrence scare people -- especially in the present context of asymmetrical warfare where rogue states and terrorist cells seek them precisely to nullify Western military advantage. This is not to excuse WMD paranoia, but only to suggest, for example, that Colin Powell's excursus to the U.N. might in retrospect been inaccurate in all its details, but nevertheless a well-meaning effort to ensure the United States did not experience something like the cloud in Kurdistan -- or unconventional and unpredictable acts analogous to September 11.
8. History's verdict. The morality of a war, perhaps tragically so, is usually judged by the way it was waged and its aftermath. Thus while historians quibble about whether Roosevelt "knew" about December 7, most care little because they accept Japanese aggression and the ultimate success and morality of our efforts to defeat it. Conservatives harp that President Clinton neither went to the U.N. nor the U.S. Senate to bomb Serbia; but their objections to his preemption rightly fell on deaf ears because the real moral question was rather to stop genocide and end the reign of a mass murderer. Most of us did not care a whit about Monica, but appreciated deeply the Clinton effort (way too late) to stop the slaughter in the Balkans and finally to show some displeasure with Saddam Hussein.
This is not an argument to ignore concerns over dissimulation, but rather to appreciate that when confronted with an ogre the moral issue sometimes is ending his reign and leaving millions safe and free in his wake, rather than quibbling over the legal basis to do so.
In contrast, we talk still about an exaggerated Gulf of Tonkin resolution precisely because the ensuing war became morally questionable, was often waged nonsensically, and was ultimately lost -- resulting in millions of dead in vain, refugees, and internees. Had we acted wisely in Vietnam, created a South Korea-like state within three years, and today be witnessing a Saigon similar to Seoul, the Gulf of Tonkin legislation would be seen instead as an irrelevant if improper effort to prompt needed action to save millions from Communism rather than the disingenuous catalyst that led to quagmire.
Again, this is not to suggest the ends justify the means, but rather to acknowledge that there are always deeper reasons to go to war than what lawyers, diplomats, and politicians profess. Those underlying factors are ultimately judged as moral or immoral by history's unforgiving logic of how, and for what reason, the war was waged -- and what were its ultimate results. We live in a sick, sick West if we investigate Mr. Bush's and Mr. Blair's courageous efforts to end Iraqi fascism, while ignoring the thousands of Europeans and multinational corporations who profited from his reign of terror.
Postmortem. If the United States went to war with Iraq only because of the threat of WMDs; if the mass murdering of Saddam Hussein was found on examination to be highly exaggerated; if we had some secret plan for stealing the oil of Iraq, if Saddam Hussein posed no future threat to the United States or its allies; if the war resulted in a worse future for Iraq, the United States, and the surrounding Middle East; and if the administration deliberately constructed false intelligence evidence to advance such an unnecessary war that resulted in misery rather than hope, then an apology is needed now. But so far, that has simply not been the case.
The real outrage is instead that at a time of one of most important developments of the last half-century, when this country is waging a war to the death against radical Islamic fascism and attempting to bring democracy to an autocratic wasteland, we hear instead daily about some mythical rogue CIA agent who supposedly faked evidence, Martha Stewart's courtroom shoes, Michael Jackson's purported perversion, and Scott Peterson's most recent alibi. Amazing.
http://www.nationalreview.com/hanson/hanson200402060837.asp
>> IRAN WATCH...
Iran Acquires Cruise Missile
From DEBKA-Net-Weekly 143 Jan 30, 2003
February 6, 2004, 8:31 PM (GMT+02:00)
Iran`s threat to Gulf shipping
Iran's Islamic Revolutionary regime last month marked the 25th anniversary of its victory over the Shah by launching a sophisticated missile dubbed Raad and its accompanying advanced radar system designated DM-3b. Minister of defense Rear Admiral Ali Shamkhani led the ceremony in full naval dress uniform.
The official handout described the radar system as navigating and guiding the combatant missile in its final stage. The medium-range Raad missile is equipped with a self-guidance device. Shamkhani enthused: the two systems manufactured in Iran's state aviation industry further enhance the capabilities of Iranian armed forces.
What the handout did not reveal was that Raad is no ordinary coastal or shipboard projectile but a cruise missile, capable of halting Personal Gulf shipping by blockading the Hormuz Strait. It can also choke off incoming and outgoing sea traffic via the Shatt al-Arb, Iraq's only exit point for its oil exports and entrance for its vital imports.
DEBKA-Net-Weekly 's Gulf sources report launching bases for the new missiles are going up at four places on Iran's Gulf coast: the northern end at Bandar a-Khomeini opposite the mouth of the Shatt al Arb and facing Kuwait and Bahrain, at Bushehr, site of its nuclear reactor, at the big Bandar Abbas naval base and Revolutionary Guards headquarters, and at Bandar e-Lengeh west of Qeshm Island.
From these installations, Iranian missiles will cover the tanker and merchant ship lanes leading into the Persian Gulf from the Indian Ocean through the Gulf of Aden.
A fifth launching base will be located on the small highly-strategic island of Great Tumb situated just north of the Hormuz Strait at the mouth of the Gulf.
According to our military experts, the locations of the new Raad missile bases betray both aggressive intent and determination to defend Iran's Gulf shore from assault by warships or hostile marine landings. Iran's military command appears to be preparing the country's national defenses for an anticipated American attack in the course of 2004 or early 2005.
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Russia Sells Iran AVLIS System for Advanced Uranium Enrichment
DEBKAfile Exclusive Report
August 28, 2003, 9:31 AM (GMT+02:00)
The Vienna-based International Atomic Energy Agency - IAEA - put out a disturbing report this week confirming earlier DEBKAfile revelations that traces of uranium enrichment activity were found in samples at Natanz nuclear facility in Iran, 290 km south of Tehran, evidence that Iran was in the process of building a nuclear arsenal.
Agency officials admit that Tehran is in clear non-compliance with its nuclear safeguard obligations and may even have laid itself open to a complaint to the UN Security Council and the threat of sanctions.
In issue Number 120, published on August 8, DEBKA-Net-Weekly's military sources reported exclusively that in the second week of July Russia secretly delivered the components of the AVLIS (atomic vapor laser isotope separator) system aboard unmarked military transports.
This accelerated and environmentally clean process of uranium enrichment was first developed at the Lawrence Livermore National Laboratory, California, for the US Department of Energy in the 1970s. In 1998, the Iranians were reported working on their own AVLIS. The version supplied by Russian is apparently based on more advanced technology. While the US energy department suspended AVLIS development in 1998, the Russians appear to have stepped up production, counting on an expanding future exports to governments bent on acquiring nuclear weapons, such as Saddam Hussein's Iraq, Iran, Libya, Syria, North Korea, India and Pakistan.
The Russian components came with Russian technicians for assembling the apparatus and teaching Iranian nuclear technicians how to use it.
According to the information obtained by DEBKA-Net-Weekly , AVLIS has been installed at two of Iran's uranium enrichment facilities, Natanz and Moallen Kalayeh. The latter is Iran's most secluded subterranean nuclear plant, buried under the Albroz Mountains 40 km north of Tehran. In its tall tunnels, Iran carries out its most secret tests.
Moallen Kalayeh used to be a small rural village. Today it is a closed township populated by hundreds of scientists and technicians. It is also one of the most heavily protected places in the country. The Iranians are putting the new equipment to work at top speed at the peak of their effort to build up a stock of enriched uranium sufficient for a nuclear device before September 8, when the Nuclear Atomic Energy Agency's board convenes in Vienna to discuss the Iran report.
Tehran has also been racing against the clock to forestall decisions at the six-nation talks on North Korea's nuclear program that began in Beijing August 27, before they impede Iran's related progress towards a nuclear weapon. Attending the talks are the US, the two Koreas, Japan, Russia and China, the host.
According to our Moscow sources, Russian military circles as certain that without that AVLIS would not have been consigned to Iran without the okay of President Vladimir Putin. He would have seen the delivery as a means of getting round his promise to President George W. Bush not to send Iran spent nuclear rods to fuel the Bushehr nuclear reactor and a way of compensating Iran for this letdown.
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>> TERROR FILES CONTINUED...
Video shows al-Qaida attack preparation
NEW YORK, Feb. 6 (UPI) -- ABC News says it discovered video footage of al-Qaida terrorists preparing for, and executing, an attack has been discovered on the Internet .
The six 15-minute videos appear on the Web site of the Islamic Center for Studies and Research and implicate the men responsible for a Nov. 8, 2003, suicide bomb attack on a residential compound in Riyadh, Saudi Arabia, that killed 17 people.
The tape shows men training in military camouflage uniforms with a stockpile of advanced weapons.
Also shown are building plans and surveillance photos of the target and the location of security guards, who were the first to be killed in the attack.
The tape also shows a bomb being built in a training camp in Saudi Arabia. Next to the device is a radio transmitter, which indicates how the bomb was detonated.
The only men whose faces are shown are two individuals who are described as the eventual suicide bombers.
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Tape Shows Purported Saudi Militant Plot
By TAREK AL-ISSAWI
ASSOCIATED PRESS
DUBAI, United Arab Emirates (AP) - A video purported to be from Osama bin Laden's al-Qaida terror network shows Saudi militants planning, training for and carrying out what it claimed was the Nov. 8 bombing of a housing compound for foreigners in the Saudi capital that killed 17 people.
The 90-minute video, viewed on an Islamic Web site by The Associated Press in Dubai, shows a vehicle driving up to what it says is the Muhaya compound in Riyadh before loud explosions and gunfire erupt. That portion is blurry and badly lit, and the building is not visible.
It was not possible to verify the video's authenticity. However, it uses language similar to past statements attributed to al-Qaida, and the training scenes are like those seen in videos of al-Qaida camps in Afghanistan. The Web site that showed the video has released other seemingly credible al-Qaida statements.
In October, an al-Qaida-style recording surfaced on the Internet that included what was described as audio of militants launching May 12 attacks on Western housing compounds in Riyadh that killed 26 people and the nine attackers. Bits of video also were accessible with it, but the only clip allegedly of the assault itself showed a black screen with text identifying gunshot noises as a recording of the start of the attack.
The new video contains excerpts from several of bin Laden's previously broadcast comments, as well as the words of other al-Qaida members and Khattab, a Saudi-born Chechen military leader who was killed by Russian forces in 2002.
Militants are seen training with rocket-propelled grenades and surface-to-air missiles, and in hand-to-hand combat.
The video also showed training courses on bomb-making and displayed detonators, timers and wires. It calls the training camp al-Battar and says it is on the Arabian peninsula.
American and Saudi officials blamed al-Qaida for the attack on the Muhaya compound. Although Arabs and other Muslims were living in the compound, the video claimed it housed members of the CIA as well as other Americans. No Americans were killed in the attack.
"If we wanted to destroy the country, then attacking institutions beneficial to the people is much easier than killing a single American," said a man who identifies himself as Nasser bin Hamed al-Harbi, allegedly one of the two suicide bombers.
The video showed men purportedly carrying out reconnaissance of the compound, and said the attack was rehearsed repeatedly and computer-simulated.
Some of the footage clearly came from a handheld camera. Two voices could be heard praying as the vehicle moved, moments before the sound of an explosion.
Some members of the team that attacked the compound were believed to have escaped.
In one scene on the video, more than 10 men are shown, most of them covering their faces with ski masks or Arab headscarves, carrying RPGs, semiautomatic weapons, grenades and AK-47 semiautomatic rifles. The video also showed the two purported suicide bombers.
Some militants were shown spraying the vehicle dark blue with light blue stripes along the sides. Saudi authorities said the vehicle used in the attack had been painted to resemble a Saudi security vehicle, with a dark blue body and light blue markings.
"The mujahedeen target only the crusaders. As for the infidel leaders, their day will come, God willing," a masked man identified in a subtitle as Abdul Aziz al-Moqrin said on the video, holding an assault rifle.
Al-Moqrin is on a Saudi list of most-wanted terror suspects. He has been identified in newspaper reports as the mastermind of the attack.
Saudi Arabia has been under pressure to show it is more active in fighting terrorism since the Sept. 11, 2001, attacks, in which 15 of the 19 hijackers were Saudi citizens.
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>> PA WATCH...
Something important is happening in the PA
By Nazir Majally
Something important is happening on the Palestinian street, especially among the second and third generation of its leadership, as relates to Israel and the conflict and the vision of the future of the Palestinian Arab people. The change appears to be genuine, and also strategic.
There's no doubt that those in Israel who ought to know what is happening there are aware of this. But for some reason, this knowledge is not being expressed in a correspondingly practical policy. And as usual, the Palestinian side is not making an effort to expose these important developments to the public.
Imad Shakur, one of the Palestinian Authority chairman's many advisers, described the prevailing attitude in the territories in a courageous article published in the mass-circulation Arab newspaper A-Sharq al-Awsat last week. In it, he calls not just for a halt to the intifada, but also for the dismantling of all the armed organizations, including the Fatah Tanzim. He even expresses contempt for the term "the blessed intifada" and severely criticizes the leadership that refuses to recognize its mistakes and is not internalizing the changes in the world and the region. Shakur reminds his readers of the fate of President Saddam Hussein, who promised to wage a victorious war against the United States. He argues that a genuine and dignified solution to the Palestinian matter can only come from a drastic change in the patterns of thinking and governing to move toward a real democratic and pluralistic system.
Anyone who knows the Palestinian leadership from up close, including Arafat's inner circle, knows that Shakur's article is not expressing solely his opinion. As a matter of fact, it was reprinted in full in the PA's main newspaper, Al Ayam, which is published in Ramallah and edited by Akram Haniya, one of Arafat's closest advisers; in the competing Al Quds, published in Jerusalem; and also in the Jordanian newspaper A-Ra'i and became the talk of the day there, too. It is also known that the article was seen by Arafat and Ahmed Qureia (Abu Ala) prior to its publication and they did not prevent it from being published.
Clearly, many Palestinians, including some of the leaders, think the same way, and this is not such a recent development. It's known that the first Palestinian prime minister, Mahmoud Abbas (Abu Mazen), opposed the intifada from the start and sought to stop it. Others have referred to it as a death blow to the Palestinian people. And some spoke, even then, of the foolish mistake at Camp David when the Palestinians rejected the Clinton-Barak proposal. At a later stage, they began to organize in order to promote these ideas.
These people did not concentrate solely on today's diplomatic-security situation. They also thought about the future of the Palestinian people. At their meetings, which were held openly, they talked not just about reforms but also about how to establish a special Arab state in democratic and pluralistic Palestine, and about a free and thriving economy. They cited Japan and Germany, which were compelled to dismantle their armies following the surrender in World War II, and how they have since become economic and technological superpowers. They talked about Israel in terms of cooperation instead of hostility, in terms of envy instead of hatred.
But every time they decided to openly publicize their positions, something happened that caused them to postpone the publication to a later time. The first time it was the siege on Arafat. The second time it was the Seder night terror attack in Netanya, to which Israel responded with a reoccupation of all the Palestinian cities. The third time, it was another terror attack and another occupation. And the idea was quashed. Until now, when it has been brought out in the open.
How Israel relates to this development is important. Will it understand and respond with encouraging initiatives - or will Israel ignore it?
The writer is a journalist and Israeli affairs analyst for the Arab media, including A-Sharq al-Awsat newspaper, Abu Dhabi Television and Al-Arabia Television.
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>> TERROR FILES...ATTA ROOMMATE...
HAMBURGER TERRORPROZESS
Im Zweifel f?r Mzoudi
Von Matthias Gebauer
Nach monatelangen Querelen ist der im zweiten Hamburger Terrorprozess angeklagte Abdelghani Mzoudi ein freier Mann - aus Mangel an Beweisen gegen den mutma?lichen Helfer der Todes-Piloten. Das Gericht lie? jedoch keinen Zweifel daran, dass dies keinesfalls Mzoudis Unschuld bedeute.
DDP
Abdelghani Mzoudi: Schweigen nach dem Freispruch
Hamburg - Es war Punkt 11.37 Uhr, da war der mutma?liche Terror-Helfer Abdelghani Mzoudi ein freier Mann. Viel gegens?tzlicher allerdings h?tten die Reaktionen in den Minuten nach dem spektakul?ren Freispruch kaum sein k?nnen. "F?r Sie, Herr Mzoudi, mag dieser Tag ein Grund zur Freude sein", sagte der Vorsitzende Richter Klaus R?hle gewohnt k?hl, "doch ein Grund zum Jubeln f?r die Justiz ist es keinesfalls." Ganz anders sah das freilich der Verteidiger des jungen Marokkaners. Mit breitem Grinsen sprach der kurz nach dem Richter von einem "gro?artigen Tag f?r die Justiz", die sich nicht als willf?hriger Vollstrecker der internationalen Terrorbek?mpfung habe missbrauchen lassen.
Die Wahrheit liegt wohl irgendwo in der Mitte. Die Richter machten in ihrer Urteilsbegr?ndung deutlich, dass sie nach dem Rechtsgrundsatz "im Zweifel f?r den Angeklagten" entschieden hatten. F?r eine Verurteilung wegen Beihilfe bei den Attacken vom 11. September 2001 und der Mitgliedschaft in der Terror-Gruppe um die Todespiloten Atta und Co. "reichte es einfach nicht", wiederholte Richter R?hle mehrmals. Zweifelsohne aber bleibt nach dem Freispruch des Angeklagten nicht nur f?r das Gericht ein bitterer Beigeschmack, denn sie sind nach R?hles Worten "von der Unschuld des Angeklagten keineswegs ?berzeugt".
Revision ist bereits eingereicht
F?r Bundesanwalt Walter Hemberger ist der Angeklagte noch immer ein "gef?hrlicher Terrorist", der an den Anschl?gen in den USA beteiligt war. Aus diesem Grund wolle er umgehend eine Revision gegen den Freispruch pr?fen. Die Nebenkl?ger im Prozess lie?en sich nicht so lange Zeit. Keine zwei Minuten nach dem Urteil hatte der Richter bereits per Fax den Revisionsantrag des Berliner Rechtsanwalts Andreas Schulz auf seinem Schreibtisch.
Doch neben all den bewertenden Aussagen reichte schon die Urteilsbegr?ndung des Richters aus, um den komplizierten Ablauf des Prozesses bis hin zum Freispruch zu verstehen. Punkt f?r Punkt schilderte Richter R?hle, warum der weltweit beachtete Prozess scheiterte. Letztlich habe die mehr als 30-t?gige Gerichtsverhandlung mit mehr als 50 Zeugen und Hunderten von Beweisdokumenten keine ausreichenden Beweise f?r den Vorwurf ergeben, dass Mzoudi die Anschl?ge mit vorbereitete, so R?hle. "Nur sie wissen, was Atta und Co. ihnen von den t?dlichen Pl?nen erz?hlt haben", sagte R?hle zu Mzoudi. Doch auch wenn die Anschl?ge eines der "schrecklichsten Verbrechen in der Geschichte der Menschheit seien", k?nne es in einem Rechtsstaat "nur aus Gr?nden der S?hne" keine Verurteilung geben.
Pr?gel f?r die Schlapph?te
AP
Richter Klaus R?hle: Freispruch trotz Belastungsmaterial
Danach schilderte R?hle die vielen Zweifel, die das Gericht letztlich zum Freispruch f?hrten. Von Beginn an seien die Beweise der Ankl?ger d?nn gewesen. Lediglich einige Geld?berweisungen an die sp?teren Attent?ter und die Erledigung kleiner Gefallen konnten die Fahnder gegen Mzoudi vorbringen. Ebenso erwiesen sich Zeugenaussagen, die Mzoudi zuerst als fanatischen Eiferer gegen das Weltjudentum erscheinen lie?en, am Ende ?bertrieben und wenig ?berzeugend. "Die Planung des 11. Septembers war eine Geheimaktion sondergleichen", f?hrte R?hle aus. Nach Meinung des Gerichts habe Mzoudi deshalb auch ebenso gut nichts von den Pl?nen seiner Freunde wissen k?nnen, obwohl diese zumindest die Endphase der Anschlagsplanung in der gemeinsamen Wohnung koordinierten.
Doch nicht nur die Ankl?ger bekamen zu Prozess-Ende Pr?gel. Richter R?hle widmete einen ganzen Teil seines Vortrags der Arbeit der internationalen Geheimdienste. Die US-Dienste aber auch die deutschen Sicherheitsbeh?rden hatten immer wieder wichtige Beweise und potentielle Zeugen wie den Drahtzieher Ramzi Binalshibh vom Gericht ferngehalten - weil dies entweder die nationale Sicherheit der USA oder auf deutscher Seite die Kooperation mit den US-Beh?rden gef?hrde. R?hle zog am Ende seiner pers?nlichen Erfahrung mit den Diensten eine ern?chterte Bilanz: "Wir m?ssen es hinnehmen, dass der Angeklagte freigesprochen wird, obwohl an verschiedensten Stellen ganz offenbar belastendes Material vorliegt".
Ein Richter zwischen vielen St?hlen
Bei der Urteilsverk?ndung war Klaus R?hle der gesamte Druck anzumerken, der auf einem Richter liegt, der gegen einen potentiellen Beteiligten des Massenmords vom 11. Septembers verhandelt. Einem Richter, von dem viele nur ein hartes Urteil verlangten, der aber selber durch und durch Jurist ist und Fakten braucht. Immer wieder verteidigte er sich und seinen Senat. "Wir sind in dem Verfahren an die Grenzen der Wahrheitsfindung gesto?en", sagte er in Bezug auf nicht vorgelegtes Beweismaterial, "doch wir haben es uns nicht leicht gemacht".
Fast geriet die Urteilsbegr?ndung des Senats zu einer Entschuldigungsrede. "Manche Menschen, vor allem in den USA, werden dieses Urteil mit Fassungslosigkeit oder gar Wut aufnehmen", gestand R?hle ein, "andere werden das Urteils als Niederlage gegen den internationalen Terrorismus sehen." R?hle betonte, dass Gericht sei besonders von dem Auftritt der Angeh?rigen der Opfer und ihrem Leid beeindruckt gewesen sei. "Der Schrecken des Terrors ist nicht gebannt", sagte der Richter. In dem Hamburger Verfahren aber sei es ausschlie?lich um die Schuld des Angeklagten gegangen und nicht um ein "Fanal gegen den Terror".
Die offene Schuldfrage
Der einzige, der am Donnerstag eisern schwieg, war der Ex-Angeklagte selber. Beim Freispruch im Gerichtssaal zeigte Abdelghani Mzoudi kaum eine Regung und starrte auf den Boden. Erst als ihm sein Verteidiger ermuntert auf die Schultern klopfte, grinste er kurz. Danach verschwand er wie gewohnt in den Gerichtsg?ngen. Auch auf der Pressekonferenz sagte er nichts, weder zu seinem Fall noch zu seinem Befinden. "Er ist einfach ein sehr zur?ck haltender Mensch", sagte sein Verteidiger. Auf die Frage, ob er seinen Mandanten auch pers?nlich f?r unschuldig halte, schwieg auch er. Trotz des Freispruchs vom Donnerstag ist diese Frage genauso offen wie zu Prozessbeginn.
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MZOUDI-FREISPRUCH
Bundesanwaltschaft will Urteil anfechten
Das Urteil im zweiten Hamburger Terrorprozess ist gefallen. Das Gericht befand, Abdelghani Mzoudi k?nne keine Beteiligung an den Anschl?gen vom 11. September nachgewiesen werden, und sprach den Marokkaner frei. Die Bundesanwaltschaft will jetzt vor den Bundesgerichtshof in Karlsruhe ziehen.
Terrorprozess: Freispruch f?r Mzoudi
AP
Grund zur Freude: Abdelghani Mzoudi
Hamburg - Die Anklage hatte die H?chststrafe von 15 Jahren Gef?ngnis gefordert, die Verteidigung Freispruch beantragt. Die meisten Prozessbeobachter hatten den Freispruch erwartet. Das Hamburger Oberlandesgericht hatte im Dezember ?berraschend den Haftbefehl gegen Mzoudi aufgehoben, weil es eine vom Bundeskriminalamt ?bermittelte anonyme Zeugenaussage als entlastend wertete.
Die Bundesanwaltschaft will jetzt Revision einlegen. "Wir sind davon ?berzeugt, dass sich der Angeklagte der Mitgliedschaft in einer terroristischen Vereinigung und der Beihilfe zum Mord schuldig gemacht hat", sagte Bundesanwalt Walter Hemberger nach den Urteil. Man wolle allerdings zun?chst die schriftliche Urteilsbegr?ndung des Gerichts abwarten, sagte Hemberger.
Unmittelbar vor der Urteilsverk?ndung hatte das Gericht einen noch am Morgen eingebrachten Antrag der Nebenklage auf Wiedereintritt in die Beweisaufnahme abgelehnt. Nebenkl?ger-Anwalt Andreas Schulz hatte den Vorsto? damit begr?ndet, er gehe davon aus, dass es in der US-Regierung eine ge?nderte Meinung ?ber die Freigabe von Vernehmungsakten ?ber den wichtigen Zeugen Ramzi Binalshibh gebe. Er forderte deshalb ein erneutes Rechtshilfeersuchen an die USA. Das Gericht war dagegen der Ansicht, es gebe keine Hinweis darauf, dass die US-Beh?rden nun eher bereit seien, Geheim-Informationen herauszugeben.
Nach Ansicht der Anklage und der Nebenkl?ger war Mzoudi als Mitglied der Hamburger Terrorzelle um den Todespiloten Mohammed Atta in die Anschlagsvorbereitungen eingebunden. Die Anklage hatte die H?chststrafe von 15 Jahren Gef?ngnis gefordert, die Verteidigung Freispruch beantragt. Das Gericht hatte im Dezember ?berraschend den Haftbefehl gegen Mzoudi aufgehoben, weil es eine vom Bundeskriminalamt ?bermittelte anonyme Zeugenaussage als entlastend wertete. Das Gericht ging davon aus, dass diese Aussage von Binalshibh stammte.
An den Angeklagten gewandt, sagte der Vorsitzende Richter Klaus R?hle in der Urteilsbegr?ndung w?rtlich: "Herr Mzoudi, Sie sind freigesprochen, es ist aber kein Grund zum Jubeln." R?hle betonte, der Freispruch sei nicht erfolgt, weil das Gericht von der Unschuld ?berzeugt sei, sondern weil die Beweise gegen den Angeklagten nicht ausgereicht h?tten. Daher gelte der Grundsatz "in dubio pro reo" (im Zweifel f?r den Angeklagten).
Was Mzoudi von der Hamburger Terrorzelle tats?chlich ?ber die Anschlagsvorbereitungen f?r den 11. September gewusst habe, das wisse nur er, nicht aber das Gericht.
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REAKTIONEN
Schily ?ber Urteil entt?uscht
Der Bundesinnenminister hat sich im ZDF entt?uscht ?ber das Hamburger Urteil im zweiten Terroristenprozess ge?u?ert. Gleichzeitig k?ndigte Schily an, dass der freigesprochene Mzoudi im Visier der Sicherheitsbeh?rden bleibt.
Berlin - Bundesinnenminister Otto Schily (SPD) hat den Freispruch des Marokkaners Abdelghani Mzoudi im Hamburger Prozess um die Anschl?ge vom 11. September 2001 als entt?uschend bezeichnet.
"Es ist nat?rlich entt?uschend, dass hier ein Urteil in diese Richtung ergangen ist", sagte Schily im ZDF-"Heute Journal" am Donnerstagabend. "Ich teile die Auffassung des Generalbundesanwalts, dass durchaus gute Aussichten bestehen, das freisprechende Urteil in der Revisionsinstanz zu ver?ndern. Er m?sse jedoch zun?chst die Unabh?ngigkeit der Justiz respektieren, sagte Schily.
Der im zweiten Hamburger Terroristenprozess frei gesprochene Marokkaner Abdelghani Mzoudi bleibe aber im Visier der Sicherheitsbeh?rden k?ndigte Schily zugleich an. Es m?ssten die erforderlichen Vorkehrungen getroffen werden, um die Sicherheit der Menschen in Deutschland zu gew?hrleisten.
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IN HAMBURG UNERW?NSCHT
Innensenator will Mzoudi abschieben
Der Hamburger Innensenator Dirk Nockemann will den vom Terrorverdacht freigesprochenen Marokkaner Abdelghani Mzoudi "so schnell wie m?glich" abschieben.
Hamburg - "Ich habe die Ausl?nderbeh?rde angewiesen, die Ausweisung zu pr?fen", sagte Nockemann nach dem Urteil. Die Beh?rde solle mit Hochdruck an dem Fall arbeiten: "Es gibt keinen vorrangigeren Fall als Mzoudi", sagte der Politiker von der Partei Rechtsstaatlicher Offensive.
Sein Wunsch sei, "sofort abschieben, denn der Mann ist gef?hrlich". Der Status von Mzoudi nach dem Freispruch sei "geduldeter Ausl?nder". Nockemann sagte, die Ausl?nderbeh?rde m?sse f?r ihre Entscheidung nun auf die schriftliche Urteilsbegr?ndung warten. "Grunds?tzlich ist es m?glich, dass die Ausl?nderbeh?rde abschiebt, auch wenn das Gericht freigesprochen hat", sagte der Innensenator. Die Beh?rde m?sse pr?fen, was im Urteil ?ber ihn stehe. Die Entscheidung "kann sich ein paar Tage hinziehen", meinte er.
Nockemann sagte, der 31 Jahre alte Marokkaner sei gef?hrlich. "Er war in Afghanistan und hat eine Schie?ausbildung gemacht, weil er k?mpfen will", stellte der Politiker fest. Auf die Frage, ob Mzoudi von der Polizei nun besonders ?berwacht werde, sagte Nockemann: "Wir wissen, was die islamistische Szene tut und Mzoudi ist Teil dieser Szene".
Der konservative Politiker forderte von Bundesinnenminister Otto Schily einen Gesetzentwurf, wonach eine Ausweisung auch schon bei Terrorverdacht m?glich sein soll. Bisher hei?e es im Ausl?ndergesetz, "es m?ssen Tatsachen belegen", dass ein Ausl?nder in Terroraktivit?ten verstrickt ist, ehe er abgeschoben werden darf.
Mzoudis Anw?ltin G?l Pinar sagte dazu: "Herr Mzoudi wird l?nger hier sein als Herr Nockemann im Amt". Mzoudi soll f?r seine Zeit in der Untersuchungshaft entsch?digt werden. Die Kosten des Verfahrens zahle die Staatskasse.
Nach seinem Freispruch darf Mzoudi die Hansestadt nicht verlassen. Er m?sse im Zust?ndigkeitsbereich der Hamburger Ausl?nderbeh?rde bleiben und jederzeit erreichbar sein, sagte der Sprecher der Hamburger Innenbeh?rde, Marco Haase am Donnerstag. Mzoudi habe ein beschr?nktes Aufenthaltsrecht in Form einer Duldung.
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>> GERHARD WATCH...
Gerhard Schr?der quitte la pr?sidence du SPD
LEMONDE.FR | 06.02.04 | 18h56
Le chancelier allemand tente ainsi de sortir de la crise provoqu?e au sein du parti social-d?mocrate par les r?formes ?conomiques et sociales du gouvernement.
Confront? ? une baisse persistante de sa cote de popularit? et au vif m?contentement de nombre de ses partisans face ? son programme d'aust?rit? ?conomique, le chancelier allemand, Gerhard Schr?der, a cr?? la surprise, vendredi 6 f?vrier, en renon?ant ? la pr?sidence du Parti social-d?mocrate (SPD).
Le chancelier a propos? que Franz M?ntefering, 64 ans, chef de file du groupe parlementaire SPD au Bundestag et l'un de ses proches alli?s, lui succ?de ? la t?te du parti. Dans la foul?e, le secr?taire g?n?ral du SPD, Olaf Scholz, 45 ans, fortement contest? par la base sociale-d?mocrate, a ?galement d?missionn? de ses fonctions.
Gerhard Schr?der tente ainsi de sortir de la crise ouverte par une fronde de la base du SPD face ? sa douloureuse r?forme de l'Etat-providence, qui frappe de plein fouet son ?lectorat. "Je vais me concentrer sur mon travail de chef de gouvernement", a indiqu? Gerhard Schr?der, 59 ans, lors d'une conf?rence de presse surprise, vendredi, ? Berlin.
Gerhard Schr?der a assur? qu'il restait attach? ? la mise en ?uvre de ses r?formes ?conomiques et que son d?part de la pr?sidence du SPD lui permettrait de mieux s'y consacrer. "L'Allemagne est engag?e dans l'un des plus importants processus de r?forme de son histoire d'apr?s-guerre", a tenu ? rappeler le chancelier, qui estime que "certains probl?mes de communication internes" au sein du SPD sur ce sujet justifient une nouvelle r?partition des t?ches.
Le choix de Franz M?ntefering n'est pas innocent, ce dernier ?tant plus populaire que Gerhard Schr?der aupr?s des militants de base du parti. Il pourrait ainsi servir de "paratonnerre" face aux critiques.
PROFONDE CRISE D'IDENTIT?
La fronde monte depuis plusieurs mois chez les militants du parti, qui vont affronter une ann?e ?lectorale charni?re, avec notamment cinq scrutins r?gionaux et huit scrutins municipaux. Sans compter la prise de distance de la puissante conf?d?ration syndicale allemande (DGB), traditionnellement li?e au SPD, qui est prise ? contre-pied par la politique d'aust?rit? du chancelier.
La base craint plus que tout le vote-sanction d'un ?lectorat d?boussol? par les r?formes ?conomiques et sociales mises en place par le gouvernement "rouge-vert" pour r?former l'Etat-providence issu du "miracle ?conomique" de l'apr?s-guerre. R?forme de la sant? demandant surtout aux patients de mettre la main au portefeuille, baisses d'imp?ts aux effets incertains, moindre indemnisation des ch?meurs : "Le seuil de tol?rance pour les gens est atteint", avait estim? il y a quelques jours le porte-parole du SPD pour les affaires ?conomiques, Rainer Wend.
Plus de 43 000 adh?rents du parti ont rendu leur carte en 2003 et le dernier sondage en date de l'institut Forsa cr?dite le SPD de seulement 24 % d'intentions de vote, le plus bas niveau depuis que Gerhard Schr?der est ? sa t?te, contre 50 % pour l'opposition conservatrice CDU.
Les appels ? des mesures drastiques pour enrayer cette descente ont ?man? ces derni?res semaines des rangs m?mes du SPD. Plusieurs hauts responsables sociaux-d?mocrates ont pr?conis? un remaniement minist?riel, un changement ? la t?te du SPD, ou tout bonnement un changement de politique.
Vendredi, pour la premi?re fois, un haut responsable du parti, la pr?sidente du SPD en Hesse, avait r?clam? du chancelier qu'il quitte la pr?sidence f?d?rale. La situation au SPD est "tr?s grave", avait estim? Mme Andrea Ypsilanti. D'autres voix exigent ?galement un remaniement minist?riel.
La semaine derni?re, le chancelier avait sembl? faire un geste en direction des contestataires en annon?ant "la fin des r?formes douloureuses" et en bloquant un projet de la ministre de la sant?, qui voulait taxer davantage les personnes sans enfants afin de financer l'assurance-d?pendance. Gerhard Schr?der avait eu beau parler de "mesure isol?e", sa d?cision avait ?t? interpr?t?e comme un changement de cap politique.
LA CDU AUX AGUETS
Pour l'opposition, sa d?mission de la pr?sidence du SPD t?moigne d'une "perte d'autorit? sur toute la ligne". La pr?sidente de l'Union chr?tienne-d?mocrate (CDU), Angela Merkel, y voit le "d?but de la fin pour le chancelier et le d?but de la fin pour le gouvernement".
"Je ne redoute pas une quelconque perte d'autorit?", a affirm?, vendredi, Gerhard Schr?der. Pourtant, les experts de la vie politique allemande estiment que son d?part de la t?te du SPD pourrait ?tre de nature ? affaiblir le chef du gouvernement. "C'est une r?action de panique, estime ainsi Frank Decker, politologue ? l'universit? de Bonn. Je ne vois pas comment le parti va pouvoir se d?brouiller avec cette chute de popularit? dans l'opinion. S'il continue ? perdre des ?lections r?gionales, ce gouvernement tombera avant la fin de la l?gislature", en 2006.
En revanche, les milieux ?conomiques se montrent satisfaits, ? l'image de Stefan Schneider, ?conomiste ? la Deutsche Bank. "La question est : est-ce que cette d?cision acc?l?rera le rythme des r?formes ? s'interroge-t-il. L'interpr?tation positive, c'est que Schr?der aura davantage de temps ? consacrer ? son programme de r?formes. M?ntefering a fait du bon travail en tant que chef du groupe parlementaire. (...) Il sera mieux ? m?me de contr?ler la situation."
Gerhard Schr?der est devenu pr?sident du SPD en 1999, ? la suite de la d?mission d'Oskar Lafontaine, qui avait aussi abandonn? ses fonctions de ministre des finances. Il cumulait les casquettes de chef de parti et de chancelier depuis avril 1999, mais a toujours ?t? un "marginal" au sein du SPD, la base l'ayant affubl? du surnom de "camarade des patrons" en raison de ses bonnes relations avec certains grands industriels. Son programme de r?formes, l'"Agenda 2010", vise ? relancer l'?conomie en d?r?glementant le march? du travail et en coupant dans les d?penses de protection sociale.
Le non-cumul des deux postes a d?j? connu un pr?c?dent, lorsque Helmut Schmidt avait succ?d? en 1974 ? la chancellerie ? Willy Brandt, laissant ce dernier conserver la pr?sidence du parti. Cette exp?rience s'?tait mal termin?e pour les sociaux-d?mocrates : Helmut Schmidt avait ?t? mis en minorit? par les conservateurs men?s par Helmut Kohl alors qu'il ?tait confront? ? une fronde du SPD hostile ? certaines r?formes ?conomiques et sociales et ? sa prise de position en faveur de l'implantation en Allemagne des missiles am?ricains Pershing face aux SS-20 sovi?tiques.
Avec AFP et Reuters
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>> L'AFFAIRE CONTINUED...
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L'"affaire Jupp?" domine le premier grand d?bat t?l?vis? de la campagne
LE MONDE | 06.02.04 | 13h21
Le tirage au sort lui a conf?r? la septi?me place, la derni?re des intervenants pr?sents, jeudi 5 f?vrier, sur le plateau de TF1. Le secr?taire g?n?ral de l'UMP, Philippe Douste-Blazy, remplace Alain Jupp?, son pr?sident, pour ce premier d?bat t?l?vis? de la campagne r?gionale - suivi par 8 millions de t?l?spectateurs, selon la cha?ne - auquel participent Fran?ois Hollande (PS), Marie-George Buffet (PCF), Dominique Voynet (Verts), Olivier Besancenot (LCR), Fran?ois Bayrou (UDF) et Jean-Marie Le Pen (FN).
"Ai-je cinq fois le temps de parole de mes pr?d?cesseurs ?", commence M. Douste-Blazy, alors que la discussion s'est imm?diatement engag?e sur "l'affaire Jupp?". Cinq ? Le maire de Toulouse croit alors pouvoir trouver en M. Bayrou un soutien. Il ne l'obtiendra jamais.
M. Douste-Blazy d?fend la d?cision de Jacques Chirac de ne pas saisir directement le Conseil sup?rieur de la magistrature (CSM) pour enqu?ter sur les pressions dont se sont plaint les juges du tribunal de Nanterre. "Il y aura une mission parlementaire, explique-t-il. Lorsque la pr?sidente de ce tribunal sera devant nous, il faudra lui poser trois questions (...) et surtout : "Est-ce que vous avez des preuves, Madame la pr?sidente ?"". "C'est tr?s grave ce que vous faites", l'interrompt Mme Voynet. "C'est une entorse ? la s?paration des pouvoirs, ce n'est pas au Parlement de contr?ler la justice", rench?rit M. Hollande.
Quelques minutes plus t?t, M. Le Pen s'est empar? du sujet. Citant "l'affaire du foulard" et "l'affaire du RPR", le chef du parti d'extr?me droite a cibl? son discours sur ce qu'il appelle "deux tabous"- "l'immigration et la corruption" -, revenant ainsi aux fondamentaux du discours du Front national. Pas une seule fois il n'intervient sur "l'ins?curit? sociale", qui est pourtant la th?matique officielle de son parti dans la campagne des r?gionales.
M. Bayrou, lui, est bien d?cid? ? ne faire aucun cadeau ? ses "amis" de l'UMP. "D?sormais, le parti gouvernemental vit enti?rement autour des affaires d'un c?t? et de la guerre de succession de l'autre", d?clare-t-il, en ?voquant "un climat malsain". "Le malaise vient de ce que les Fran?ais ont l'impression que ceux qui paient les r?formes, ce sont les plus fragiles", poursuit-il.
"CYNISME"
Face ? la division de la droite, les repr?sentants de la gauche prennent soin de ne pas s'agresser. M. Besancenot, qui se pr?sente comme "un des rares, sur le plateau, ? gagner moins de 8 000 francs par mois", mod?re ses piques. Quand M. Douste-Blazy affirme que "ce pays reprend confiance, ce gouvernement s'est occup? des plus modestes", tous s'indignent. "Il faut arr?ter !", s'exclame Mme Buffet. Mme Voynet d?nonce un "m?lange de dilettantisme et de cynisme -qui- n'est pas acceptable" et M. Besancenot l?ve les yeux au ciel.
M. Hollande insiste sur le message qu'il veut avant tout faire passer : "S'il y a une chance ? saisir, c'est bien ces ?lections qui viennent, pour ?tre utile (...) si on veut que ce gouvernement soit arr?t?." Pour Mme Buffet, ce doit ?tre aussi "un vote pour que la gauche redevienne une gauche populaire, une gauche des cit?s et des entreprises". M. Besancenot y voit l'occasion de mettre fin aux "subventions publiques ? des groupes industriels qui font des b?n?fices mais licencient quand m?me".
Isabelle Mandraud et Caroline Monnot
* ARTICLE PARU DANS L'EDITION DU 07.02.04
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Alain Jupp? ?voque son d?part de la mairie de Bordeaux "le moment venu"
LE MONDE | 06.02.04 | 13h21
Dans un entretien au journal "Sud-Ouest", il pr?cise sa nouvelle strat?gie de d?fense pour son proc?s en appel.
Apr?s avoir annonc?, mardi 3 f?vrier, sur TF1 son retrait programm? de la pr?sidence de l'UMP, ? l'?ch?ance du congr?s du parti ? la fin 2004, Alain Jupp? ?voque, dans un entretien accord? vendredi 6 f?vrier, ? France Bleu Gironde, un ?ventuel d?part de la mairie de Bordeaux et de la communaut? urbaine.
"Pour ce qui concerne Bordeaux, j'exercerai mes responsabilit?s de maire et de pr?sident de la communaut? urbaine, explique l'ancien premier ministre, et puis, le moment venu, selon un calendrier que je n'ai pas encore arr?t? en d?tail, le conseil municipal d'un c?t?, le conseil de communaut? de l'autre d?lib?reront et voteront" pour ?lire un nouveau maire et pr?sident. "J'ai ?t? heureux, poursuit-il, de consacrer une partie de ma vie ? cette ville (...) C'est toujours dur d'envisager de passer la main, mais bon, c'est la vie." Ces propos redonnent du cr?dit ? l'hypoth?se d'un retrait progressif qui avait ?t? ?voqu?, dans son entourage, au moment o? M. Jupp? s'interrogeait sur son avenir, apr?s sa condamnation.
Dans un autre entretien, publi? le m?me jour dans le quotidien Sud-Ouest, il indique, que "quelle que soit la d?cision de la cour d'appel, il est clair que, pour moi, rien ne sera jamais plus comme avant". M. Jupp? juge, notamment, que son retour au gouvernement, qui avait ?t? ?voqu? par certains, est, "aujourd'hui, totalement exclu". "C'est vraiment un point sur lequel on peut ?tre clair", a-t-il ajout?.
Abordant le sujet de sa succession ? la t?te de l'UMP, il affirme ne pas vouloir en ?tre l'organisateur. "Je n'ai pas ? d?signer mon successeur. Il va y avoir des ?lections, elles seront tout ? fait libres et transparentes (...) Il n'y a aucun barrage contre qui que ce soit", affirme-t-il. Sur TF1, le 3 f?vrier, il avait expliqu? vouloir " profiter de ces quelques mois (...) pour organiser la rel?ve, passer le t?moin".
"JE L'ASSUME"
Dans ces deux entretiens accord?s vendredi, M. Jupp? semble confirmer un changement de strat?gie de d?fense (Le Monde du 5 f?vrier). "Si j'ai commis une erreur, voire une faute c'est que je n'ai pas ?t? assez vite pour remettre de l'ordre dans les finances du RPR. Peut-?tre n'ai-je pas ?t? assez rigoureux, pas assez attentif. Je l'assume", d?clare-t-il ? Sud-Ouest. Le maire de Bordeaux se dit "pr?t bien s?r ? -s'- en expliquer davantage" devant la cour d'appel. "J'esp?re dans ce second proc?s pouvoir expliquer un certain nombre de choses que je n'ai peut-?tre pas bien expliqu?es dans le premier", a-t-il pr?cis?.
D?cid? ? conserver un profil "modeste", M. Jupp? - qui se dit "touch?" par les d?clarations de MM. Fabius et Emmanuelli - refuse "de porter un jugement sur les lois que nous avons vot?es". Mais il souligne que "toutes les juridictions ont toujours une marge d'appr?ciation dans l'application des lois. La jurisprudence cr?e aussi du droit".
M. Jupp? pr?cise que qu'il avait d?cid?, "dans la journ?e de lundi, seul, en -son- ?me et conscience" de ne pas mettre fin ? sa carri?re politique. Une mani?re de d?mentir l'effet des pressions de Jacques Chirac. Toutefois, cet aveu teinte d'ambigu?t? les manifestations de ferveur militante, mardi 3 f?vrier, auxquelles M. Jupp? avait assist? avec ?motion.
Christophe Jakubyszyn
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M. Dupont-Aignan "surpris de la surprise"
Nicolas Dupont-Aignan, d?put? (UMP) de l'Essonne, a estim?, vendredi 6 f?vrier sur l'antenne de RTL, que les juges de Nanterre (Hauts-de-Seine) "ont fait leur travail"en condamnant Alain Jupp?. Il a d?nonc? le "comportement clanique" qui r?gne, selon lui, ? l'UMP. Le fondateur du club Debout la R?publique d?clare avoir "?t? surpris de la surprise". "Chacun doit balayer devant sa porte", a-t-il indiqu? en commentant les d?clarations du premier ministre, Jean-Pierre Raffarin, qui, le 30 janvier, s'?tait dit "surpris" de la d?cision des juges.
"Notre responsabilit? est de conforter la loi que l'on vote et ceux qui l'appliquent", a-t-il poursuivi, tout en d?plorant que "les hommes politiques, surtout s'ils ont des fonctions ?lev?es, critiquent la justice". M. Dupont-Aignan a annonc? qu'il serait candidat ? la succession de M. Jupp? ? la t?te de l'UMP, en esp?rant que cette ?lection ne consistera pas "? transmettre un fief".
* ARTICLE PARU DANS L'EDITION DU 07.02.04
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Le CSM "regrette" d'avoir ?t? tenu ? l'?cart par Jacques Chirac
LE MONDE | 06.02.04 | 13h21
A la suite d'une r?union houleuse, jeudi 5 f?vrier, le Conseil sup?rieur de la magistrature a publiquement exprim? son d?saccord apr?s la cr?ation par le chef de l'Etat, pr?sident du CSM, d'une mission d'enqu?te administrative sur les pressions ?voqu?es par les magistrats du proc?s Jupp?.
Les mots peuvent sembler mesur?s. Mais la d?marche est exceptionnelle. Dans un communiqu? publi? jeudi 5 f?vrier, le Conseil sup?rieur de la magistrature (CSM) a marqu? clairement son d?saccord avec la cr?ation, par le pr?sident de la R?publique, d'une commission d'enqu?te administrative charg?e de faire la lumi?re sur les pressions ?voqu?es par les juges de Nanterre lors du d?lib?r? du jugement d'Alain Jupp?.
"Le CSM rappelle qu'il lui revient d'assister le pr?sident de la R?publique dans son r?le de garant de l'ind?pendance de l'autorit? judiciaire, conform?ment ? l'article 64 de la Constitution", souligne d'abord ce communiqu?.
Le CSM "regrette de ne pas avoir ?t? consult? avant la cr?ation d'une commission administrative charg?e d'enqu?ter sur des faits qui font l'objet d'une information judiciaire". Il "prend acte qu'il sera tenu compl?tement inform? des r?sultats de ces investigations et consult? pour avis". Et souligne enfin qu'il est "d'ores et d?j? saisi par le chef de l'Etat d'une demande d'avis sur les mesures qui pourraient ?tre prises pour mieux garantir l'autorit? judiciaire contre la mise en cause injustifi?e de tel ou tel de ses membres". Le 25 novembre 2003, Jacques Chirac a en effet saisi dans ces termes le CSM ? la suite de la demande de r?cusation d'une juge parisienne au motif de sa religion juive suppos?e.
Dans le langage raffin? de cette institution de la R?publique, on ne peut gu?re faire plus ferme ? l'adresse du chef de l'Etat, qui est aussi le pr?sident du CSM. Depuis quelques jours, la justice vit sous le feu des critiques des responsables politiques. L'entretien accord? au Monde par Dominique Rousseau, qui est la premi?re expression publique de l'un des membres du CSM, a r?v?l? l'ampleur de l'exasp?ration du monde judiciaire (Le Monde du 6 f?vrier). Pour M. Rousseau, professeur de droit constitutionnel, la d?marche pr?sidentielle constitue "une v?ritable entorse ? l'Etat de droit", dans lequel "on ne cr?e par du fait du prince une institution ad hoc hors de celles pr?vues".
DES SENSIBILIT?S VARI?ES
Dans ce contexte, le CSM a v?cu jeudi l'une des journ?es les plus tendues de son histoire. Dans les derni?res quarante-huit heures, les partisans d'une r?action publique du Conseil ont d? batailler pour obtenir satisfaction. Le CSM doit composer avec des sensibilit?s vari?es. Parmi ses seize membres, il compte des personnalit?s d?sign?es par le pr?sident de la R?publique, ceux de l'Assembl?e nationale et du S?nat. Il comprend un procureur g?n?ral (r?vocable en conseil des ministres), des procureurs, des juges du si?ge, ind?pendants, un professeur d'universit?. Si l'affaire Jupp? a cr?? une fracture entre les partisans d'une r?action ferme ? l'initiative chiraquienne et les autres, d'autres initiatives gouvernementales r?centes avaient au contraire rassembl? les membres du CSM. Ce fut le cas de la cr?ation, par le ministre de la justice, de la commission pr?sid?e par Alain Cabannes, charg?e de r?fl?chir ? la d?ontologie des magistrats. Dans ce pr?c?dent cas aussi, le CSM aurait d? ?tre l'organe naturellement d?sign? par le pouvoir politique : charg? de donner son avis sur les nominations de la magistrature, il est ?galement comp?tent pour traiter de la discipline des juges. C'est sa jurisprudence disciplinaire qui sert de r?f?rence pour sanctionner les manquements au devoir de r?serve, les insuffisances professionnelles ou les d?bordements de la vie priv?e des magistrats.
L'apr?s-midi de jeudi a commenc? par une explication de texte. Les conseillers du chef de l'Etat et du premier ministre charg?s de la justice, Laurent Lemesle et Denis Rapone, accompagn?s du directeur de cabinet du garde des sceaux, Patrick Hubert, sont venus devant le CSM "d?passionner" le climat et justifier la d?marche du chef de l'Etat. "Nous avons pens? au CSM, envers lequel il n'y a aucune m?fiance", ont-ils dit en substance, tout en rappelant que face ? la "gravit?" des faits ?voqu?s par les juges de Nanterre, le pr?sident avait voulu agir vite. Mais si cette premi?re r?union s'est d?roul?e dans une ambiance courtoise, celle qui a suivi fut beaucoup moins sereine. Suspensions de s?ance, prises ? partie menaces de d?mission, le CSM a tangu?. Apr?s une longue discussion, une prise de position collective a finalement pu avoir lieu. Au final, le communiqu? est tout ? la fois une fa?on de replacer le CSM au c?ur des institutions r?publicaines, une adresse aux responsables politiques, et un message de soutien ? une magistrature malmen?e.
A Bordeaux, o? il ?tait venu assister ? la prestation de serment de la nouvelle promotion de l'Ecole nationale de la magistrature (ENM), le ministre de la justice, Dominique Perben, a tenu ? pr?ciser le r?le de la mission d'enqu?te administrative dont sont charg?s les trois plus hauts magistrats fran?ais, Renaud Denoix de Saint-Marc (Conseil d'Etat), Guy Canivet (Cour de cassation) et Fran?ois Logerot (Cour des comptes). A c?t? de l'information judiciaire confi?e par le procureur de Nanterre ? deux juges d'instruction, cette mission, assist?e de plusieurs corps d'inspection, devra se pencher sur les dysfonctionnements qui ont pu se produire entre les diff?rents services de l'Etat. Elle pourrait aussi ?tablir des pr?conisations permettant aux juges qui rencontrent des pressions de conna?tre la conduite ? tenir.
"VERS LE BLOCAGE"
Les trois hauts magistrats, qui ont commenc? ? travailler, n'ont pas l'intention de g?ner l'instruction judiciaire en cours. Mais, ? l'issue de la journ?e de jeudi, il semble que leur travail soit moins ais? que pr?vu. "On s'achemine tout doucement vers le blocage de cette mission", analyse un magistrat. Entendus les premiers, avec la pr?sidente du tribunal de Nanterre, les trois juges qui ont statu? sur le sort d'Alain Jupp? n'avaient, selon plusieurs sources, pas tous l'intention de coop?rer. Samedi, seront ? leur tour convoqu?s devant la mission le procureur de Nanterre, Bernard Pag?s, le procureur g?n?ral de la cour d'appel de Versailles, Henri Desclaux, ainsi que le premier pr?sident de cette cour, Vincent Lamanda. Mais celui-ci est ?galement membre du CSM.
Nathalie Guibert
* ARTICLE PARU DANS L'EDITION DU 07.02.04
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Les juges de Jupp? boudent la commission administrative
Avec AFP.
[06 f?vrier 2004]
Les juges de Nanterre qui ont condamn? Alain Jupp? ont refus? de s'exprimer devant la commission administrative cr??e ? l'initiative de l'Elys?e, a-t-on indiqu? aujourd'hui de source judiciaire.
Les juges se sont rendus ? la cour de cassation pour une premi?re audition par la commission mais ils ont indiqu? qu'ils r?servaient leurs d?clarations aux juges charg?s de l'instruction sur cette affaire, a indiqu? cette source, confirmant une information donn?e ce matin par un quotidien.
La commission administrative a ?t? charg?e d'enqu?ter sur les pressions et les ?coutes t?l?phoniques dont les trois juges auraient fait l'objet.
Selon une autre source judiciaire, les trois juges ont ?crit ? la commission pour s'informer du contenu de la lettre de mission de cet organe et les textes l?gislatifs qui lui permettent de se saisir de l'affaire.
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JUSTICE Le Conseil sup?rieur de la magistrature s'?meut que la cr?ation d'une mission d'enqu?te administrative ait ?t? saisie de l'affaire du tribunal de Nanterre
Le CSM ?regrette? que Chirac l'ait ignor?
Guillaume Perrault
[06 f?vrier 2004]
La d?marche n'est pas banale. Elle est m?me unique dans les annales. Hier Val?ry Turcey, membre du Conseil sup?rieur de la magistrature (CSM) et ancien pr?sident de l'Union syndicale des magistrats, a lu un communiqu? devant la porte du si?ge de cette v?n?rable institution. Dans ce document rendu public au terme d'une r?union pl?ni?re, le CSM a ?regrett?? de ne pas avoir ?t? consult? sur la cr?ation d'une mission d'enqu?te administrative au sujet d'?ventuelles pressions au tribunal de Nanterre.
Les 16 membres du CSM en avaient d?battu hier apr?s-midi au cours d'une s?ance pr?vue de longue date. Cependant, en d?but de soir?e, un membre de l'institution assurait au Figaro que ?plusieurs d'entre-nous, hostiles ? cette d?marche, ?taient d?j? partis lorsque la discussion a eu lieu?. Et ce membre du CSM de d?noncer ?un v?ritable coup de force !?.
Charg? par la Constitution d'assister le Chef de l'Etat, ?garant de l'ind?pendance de l'autorit? judiciaire?, le CSM - compos? en majorit? de magistrats ?lus par leurs pairs - a d'abord auditionn? hier trois collaborateurs des plus hautes autorit?s de l'Etat : le directeur de cabinet du garde des Sceaux, le conseiller charg? de la justice ? Matignon et son homologue ? l'Elys?e.
Ces trois hauts fonctionnaires se sont efforc?s de dissiper leurs craintes : non, ont-ils assur? en substance, la mission d'enqu?te administrative annonc?e dimanche par Jacques Chirac n'a pas pour objet de les court-circuiter. Avant d'ajouter que les deux instances sont compl?mentaires.
?Les membres du CSM seront inform?s r?guli?rement des progr?s de l'enqu?te administrative sur d'?ventuelles pressions au tribunal de Nanterre?, a d'ailleurs pr?cis? hier le ministre de la Justice, Dominique Perben. Le pr?sident de la R?publique demandera ensuite au CSM son avis officiel sur les faits, comme la Constitution lui en donne la possibilit?.
La tentative d'apaisement ?tait-elle l'aveu d'une maladresse ? De nombreux magistrats s'?taient ?tonn?s que le ministre de la Justice ne saisisse pas l'Inspection des services judiciaires ou le pr?sident de la R?publique le CSM (nos ?ditions du 3 f?vrier). Apr?s une courte h?sitation, les syndicats de magistrats avaient fait part de leur ?tonnement. Dominique Rousseau, professeur de droit nomm? en 2002 au CSM par le pr?sident de l'Assembl?e nationale de l'?poque, Raymond Forni, a m?me estim?, dans une interview accord?e hier au Monde, que la mission d'enqu?te cr??e par Jacques Chirac ?tait ?une v?ritable entorse ? l'Etat de droit. (...) Dans l'Etat de droit, on ne cr?e pas du fait du prince une institution ad hoc, hors de celles pr?vues. Aucun texte constitutionnel, l?gal ou r?glementaire, ne pr?voit? l'initiative que vient de prendre le pr?sident de la R?publique.
?On cr?e depuis toujours des commissions d'enqu?te sans qu'un texte pr?voie cette pratique, r?torque l'entourage du chef de l'Etat. Le probl?me n'?tait pas juridique mais politique : l'Inspection des services judiciaires est sous l'autorit? du garde des Sceaux. Si Dominique Perben l'avait saisie, on aurait aussit?t soup?onn? une volont? d'?touffer l'affaire. C'est pourquoi on a choisi trois hauts magistrats ? l'ind?pendance incontest?e.?
Pourquoi au moins ne pas saisir le CSM, comme l'avait fait Fran?ois Mitterrand en 1995 quand le juge Halphen avait ?t? victime de pressions ? ?Ce pr?c?dent n'en est pas un, r?pond-on ? l'Elys?e. En r?alit?, Fran?ois Mitterrand avait pos? une question tr?s pr?cise : ?Le dessaisissement d'Eric Halphen est-il justifi? et porte-t-il atteinte ? son ind?pendance ?? Aujourd'hui, quelle question aurait-on pu poser au CSM ? on ne sait pas encore si les soup?ons de pressions sont fond?s ou non !?
-----------------------------------------------
AFFAIRE
Halliburton : une enqu?te pour corruption ouverte ? Washington
E. D.
[06 f?vrier 2004]
L'enqu?te visant notamment la soci?t? fran?aise Technip et l'am?ricaine Halliburton - que Dick Cheney, le vice-pr?sident des Etats-Unis, dirigeait jusqu'en 2000 - vient de conna?tre un premier rebondissement outre-Atlantique. Alors qu'? Paris le juge Renaud Van Ruymbeke est saisi du dossier depuis plusieurs mois, la section du d?partement de la Justice charg?e des violations de la loi anticorruption a ouvert, courant janvier, une enqu?te sur d'?ventuels pots-de-vin vers?s par Halliburton pour la r?alisation d'un complexe gazier au Nigeria, comme l'indique le site Internet de l'hebdomadaire Newsweek. Dans le m?me temps, la SEC (Securities and Exchange Commission), le gendarme des march?s financiers am?ricains, s'est lanc?e dans une v?rification (?probe?) sur les m?mes faits.
L'affaire, r?v?l?e en juin dernier par Le Figaro et d?velopp?e dans les m?dias am?ricains ces derni?res semaines, porte sur le paiement de 180 millions de dollars de commissions occultes vers?es entre 1995 et 2002 par un consortium charg? de construire le complexe industriel de Bonny Island, au Nigeria. Ce consortium est d?nomm? TSKJ du nom des quatre soci?t?s qui le composent : Technip, l'italien Snamprogetti, l'am?ricain Kellog - filiale de Halliburton - et le japonais JGC. Le juge Renaud Van Ruymbeke, qui est saisi d'une enqu?te pour ?corruption d'agent public ?tranger et abus de biens sociaux?, tente d?sormais d'identifier les v?ritables destinataires de cette somme. Il est toutefois acquis qu'elle a servi ? r?mun?rer un interm?diaire du nom de Jeffrey Tesler, un avocat britannique, choisi par la filiale de Halliburton. Concernant Dick Cheney, un rapport du parquet de Paris transmis ? la Chancellerie ? l'automne dernier ?tablissait que l'?ventualit? ?d'une mise en cause? du vice-pr?sident des Etats-Unis en sa qualit? d'ex-PDG de Halliburton jusqu'en 2000 n'?tait pas ? exclure (voir Le Figaro du 20 d?cembre).
Interrog? d?but janvier par le quotidien Dallas Morning News, l'entourage du vice-pr?sident am?ricain s'?tait refus? ? toute d?claration. Une position renouvel?e hier, un de ses porte-parole indiquant n'avoir ?aucune information sur cette question?. Reste ? savoir d?sormais si les proc?dures fran?aises et am?ricaines, totalement ind?pendantes, ne risquent pas d'interf?rer. Mais, pour l'heure, personne n'a encore ?t? interrog? ? Washington, o? la justice s'est pour l'instant content?e de r?clamer des documents ? la filiale de Halliburton.
Le juge Van Ruymbeke a, pour sa part, entendu de multiples personnes, mais surtout lanc? deux commissions rogatoires sur les comptes de Jeffrey Tesler en Suisse et ? Monaco. R?cemment, il a aussi recueilli les d?clarations d'un ancien dirigeant de Technip. Sur proc?s-verbal, celui-ci lui a expliqu? que le paiement des commissions aurait valu ? la soci?t? japonaise JGC une sanction administrative dans son pays, ce qui confirmerait le caract?re illicite de ces r?glements. Sollicit?e par Le Figaro, celle-ci n'a pas apport? de r?ponse.
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>> ELECTION NOTES...
Kerry fought for insurer that donated to him
By John Solomon
ASSOCIATED PRESS
Sen. John Kerry intervened to keep open a loophole that had let a major insurer divert millions of federal dollars from the nation's most expensive construction project, then received tens of thousands of dollars from the company in the next two years, documents show.
American International Group (AIG) paid Mr. Kerry's way on a trip to Vermont and donated at least $30,000 to a tax-exempt group that Mr. Kerry had used to set up his presidential campaign. Company executives also donated $18,000 to his Senate and presidential campaigns, according to records obtained by the Associated Press.
But Mr. Kerry, the current leader of the Democratic presidential race, said there was no connection between his actions in 2000 and the donations in 2001 and 2002.
Responding to an AP report Wednesday about the donations, the Massachusetts senator said he had worked to block the legislation because it would have cost Boston's "Big Dig" project $150 million. The legislation in 2000 aimed to close a loophole that had allowed the insurer to divert millions of federal dollars from the project.
The entire Massachusetts delegation "fought to hold on to $150 million for the Big Dig, which is the most important single project in Massachusetts and New England, and it had absolutely nothing to do with the industry," Mr. Kerry said.
He said he had opposed the insurance industry on other legislative issues, including bankruptcy changes and terrorism insurance.
But some government watchdogs said Mr. Kerry's story is a textbook case of the Washington special-interest politicking that he rails against on the presidential trail.
"The idea that Kerry has not helped or benefited from a specific special interest, which he has said, is utterly absurd," said Charles Lewis, head of the Center for Public Integrity that just published a book on political donations to the presidential candidates.
"Anyone who gets millions of dollars over time, and thousands of dollars from specific donors, knows there's a symbiotic relationship," Mr. Lewis said. "He needs the donors' money. The donors need favors. Welcome to Washington. That is how it works."
The documents obtained by AP detail Mr. Kerry's effort as a member of the Senate Commerce Committee to persuade committee chairman Sen. John McCain, Arizona Republican, to drop legislation that would have stripped $150 million from the Big Dig project and ended the insurance funding loophole.
Mr. Kerry actually was critical of the loophole but didn't want money stripped from the project because it would hurt his constituents who needed the Boston project finished, Kerry campaign spokeswoman Stephanie Cutter said.
Instead of Mr. McCain's bluntly worded legislation, Mr. Kerry asked for a committee hearing in May 2000. Mr. Kerry thanked Mr. McCain at the start of the hearing for dropping his legislation, and an AIG executive was permitted to testify that he thought the company's work for the Big Dig was a good thing even though it was criticized by federal auditors.
Asked why Mr. Kerry subsequently would accept a trip and money from AIG in 2001 and 2002 if he was concerned by the investment scheme, Ms. Cutter replied: "Any contributions AIG made to the senator's campaign came years after the investigation."
The New York-based insurer, one of the world's largest, declined to comment on its donations to Mr. Kerry, simply stating, "AIG never requested any assistance from Senator Kerry concerning the insurance we provided the Big Dig."
In September 2001, AIG paid an estimated $540 in travel expenses to cover Mr. Kerry's costs for a speech in Burlington, Vt., according to a Senate report filed by Mr. Kerry.
A few months later in December 2001, several AIG executives gave maximum $1,000 donations to Mr. Kerry's Senate campaign on the same day. The donations totaled $9,700 and were followed by several thousand dollars more in the next two years.
In spring 2002, AIG donated $10,000 to a new tax-exempt group, the Citizen Soldier Fund, that Mr. Kerry formed to lay groundwork for his presidential campaign. Later that same year, AIG gave two more donations of $10,000 each to the same group, making it one of the largest corporate donors to Mr. Kerry's group.
The insurer wasn't the only company to donate to Mr. Kerry's new group that had connections to the Big Dig -- a plan to alleviate congestion in downtown Boston by building an eight-to-ten-lane underground expressway directly beneath the existing six-lane Central Artery.
Two construction companies on the project -- Modern Continental Group and Jay Cashman Construction -- each donated $25,000, IRS records show.
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AP Exclusive: Three times, Kerry nominations and donations coincided
JOHN SOLOMON, Associated Press Writers
Thursday, February 5, 2004
(02-05) 23:26 PST WASHINGTON (AP) --
At least three times in his Senate career, Democratic presidential hopeful John Kerry has recommended individuals for positions at federal home loan banks just before or after receiving political contributions from the nominees, records show.
In one case, Kerry wrote to the Federal Housing Finance Board to urge the reappointment of a candidate just one day before a Kerry campaign committee received $1,000 from the nominee, the records show.
"One has nothing to do with the other," said Marvin Siflinger, who contributed around the time of Kerry's Oct. 1, 1996, recommendation that he be reappointed for another term to the board.
Kerry's office, like the nominees, insists the timing of the donations and the nominations was a coincidence.
"Sen. Kerry recommends dozens of very qualified individuals each year without regard to their politics or contributions. In this case each of the individuals were highly qualified for the jobs they were appointed to and served with distinction," spokeswoman Stephanie Cutter said.
"John Kerry is grateful for their support, and we should be thanking them for their service, not questioning it," she added. "The timing of the contributions was completely circumstantial."
But a longtime government watchdog says it is common for Washington appointees to donate just before or after they are nominated.
"This is just business as usual in Washington," said Larry Noble, the former chief lawyer for the Federal Election Commission who now heads the nonpartisan Center for Responsive Politics. "Kerry is out there saying he is not being part of that game, yet he is the product of the same money system."
With Kerry more vocally portraying himself on the presidential campaign trail as an opponent of special interest money in Washington, scrutiny of his dealings with donors and special interests has increased among his rivals and the news media.
Noble said while Kerry long has advocated campaign finance reform, he also has benefited from the big money system he now distances himself from on the campaign trail. "It's like a game where you say the people who support me just want good government, but the people who support my opponent are special interests," he said.
When he first ran for the Senate, Kerry promised voters he would carefully choose nominees on merit.
"I will act as a persistent watchdog over presidential appointments to ensure that only people of integrity, ability and commitment hold positions of power in our national government," Kerry wrote in a June 1984 fund-raising appeal.
All three of the people Kerry recommended got the positions they sought on various boards of Federal Home Loan Banks in Boston and New York that provide money for home mortgages.
Kerry's recommendations went to the five-member Federal Housing Finance Board, the regulatory body that votes on the final selections. Recommendations come from members of Congress, the White House and trade associations.
Siflinger, who was a state housing finance official when Kerry was Massachusetts lieutenant governor, was first appointed to the bank board in Boston during President George H.W. Bush's presidency and in 1996 sought Kerry's help to get reappointed.
"You normally seek the support of prominent people who are respected. Certainly in this instance I sought the support of Senator Kerry and I sought support of other members of the congressional delegation," Siflinger said in an interview Thursday.
Siflinger made his first donation to Kerry's Senate campaign committee in 1995 more than a year before his reappointment, according to Federal Election Commission records. His most recent donation to Kerry was several weeks ago, Siflinger said.
Investment banker Derek Bryson Park says it's "pure happenstance" that he made a pair of $1,000 donations to Kerry a month before the senator's Dec. 29, 1998, letter recommending Park for a position at the Federal Home Loan Bank of New York.
"I got assistance from both ... Democrats and Republicans" in attaining the bank board post, Park said.
The only political donations Park made to federal candidates around the period of his appointment were to Kerry, according to FEC records.
"I've been fortunate to be invited to Senator Kerry's home and we've had a number of meals together and get-togethers," said Park, who got to know Kerry through a longtime supporter of the senator.
Former congressional staffer Patrick Dober said that "there's absolutely no relationship" between his $408 donation nearly three months after Kerry's Oct. 9, 1998, recommendation to the federal bank board. Kerry's letter praised Dober for having "worked closely with my office" on "the banking crisis in the early 1990s."
At the time, Dober worked for Boston Capital, a real estate financing and investment firm co-founded by Kerry supporter Jack Manning. Manning, who has donated more than $800,000 to the Democratic causes over the past 14 years, gave $65,000 in 2001 and 2002 to a tax-exempt political group Kerry set up.
Dober says he thinks his $408 for tickets to a Kerry fund-raiser is the only contribution he's ever made to Kerry.
"There was a fund-raiser for Kerry and they had James Taylor and Robin Williams playing," Dober recalled. "My wife and I said this looks like fun. The tickets were a hundred bucks and a $2 service charge, so my wife and I went with another couple and I wrote the check."
Associated Press writer Pete Yost contributed to this report.
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The Pragmatists' Primary
Desperately seeking electability.
By Michael Kinsley
Posted Thursday, Feb. 5, 2004, at 12:26 PM PT
Democrats are cute when they're being pragmatic. They furrow their brows and try to think like Republicans. Or as they imagine Republicans must think. They turn off their hearts and listen for signals from their brains. No swooning is allowed this presidential primary season. "I only care about one thing," they all say. "Which of these guys can beat Bush?" Secretly, they believe none of them can, which makes the amateur pragmatism especially poignant.
Nevertheless, Democrats persevere. They ricochet from candidate to candidate, hoping to smell a winner. In effect, they give their proxy to the other party. "If I was a Republican," they ask themselves, "which of these Democratic candidates would I be most likely to vote for?" And by the time this is all over, most of the serious contenders will have been crowned the practical choice for at least a moment. First it was Lieberman the Centrist. "I'm actually for Dennis Kucinich," a Democrat might say, "because I like his position on nationalizing all the churches. But I'm supporting Joe Lieberman. His views on nearly everything are repellent to me, and I think that's a good sign."
Then the General entered the race. And I don't mean General Anesthesia. A man in uniform, Democrats thought. People like that sort of thing, don't they? And yet he's a Democrat. Or at least he plays one on TV. True, on most issues he has either no known position or two contradictory positions. But he says he can requisition those missing parts. And he's a General. Talk about pragmatic! But when the General traded in his uniform for a fuzzy sweater, he suddenly looked less General-like than Al Sharpton.
Some Democrats cheated and looked into their hearts, where they found Howard Dean. But he was so appealing that he scared them. This is no moment to vote for a guy just because he inspires you, they thought. If he inspires me, there must be something wrong with him. So, Democrats looked around and rediscovered John Kerry. He'd been there all along, inspiring almost no one. You're not going to find John Kerry inspiring unless you're married to him or he literally saved your life. Obviously neither of those is a strategy that can be rolled out on a national level. But he's got the r?sum?. And gosh, he sure looks like a president (an "animatronic Lincoln," as my Slate colleague Mickey Kaus uncharitably described him).
So, it's a deal? Probably, but just to be completely businesslike, Democrats are taking the opportunity to check out John Edwards. He certainly is good-looking, though maybe not in a presidential way. He lacks the uniform, but he has a Southern accent, which is almost as good if you're trying to seduce those non-liberals. Aspiring pragmatists also have noted recent press reports that Edwards has a stunning ability to sway an audience. I'm not looking to be swayed myself, our Democrat thinks. No need to sway me this year; my views don't matter, even to me. But swaying the heathenry would be good.
And Edwards is a first-term senator who never held office before. Thus he offers almost no experience, which is just the right amount. No political experience at all makes you look silly running for president, as Wesley Clark is discovering. But experience is also a disadvantage in American politics. All politicians, including incumbent presidents, campaign against Washington insiders and the political establishment. But it's a bit more convincing if you're a relative newcomer. Also, experience means a record of past votes and speeches. This limits your ability to invent yourself for the needs of today. As Kerry is discovering, even the most uninteresting two decades in the Senate can provide rich material simultaneously for Bush operatives trying to convince voters that you are a dangerous liberal and for primary opponents trying to convince voters that you are not one.
As each candidate takes his turn in the pragmatists' spotlight, he gets beaten up a bit, irritates supporters of the other candidates, and gives the Bush troops a chance for some early target practice.
If political pragmatism is defined as thinking like a Republican, it's no surprise that Republicans do it better. Four years ago, in a roughly analogous situation, it was decided that the Republican candidate for president should be the less impressive of the two political sons of the man who had most recently lost them the White House. A far from obvious choice. Decided by whom? If you're going to be pragmatic, that's just the kind of question you don't ask. It was decided, OK? On the issues that divided their party, his views were hard to fathom and stayed that way. He was rich in valuable inexperience. And so, with one voice, millions of Republicans shouted a mighty, "Well, I'm glad that's settled."
The process the Democrats are putting themselves through resembles John Maynard Keynes' famous description of the stock market. The game isn't to figure out which stocks are most likely to do well, but to figure out which stocks other investors think are most likely to do well. And these other investors are thinking of other investors and so on. Keynes thought this helped to explain the volatility of stock price. Your judgment about other people's judgment, let alone other people's judgment about other people's judgment, is inherently less certain and more subject to breezes of false or true insight and information than your judgment about your own judgment.
Something similar may be going on in the Democratic primaries. But the analogy breaks down, because only the Democrats are intent on figuring out what other people want. Republicans know what they want.
Michael Kinsley is Slate's founding editor.
>> NEW YORK CITY AND BLOOMBERG WATCH...
KILLING HOUSING
By JULIA VITULLO-MARTIN
February 5, 2004 -- OVER the veto of Mayor Bloomberg and despite the pleadings of prominent nonprofit housing developers, the City Council yesterday passed its Childhood Lead Poisoning Prevention Act. The new law holds landlords responsible for the presence of lead paint and dust and sets up a stringent schedule for inspection, removal and clean up. While a few of the law's features are good - requiring better procedures in handling lead dust, for example - others spell disaster for rehabilitating affordable housing.
One of New York City's greatest triumphs of the last two decades has been the rehabilitation of tens of thousands of units of affordable housing in once desperate neighborhoods. The South Bronx, Bedford-Stuyvesant and others flourish today because of the huge public and private investment in housing that began in the second Koch administration.
The lead-paint law will jeopardize further investment, say nonprofit housing developers, particularly in small, 20- to 40- unit occupied buildings in fragile neighborhoods. These are precisely the neighborhoods the City Council claims to be helping.
And while the comeback of many neighborhoods has been astonishing, the scale of what still needs to be done remains immense. Michael Lappin, president of the Community Preservation Corp., estimates that 1.4 million housing units "need ongoing access to capital" for new plumbing, windows, boilers and other repairs.
The "key thing," he argues, is to rehabilitate "occupied buildings that are still habitable. We don't want to wait until conditions become so bad that gut rehab becomes the only option."
Yet by making landlords solely responsible for the existence of lead-based paint, the bill sets excessively high legal standards of liability and deters rehabilitation. Indeed, the law permits landlords to be sued even when there is no lead paint in the building. If a child's blood is found to have elevated lead levels, the law presumes that the child's residence has lead - until the owner can refute the presumption in a contested proceeding, either in court or to a city agency.
The law gives tenants and tort lawyers a clear path to sue property owners, even those who are not at fault. Such liability will choke off insurance, which is already hard to come by in many neighborhoods.
Ronay Menschel, chairman of Phipps Houses, says that the bill is an "invitation to expand tort litigation that will waste precious resources to no good effect." The insurance industry has indicated very clearly, she notes, that "they're not going to provide insurance, particularly for small buildings owned by small-property owners."
The withdrawal of insurance in declining urban neighborhoods during the 1960s and 1970s nearly killed off American cities. At the time, few elected officials understood what was happening. Now our City Council is deliberately setting up the conditions for yet another withdrawal.
The bill's supporters scoff at these arguments, saying that responsible landlords have nothing to fear. Yet Phipps Houses has already been sued under the previous law for lead exposure in properties that were built in the last five years. "It cost us money to file papers just to have the suits dismissed," says Menschel. "A wave of litigious activity is going to waste resources that can be better applied to housing improvements."
Indeed, a consortium of nonprofit developers has produced a list of endangered projects: some 1,900 apartments slated for $70 million to $85 million in rehabilitation investment to begin over the next nine months. Their regular insurers warned them that the bill will imperil their ability to get liability protection on these occupied, pre-1960 buildings.
"If we can't get insurance or can't get insurance at a price the building could afford, we won't be able to do the rehabilitation," says CPC Executive Vice President John McCarthy.
Mayor Bloomberg pointed out another problem in his veto letter: Because the bill's onerous provisions are triggered by the presence of children, it may lead to increased discrimination against families with children. This has happened in Massachusetts, which has a very strict tort liability law on lead paint hazards.
City Council Speaker Gifford Miller has said he will amend the law if it proves to be as egregious as nonprofit developers say. But, of course, by that point both insurance and capital will have fled, as they often have before.
The mayor is now the best hope for affordable housing here: His housing and health agencies will write the regulations to implement the law, and may be able to limit the damage from the bill.
New Yorkers are lucky that this administration fully understands the importance of revitalized low- and moderate-income neighborhoods to the city's well-being.
Julia Vitullo-Martin is a senior fellow at the Manhattan Institute.
NEW YORK POST is a registered trademark of NYP Holdings, Inc.
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Publication:The New York Sun; Date:Jan 14, 2004; Section:Editorial & Opinion; Page:9
Public Housing's Difficult Future
By JULIA VITULLO-MARTIN Ms. Vitullo-Martin is a senior fellow at the Manhattan Institute.
One of the largest and most serious housing and development issues in New York City receives almost no attention in the press: and that's public housing. It only gets extensive coverage when something bizarre or potentially violent occurs,or better yet,both.For example,the press immensely enjoyed writing about the full-grown male Bengal tiger and the 5-foot-long crocodile that were discovered in October living in a 5-bedroom apartment in the Drew Hamilton Houses in Harlem.
Yet by any objective measure, the New York City Housing Authority is important -- and huge.With its 345 projects holding 181,000 units and housing about 175,000 families, it owns one of every 13 rental units in the city. And the demand for its housing is impressive: Over 146,000 families are on its waiting list.
Nycha is by far the largest American housing authority, managing one out of every seven public housing units in the country. And because New York, unlike most cities, deliberately sited its projects throughout the city, including in middleincome neighborhoods, it now has many low-income, sometimes decaying projects smack in the middle of gentrifying development. (New York thereby avoided the far greater calamity of excessive concentration of low-income,non-working households in neighborhoods from which working families then flee.)
Some projects,such as the landmarked Harlem River Houses in Manhattan and the Williamsburg Houses in Brooklyn, make good neighbors.They are well maintained and reasonably well managed.Others, such as Coney Island Houses, have nearly destroyed their neighborhoods with violent crime,drug dealing,and rampant vandalism.
Good neighbors or bad, all Nycha projects face a difficult future.The federal government,which has often played a ruinous role in public housing,has pretty much settled on a strategy of capped funding toward local authorities. In other words, while authorities will continue to get some federal funds, they have for several years been under increasing pressure to cover their expenses with rental income, just like any landlord.
In particular, the federal "modernization" funds that paid for capital improvements have been seriously restricted. This would be fine if public authorities were also allowed, like private landlords, to make their own decisions about tenant eligibility,rent levels,eviction policies, rehabilitation standards, etc.
Nycha has the resources and properties on its own to make some profitable transactions that could subsidize its poorer tenants. But, of course, authorities such as Nycha have long labored under the whims of the federal government, whose decades of contradictory and coercive federal policies have undermined the original high ideals behind public housing.
The idea of the 1937 Wagner-Steagall Act was to free working families from their dark,primitive,disease-ridden,overcrowded tenements, and house them instead in clean, if austere, modern buildings engineered with modern plumbing. Tenants were to pay a modest rent -- 25% of their income -- while accumulating enough savings to make a down payment on homes of their own. Public housing, much like the Depression's public assistance, was thought to be transitional.
Even before the 1937 Wagner-Steagall Act, Nycha erected the first governmentbuilt and -financed housing project. First Houses,a masterfully rehabilitated row of old tenements on the Lower East Side,was completed in 1936.However,the genius of its design lay in a principle that Nycha -- and all other housing authorities -- quickly abandoned. Every third tenement was demolished, thereby admitting the light and air that had always been missing, beforethe remaining tenements were extensively rehabilitated.
First Houses is in good shape today because Nycha has cared for it well and, though Nycha officials deny any favoritism, they have not housed their most troubled families there. Of First Houses' 168 residents, 23% are minors. Indeed, 47% of the 112 families in First Houses are headed by people 62 years or older. Only 14% of the families are on welfare -- as compared with 21% of all Nycha families.
Nycha has fought hard -- against bitter opposition by advocates in New York and bureaucrats and politicians in Washington, D.C. -- to maintain income diversity and working families in its projects.This is in startling contrast to nearly every other big city system. These systems became housing of last resort primarily for the desperately poor with no place better to go. An impressive 38% of Nycha families work.Yet here's the long-term problem: The average rent for all households is $302, which cannot possibly cover proper repair and maintenance.
Even if national politics were to change substantially,producing both a Democratic president and Democratic Congress, federal policies will probably never again favor generous subsidies to housing authorities. Because everyone has known this for a long time, most cities have responded by demolishing bad projects and taking advantage of federal programs,primarily Hope VI, that reward privatization efforts.
Proudly abstaining from large-scale demolition, saying all its projects are sound, Nycha has barely dipped its toe into Hope VI. Hope VI funding requires projects to be scaled down in size or density and replaced with low-rise,preferably owner-occupied townhouses, sometimes mixed with renters. (Nycha has one Hope VI program in Far Rockaway, in Queens, and another in Ocean Hill-Brownsville, in Brooklyn.) Yet Nycha is the one authority in which privatization has a chance of working -- because Nycha owns good properties in good neighborhoods.
During the first Bush administration, the secretary of Housing and Urban Development, Jack Kemp, passionately espoused home ownership for public housing tenants. However, he made a serious miscalculation that the tenants did not make.The housing he wanted to sell them was undesirable. He ineptly tried selling bad properties in bad neighborhoods to poor people, who lacked the income to make ongoing mortgage payments, much less cover capital improvements.
Nycha has a different situation altogether. It owns good properties, and it has many hard-working, ambitious, potentially home-owning households, who would make good neighbors in a mixed-income development. Old-fashioned, ugly projects mar many neighborhoods in New York.The federal government has offered one way out via Hope VI -- a first step to privatization and home-ownership.
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Posted by maximpost
at 8:49 PM EST
