The Torture Memos: The Case Against the Lawyers - The New York Review of Books

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By David Cole

1.

On Monday, August 24, as President Obama began his vacation on Martha's Vineyard, his administration released a previously classified 2004 report by the CIA's inspector general that strongly criticized the techniques employed to interrogate "high-value" al-Qaeda suspects at the CIA's secret prisons.^[1] The report revealed that CIA agents and contractors, in addition to using such "authorized" and previously reported tactics as waterboarding, wall-slamming, forced nudity, stress positions, and extended sleep deprivation, also employed a variety of "unauthorized, improvised, inhumane and undocumented" methods. These included threatening suspects with a revolver and a power drill; repeatedly applying pressure to a detainee's carotid artery until he began to pass out; staging a mock execution; threatening to sexually abuse a suspect's mother; and warning a detainee that if another attack occurred in the United States, "We're going to kill your children."

The inspector general also reported, contrary to former Vice President Dick Cheney's claims, that "it is not possible to say" that any of these abusive tactics— authorized or unauthorized—elicited valuable information that could not have been obtained through lawful, nonviolent means. While some of the CIA's detainees provided useful information, the inspector general concluded that the effectiveness of the coercive methods in particular—as opposed to more traditional and lawful tactics that were also used—"cannot be so easily measured." CIA officials, he wrote, often lacked any objective basis for concluding that detainees were withholding information and therefore should be subjected to the "enhanced" techniques. The inspector general further found no evidence that any imminent terrorist attacks had been averted by virtue of information obtained from the CIA's detainees. In other words, there were no "ticking time bombs."

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The same day, Attorney General Eric Holder announced that he was asking John Durham, a federal prosecutor already investigating the CIA's suspicious destruction of its interrogation videotapes, to expand his inquiry to include a preliminary investigation into some of the CIA's most extreme interrogation tactics. Holder simultaneously announced that he would not prosecute "anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees."

The latter limitation suggests that Holder has directed the investigation to focus only on those interrogators who engaged in unauthorized conduct, but not on the lawyers and Cabinet officials who authorized the CIA to use specific techniques of brutal physical coercion in the first place. If the inquiry stops there, it will repeat the pattern we saw after the revelation of the abuses at Abu Ghraib, in which a few low-level individuals were prosecuted but no higher-ups were held accountable.

Lost in all the attention given to the CIA inspector general report and Holder's announcement was still another packet of documents released later the same day, from the Justice Department's Office of Legal Counsel (OLC). When these memos, letters, and faxes are considered together with an earlier set disclosed in April 2009, it becomes clear that there is an inherent conflict of interest in the investigation Holder has initiated. Justice Department lawyers were inextricably involved in justifying every aspect of the CIA program. They wrote memo after memo over a five-year period, from 2002 to 2007, all maintaining that any interrogation methods the CIA was planning to use were legal. And now the Justice Department is investigating not itself, but only the CIA, for atrocities in which both were deeply implicated.

While the memos from the Office of Legal Counsel have received less attention than the details of brutal treatment recorded by the CIA inspector general, these memos are the real "smoking gun" in the torture controversy. They reveal that instead of requiring the CIA to conform its conduct to the law, the OLC lawyers contorted the law to authorize precisely what it was designed to forbid. They concluded that keeping suspects awake for eleven days straight, stripping them naked, exposing them to cold temperatures, dousing them with water, slamming them into walls, forcing them into cramped boxes and stress positions for hours at a time, and waterboarding them hundreds of times were not torture, not cruel, not inhuman, not even degrading, and therefore perfectly legal. The memos make clear that true accountability cannot stop at the CIA interrogators, but must extend up the chain of authority, to the lawyers and Cabinet officers who approved the "enhanced interrogation techniques" in the first place.

The OLC's defenders argue that it was difficult to define concretely exactly what constitutes torture or cruel, inhuman, or degrading treatment and that there was little direct precedent to go on. There is some truth to these arguments. Not all physically coercive interrogation is torture. Determining whether tactics qualify as torture under federal law requires difficult distinctions between "severe" and less-than-severe pain and suffering, and between "prolonged" and temporary mental harm. Former Attorney General Michael Mukasey has argued that the lawyers acted in good faith to render their best judgment on these issues in perilous times.

Precisely because many of the questions were so difficult, however, one would expect a good-faith analysis to reach a nuanced conclusion, perhaps approving some measures while definitely prohibiting others. Yet it is striking that on every question, no matter how much the law had to be stretched, the Bush administration lawyers reached the same result—the CIA could do whatever it had proposed to do. And long after federal officials acknowledged that the threat of terror had substantially subsided, the OLC continued to distort the law so as to facilitate brutality.

Most disturbingly, the OLC lawyers secretly maintained their position even as the relevant facts changed, and even after the law developed to underscore that the CIA's tactics were illegal. There was one law for public consumption, but another quite different law operating in secret. For example, when the Justice Department's initial August 2002 memo interpreting the torture statute was leaked to the press in June 2004 and widely condemned, the department publicly issued a replacement memo, dated December 30, 2004, which rejected several interpretations advanced in its earlier memo. But the recently disclosed documents reveal that the department continued in secret to approve all the same interrogation tactics.

In 2005 Congress threatened to restrict CIA tactics further by confirming that every person in US custody was protected against not only torture, but all cruel, inhuman, and degrading treatment. The Bush lawyers drafted yet another secret opinion, concluding that none of the CIA's tactics could even be considered cruel, inhuman, or degrading. And when the Supreme Court ruled in 2006 that the Geneva Conventions, which broadly prohibit all mistreatment of wartime detainees, applied to al-Qaeda, the OLC lawyers wrote still another secret opinion recommending that President Bush issue an executive order that would "authoritatively" establish that the CIA's tactics did not violate the laws of war—simply because the president said so. When considered as a whole, the memos reveal a sustained effort by the OLC lawyers to rationalize a predetermined and illegal result.

2.

History has shown that even officials acting with the best intentions may come to feel, especially in times of crisis, that the end justifies the means, and that the greater good of national security makes it permissible to inflict pain on a resisting suspect to make him talk. History has also shown that inflicting such pain—no matter how "well-intentioned"—dehumanizes both the suspect and his interrogator, corrodes the system of justice, renders a fair trial virtually impossible, and often exacerbates the very threat to the nation's security that was said to warrant the interrogation tactics in the first place.

Knowing that history, the world's nations adopted the Geneva Conventions and the Convention Against Torture (in 1949 and 1984), both of which prohibit torture in absolute terms. The Convention Against Torture provides that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."

If laws such as the Geneva Conventions and the Convention against Torture are to work, however, lawyers must stand up for them. That means being willing to say no when asked whether it is permissible to subject a human being to the brutality that the CIA proposed. Yet the OLC lawyers always said yes. Where precedents were deemed helpful, they cited them even if they were inapposite; where precedents were unhelpful, they did not cite them, no matter how applicable. They treated the law against torture not as a universal moral prohibition, but as an inconvenient obstacle to be evaded by any means necessary.

Such an approach to the law is especially alarming in view of the particular role of the Office of Legal Counsel. That office is designed to serve as the "constitutional conscience" of the Justice Department. As Jack Goldsmith, one of the heads of the OLC under President Bush, has said, "OLC is, and views itself as, the frontline institution responsible for ensuring that the executive branch charged with executing the law is itself bound by law." It attracts some of the nation's best lawyers, and its alumni include former Chief Justice William Rehnquist, Justice Antonin Scalia, former Solicitors General Theodore Olson and Walter Dellinger, former Yale Law School Dean and current State Department Legal Adviser Harold Koh, Harvard Law Professor Cass Sunstein, and former Yale University President Benno Schmidt Jr.

Private lawyers are sometimes considered "hired guns," whose obligation is to interpret the law as far as possible to do their client's bidding. We rely on the adversarial system and public airing of arguments and evidence to reach a just result. Lawyers in the Office of Legal Counsel, by contrast, work in a setting that affords no adversarial presentation or public scrutiny. In that position, the lawyer's obligation is to provide objective advice as an "honest broker," not to act as an advocate or a hired gun.

When it comes to covert activities such as the CIA interrogation program, judgments of legality are often uniquely in executive hands, since the judiciary, Congress, and the public may not even know of the activities' existence. In addition, on the question of torture the OLC lawyers were the last—and only—line of defense, since the detainees were denied all recourse to the outside world.

If OLC lawyers had exercised independent judgment and said no to the CIA's practices, as they should have, that might well have been the end of the Bush administration's experiment with torture. Vice President Dick Cheney and his chief counsel, David Addington, would undoubtedly have put tremendous pressure on the OLC to change its views; but had the OLC stood firm, it is difficult to imagine even the Bush-Cheney White House going forward with a program that the OLC said was illegal.

The OLC lawyers had the opportunity, and the responsibility, to prevent illegal conduct before it occurred. The lawyers involved in drafting the "torture memos"—Jay Bybee, John Yoo, Daniel Levin, and Steven Bradbury—failed to live up to these obligations. In their hands, law became not a constraint on power but the instrument of unconscionable abuse.

3.

The "original sin" in this narrative dates to August 1, 2002, when the OLC issued two memos that approved every tactic the CIA had proposed. From that point forward, there was no turning back. Other OLC memos had already ruled that the Geneva Conventions did not protect al-Qaeda detainees. And as we would learn later, the OLC had secretly concluded that the Convention Against Torture's prohibition on cruel, inhuman, and degrading treatment did not apply to foreigners held in CIA custody abroad. The August 2002 memos, therefore, addressed what the OLC considered the sole remaining barrier to harsh interrogation tactics—a federal statute making torture a crime.

The initial August 2002 memo, written by John Yoo and signed by Jay Bybee, was leaked in 2004, and has already been widely discussed.^[2] It defined "severe pain or suffering" by reference to an obscure and inapposite health benefits statute, concluding that in order to be "severe," pain must be "equivalent in intensity to the pain accompanying organ failure, impairment of bodily function, or even death." It interpreted "prolonged mental harm" to require proof of harm lasting "months or years." It said that the president had unchecked power to authorize torture despite a federal statute making it a crime. And it argued that an interrogator who tortured could escape liability by asserting unprecedented versions of the "self-defense" and "necessity" doctrines, advancing much broader interpretations of these concepts than most criminal defense lawyers would be willing to offer.

The same day, August 1, 2002, the OLC issued a second memo, publicly released for the first time in April 2009. It concluded that all of the CIA's proposed tactics were permissible: specifically,

(1) attention grasp, (2) walling, (3) facial hold, (4) facial slap (insult slap), (5) cramped confinement, (6) wall standing, (7) stress positions, (8) sleep deprivation, (9) insects placed in a confinement box, and (10) the waterboard.

None of these techniques, the OLC insisted, inflicted pain of a severity associated with organ failure or death. While being slammed into a wall repeatedly "may hurt...any pain experienced is not of the intensity associated with serious physical injury." What was the basis for these OLC conclusions? The CIA itself. With respect to waterboarding, for example, the OLC memo stated: "[the CIA has] informed us that this procedure does not inflict actual physical harm," and on that basis the memo concluded that waterboarding "inflicts no pain or actual harm whatsoever." And waterboarding cannot cause any long-term suffering, the OLC determined, because, according to the CIA, it "is simply a controlled acute episode."

The arguments of the initial August 2002 memo were so strained that the Justice Department abandoned them as soon as the memo was made public in 2004. On December 30, 2004, the department issued a replacement memo, signed by the new OLC head, Dan Levin, that pointedly departed from the August 2002 memo on several specific points. But these disagreements were purely cosmetic; behind closed doors, issuance of the ostensibly contrite replacement memo did not change anything with respect to the CIA's program. The memo was more an exercise in public relations than in law, since it did nothing to restrict the specific techniques that had been approved previously.

This becomes clear in three secret memos issued in May 2005, and signed by Steven Bradbury, who succeeded Levin as head of the OLC. These memos sound at first reading more reasonable than the August 2002 memos. They acknowledge more contrary arguments, and even occasionally express doubt. They were written with acute awareness of the widespread public criticism of the leaked August 2002 memo, and of the damning findings of the 2004 CIA inspector general's report. By this time, almost four years after September 11, and with substantial evidence of abuse, the OLC should have known better. Yet the May 2005 memos are in a fundamental sense the worst of the lot, and ultimately reach even more unreasonable positions than the August 2002 memos.

The May memos conclude that none of the CIA techniques, used singly or in combination, constitute either torture or cruel, inhuman, or degrading treatment. Their analysis is heavily predicated on two facts: (1) American soldiers subjected to some of these techniques in the military's counter-torture training (called Survival, Evasion, Resistance, Escape, or SERE) reportedly have not suffered severe physical pain or prolonged mental harm; and (2) doctors would be present to monitor the interrogations. Neither fact remotely supports the legality of the program.

The SERE experience is wholly inapposite. A soldier who chooses to subject himself to SERE training does so voluntarily; he knows that everything that happens to him is part of a program that he knows has clear limits. He is given a code word that he can use at any time to halt the process. By contrast, an al-Qaeda suspect finds himself an involuntary captive of his enemy in a secret prison, cut off from the outside world, unaware of any limits, and utterly powerless to make his interrogators stop.

Nor does the presence of a doctor make coercive interrogation legal. The memos stressed that medical experts with SERE experience would stop the interrogations "if deemed medically necessary to prevent severe mental or physical harm." But how is a medical expert supposed to assess whether a given technique is imposing severe rather than less-than-severe pain, or might give rise to prolonged rather than temporary psychological harm? No doctor could assess these things on the spot. Indeed, at one point the December 2004 memo seems to admit this, quoting a medical journal to the effect that "pain is a subjective experience and there is no way to objectively quantify it." And if anything, experience with SERE simulations is likely to have desensitized doctors to the potential harms presented by real coercive interrogations.

A separate memo, dated May 30, 2005, the most disingenuous of all, concluded that the CIA's techniques did not even constitute cruel, inhuman, or degrading treatment, a much lower threshold than torture. The Bush OLC had previously sidestepped the prohibition against "cruel, inhuman, or degrading treatment" altogether by maintaining, again in secret, that it did not apply to foreign nationals held outside US borders. But when that interpretation was publicly disclosed, Congress vowed to overrule it. The Bush administration vigorously resisted, but in the Detainee Treatment Act, enacted in December 2005, Congress expressly prohibited cruel, inhuman, or degrading treatment of any person in US custody.

Recognizing that this change was coming, the May 30 memo stated, once again in secret, that none of the CIA's techniques were cruel, inhuman, or degrading anyway, because they would not "shock the conscience," a test imposed by the Senate when it ratified the 1984 treaty banning torture and cruel treatment. The OLC concluded that the CIA tactics did not shock the conscience because they inflicted pain not arbitrarily but for a good end, and because the government sought to "minimize the risk of injury or any suffering that does not further the Government's interest in obtaining actionable intelligence."

The case law is clear, however, that any intentional infliction of pain for interrogation purposes "shocks the conscience." And the Supreme Court has recognized no exception that would permit the infliction of pain if the government's reason is good enough. The Court has repeatedly held that any use or threat of force to coerce a confession shocks the conscience—even where employed to solve a murder.^[3]

The OLC argued in its May 30 memo that this standard ought not to apply where interrogation is used only to gather intelligence, not to convict. But in Chavez v. Martinez, the Supreme Court in 2003 reaffirmed that any intentional infliction of pain for interrogation would shock the conscience, even where the statements were not used in a prosecution. In the Chavez case, officers interrogated a man while he was suffering from gunshot wounds in a hospital, but they did not inflict any pain themselves for the purpose of questioning. While the justices disagreed about the specific conclusions to be drawn from the facts alleged, and ultimately returned the case to the lower court for resolution, all of the justices who addressed the issue agreed that the deliberate infliction of pain on an individual to compel him to talk would shock the conscience.

Justice Kennedy, writing for three justices, reasoned that police "may not prolong or increase a suspect's suffering against the suspect's will," or even give him "the impression that severe pain will be alleviated only if [he] cooperates." Justice Thomas, writing for another three justices, concluded that the interrogation was permissible, but only because he found "no evidence that Chavez acted with a purpose to harm Martinez," or that "Chavez's conduct exacerbated Martinez's injuries." Under either approach, then, a purpose to harm is illegal. The court of appeals on remand in the Chavez case unanimously held that the alleged conduct indeed shocked the conscience, a fact not even acknowledged by the OLC memo.

The OLC memo maintained that "the CIA program is considerably less invasive or extreme than much of the conduct at issue in [Chavez]." In fact, the opposite is true. The officers in Chavez inflicted no pain for purposes of interrogation. The CIA's entire program, by contrast, was based on the deliberate infliction of pain and humiliation to compel recalcitrant suspects to talk against their will.

Tellingly, at the very end of this memo, the OLC lawyers admitted that "we cannot predict with confidence that a court would agree with our conclusion." But they then went on to reassure the CIA that the question "is unlikely to be subject to judicial inquiry." Even if the treaty prohibiting torture and cruel treatment were violated, the memo continued, "the courts have nothing to do and can give no redress." In other words, the CIA for all practical purposes was operating in a "law-free zone," or at least a zone where the law was whatever the executive said it was—in secret. And no court would ever have the opportunity to disagree.

The latest OLC memo on the CIA interrogation program to be disclosed is dated July 2007, and was publicly released on August 24, 2009.^[4] By the time this memo was written, the Supreme Court had rejected the Bush administration's contention that al-Qaeda detainees were not covered by Common Article 3 of the Geneva Conventions. Common Article 3 comprehensively prohibits torture, cruelty, violence to person, and any humiliating, degrading, or inhumane treatment of wartime detainees. By 2007, the CIA had limited their interrogation tactics but were still using extended sleep deprivation, dietary manipulation, attention grasps, and slapping detainees repeatedly in the face and stomach—all of which would ordinarily violate Common Article 3.

The OLC argued that Common Article 3 permitted abuse of al-Qaeda detainees that it would not permit of any other wartime detainees, even though Common Article 3 draws no distinctions among detainees. Other courts had ruled that any deliberate infliction of pain to coerce statements from suspects is inherently degrading. The OLC rejected that view, insisting that degrading treatment was permissible as long as it was not an "outrage upon personal dignity"—but never explained why using physical pain to override a suspect's will is not inherently an outrage upon personal dignity.

Most astoundingly, the memo argued —in a footnote—that the president could avoid all of Common Article 3's requirements simply by declaring that they do not apply—even though the Supreme Court had ruled exactly the opposite one year earlier. In the OLC's view, the Military Commissions Act of 2006 gave the president the power to overrule the Supreme Court on this matter. Congress never said anything of the kind. The memo concluded with the advice that the president act somewhat less dramatically, and simply issue a regulation that "defined" Common Article 3 in a way that would allow the CIA to do what it wanted. President Bush subsequently did just that.

4.

At its best, law is about seeking justice, regulating state power, respecting human dignity, and protecting the vulnerable. Law at its worst treats legal doctrine as infinitely manipulable, capable of being twisted cynically in whatever direction serves the client's desires. Had the OLC lawyers adhered to the former standard, they could have stopped the CIA abuses in their tracks. Instead, they used law not as a check on power but to facilitate brutality, deployed against captive human beings who had absolutely no other legal recourse.

In light of these actions, it is not enough to order a cessation of such tactics, and a limited investigation of CIA agents who may have gone beyond the OLC guidelines. Official recognition that the OLC guidelines were themselves illegal is essential if we are to uphold a decent standard of law. Official repudiation is also critical if we are to regain respect around the world for the United States as a law-abiding nation, and if we hope to build meaningful safeguards against this kind of descent into cruelty happening again.

Moreover, this is not just a matter of what's right from the standpoint of morality, history, or foreign relations. The United States is legally bound by the Convention Against Torture to submit any case alleging torture by a person within its jurisdiction "to its competent authorities for the purpose of prosecution." President Obama and Attorney General Holder have both stated that waterboarding is torture. Accordingly, the United States is legally obligated to investigate not merely those CIA interrogators who went beyond waterboarding, but the lawyers and Cabinet officers who authorized waterboarding and other torture tactics in the first place.

The fact that such an investigation would be divisive, or might divert attention from President Obama's other priorities, is not an excuse for failing to fulfill this legal obligation, and not a justification for not prosecuting. The fact that a defendant has powerful allies does not warrant treating him more leniently. At the same time, prosecutors do have discretion not to bring charges for many reasons, and it would not be illegitimate to decline prosecution if a prosecutor concluded that it was not clear beyond a reasonable doubt that the lawyers and officials intended to violate the law.

But surely it is premature to make such judgments. All the facts are still not known. And even if prosecution were not warranted, it is still critical that there be some form of official acknowledgment of wrongdoing. The least President Obama should do, therefore, is to appoint an independent, nonpartisan commission of distinguished citizens, along the lines of the 9/11 Commission, to investigate and assess responsibility for the United States' adoption of coercive interrogation policies.

Only such a commission has the possibility of rising above the partisan wrangling that any attempt to hold accountable high-level officials of the prior administration is certain to set off. The facts that emerge should point to the appropriate response—whether a congressional resolution, disbarment proceedings against the lawyers, civil actions for money damages, or criminal prosecutions. Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official US policy, the United States' commitment to the rule of law will remain a hollow shell—a commitment to be honored only when it is not inconvenient or impolitic to do so.

— September 10, 2009

Notes

^[1]Office of Inspector General, "Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003)," May 7, 2004, available at www.aclu.org/oigreport/.

^[2]All of the OLC memos discussed here are reproduced in The Torture Memos: Rationalizing the Unthinkable, edited by David Cole and with a foreword by Philippe Sands, just published by the New Press, with the exception of a July 2007 memo that was released only on August 24, 2009.

^[3]See, for example, Rogers v. Richmond, 365 US 534 (1961); Ashcraft v. Tennessee, 322 US 143 (1944).

^[4]"Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, Re: Application of the War Crimes Act, the Detainee Treatment Act, and Common Article 3 of the Geneva Conventions to Certain Techniques that May Be Used by the CIA in the Interrogation of High Value al Qaeda Detainees," July 20, 2007, available at www.usdoj.gov/olc/docs/memo-warcrimesact.pdf.

Deception Over Lockerbie? - The New York Review of Books

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By Malise Ruthven

In his new book Terrorism: How to Respond,^[*] Richard English, a historian who has written the definitive history of the IRA, argues that terrorism is best understood as a "subspecies of war" that embodies—among other things—"the exerting and implementing of power, and the attempted redressing of power relations."

The furor over the Scottish government's decision to release Abdel Basset Ali al-Megrahi, the convicted Lockerbie bomber, and the speculations surrounding the whole affair prove his point. The festive welcome Megrahi received from President Muammar Qaddafi himself on arrival in Libya was met with predictable fury on both sides of the Atlantic. The explosion aboard Pan Am Flight 103 on December 21, 1988, which caused the Boeing 747 to disintegrate in flames over the Scottish town of Lockerbie, was the worst terrorist atrocity ever to have been perpetrated on British soil. Two hundred and seventy people died, including eleven Lockerbie residents. The majority of the victims, 189 of them, were US citizens returning for the Christmas holidays.

President Obama's spokesman, Robert Gibbs, described the jubilant crowds that greeted the frail figure of the returning Libyan intelligence agent as "outrageous and disgusting." Robert Mueller, director of the FBI—who as assistant attorney general had been involved in the investigation that led to Megrahi's indictment and conviction by a Scottish court sitting in the Netherlands—took the unusual step of releasing the text of a letter he had sent to the Scottish justice secretary, Kenny MacAskill, in which he complained that MacAskill's action, "blithely defended on the grounds of 'compassion,'" would give "comfort to terrorists around the world."

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The devolved Scottish government —under the Scottish National Party (SNP), which has announced its intention to hold a referendum on full independence—has robustly denied claims that business interests or pressures from the UK government had any part in its decision to release Megrahi. Its position was supported—after a lengthy and deafening silence—by British Prime Minister Gordon Brown, whom the opposition has accused of "double-dealing" over the Lockerbie affair:

I made it clear that for us there was never a linkage between any other issue and the Scottish government's own decision about Megrahi's future.... On our part there was no conspiracy, no cover-up, no double-dealing, no deal on oil, no attempt to instruct Scottish ministers, no private assurances by me to Colonel Qaddafi. We were absolutely clear throughout with Libya and everyone else that this was a decision for the Scottish government.

In an effort to support their position, the UK and Scottish governments released a pile of documents, including previously leaked correspondence between MacAskill and Jack Straw, his counterpart in London. The British justice secretary explained that in his dealings with the Libyan authorities he had been unable to persuade them to exclude Megrahi from a prisoner transfer agreement between Britain and Libya under which prisoners would serve their sentences in their respective countries. The documents also reveal that when the Libyan minister for Europe told his British counterpart that Megrahi's death in a Scottish prison would have "catastrophic effects" on UK–Libyan relations, he was told that "neither the Prime Minister nor the Foreign Secretary would want Mr. Megrahi to pass away in prison but the decision on transfer lies in the hands of Scottish ministers."

In fact the medical prognosis giving Megrahi less than three months to live provided both governments with a loophole in their dealings with Libya. Scottish prison service guidelines state that compassionate release "may be considered where a prisoner is suffering from a terminal illness and death is likely to occur soon," with a life expectancy of around three months an "appropriate time" to consider release. Doctors had earlier concluded that Megrahi might have a year or more to live, rendering him ineligible for release in time for the celebrations marking the fortieth anniversary of the coup on September 1, 1969, that overthrew the Libyan monarchy and brought Qaddafi, a twenty-seven-year-old army captain, to power.

The three doctors—two British and one Libyan—who produced a revised prognosis in July were paid by the Libyan government. One of them, the British oncologist Professor Karol Sikora, medical director of CancerPartners UK, a private health care organization, admitted that the period of three months had been suggested by the Libyans. After examining Megrahi in prison and looking at the clinical details "in much greater depth" than previous doctors, Sikora concluded that Megrahi's tumor "was behaving in a very aggressive way, unlike [tumors afflicting] most people with prostate cancer" and that "the three-month deadline seemed about right." The Libyan doctor concurred. The third doctor would only say that Megrahi "had a short time to live." After it became clear that Megrahi could not be excluded from the prisoner transfer agreement, it seems the Scottish and British governments actively encouraged him and his legal team to seek a release on compassionate grounds.

At stake, for the British, were contracts for oil and gas exploration worth up to £15 billion ($24 billion) for British Petroleum (BP), announced in May 2007, as well as plans to open a London office of the Libyan Investment Authority, a sovereign fund with £83 billion ($136 billion) to invest. Libya refused to ratify the contracts until Straw abandoned his insistence on excluding Megrahi from the prisoner transfer agreement. Shortly after Brown's statement, Straw admitted—in apparent contradiction to his prime minister—that oil had been "a very big part" of his negotiations. British leaders were also warned that trade deals worth billions could be canceled. "The wider negotiations with the Libyans are reaching a critical stage," Straw wrote to MacAskill in December 2007, "and in view of the overwhelming interests for the United Kingdom I have agreed that in this instance the PTA [prisoner transfer agreement] should be in the standard form and not mention any individual." Within six weeks of the British government's concession, Libya had ratified the BP deal. The prisoner transfer agreement was finalized in May of this year, leading to Libya formally applying for Megrahi to be transferred to its custody.

For the SNP government in Edinburgh, the "compassion loophole" made it possible to avoid authorizing Megrahi's release under an agreement negotiated by London. The decision was widely condemned in Scotland, with the minority SNP administration losing a vote by 73–50 in the Scottish parliament on a government motion that the release of Megrahi on compassionate grounds was "consistent with the principles of Scottish justice." But there was a further twist to this story. Before his release from Greenock prison near Glasgow and his flight to Tripoli in a chartered Libyan jet, Megrahi agreed to drop his appeal against the life sentence he received from the specially convened Scottish court sitting at Camp Zeist in the Netherlands in 2001.

Megrahi has always insisted on his innocence, and doubts about his conviction have been expressed by several influential figures, most notably Dr. Jim Swire, a spokesman for the UK families of Flight 103, whose daughter Flora died in the crash, and Professor Hans Köchler, official UN observer at Megrahi's trial at Camp Zeist. In his reports to the UN secretary-general, Köchler deplored the political atmosphere of the trial and the failure of the court to consider evidence of foreign (i.e., non-Libyan) government involvement that formed part of a special defense—inculpating others—that is available under Scottish law.

He was even more forthright in condemning the rejection of Megrahi's first appeal in March 2002—calling it a "spectacular miscarriage of justice"—which took place at the same time as discussions with Libya over compensation for the victims' families. The presence of a Libyan "defense support team" hampered the efforts of the Scottish defense lawyers, who failed to raise vital questions about the withholding of evidence and the reliability of witnesses. Two notable omissions Köchler highlighted were the alleged coaching of a key prosecution witness by Scottish police and the appeal court's failure to consider evidence of a break-in at the baggage storage area in London's Heathrow airport on the night before the bombing.

Conspiracy theories have plagued the bombing ever since the clearing-up operation when unidentified Americans, thought to be CIA agents, were seen sorting through the debris alongside officially authorized Scottish police. The most plausible theories do not necessarily exonerate Megrahi, but do suggest that at most he was little more than a small cog in a much larger and more complex machine.

A widely held suspicion at the beginning of the investigation pointed toward the culpability of a Palestinian faction, the Popular Front for the Liberation of Palestine–General Command (PFLP-GC), working under the protection of Syria. The theory held that the PFLP-GC, who specialized in aircraft hijackings using semtex bombs concealed in tape recorders, may have been "sub- contracted" by Syria's Iranian allies to bring down Pan Am Flight 103 in revenge for the accidental shooting down of an Iranian civilian airliner by the USS Vincennes in July 1988, just months before the bombing of Flight 103.

At the time Iran's Supreme Leader Ayatollah Khomeini vowed that the skies would "rain blood" in revenge for the loss of 290 civilian lives, including 66 children. Two defectors from Iranian intelligence agencies—or alleged defectors—subsequently accused the Iranian government of being behind the attacks for which the PFLP-GC was said to have been paid $10 million. Some analysts have argued that leads pointing toward the Palestinian-Syrian-Iranian connection were purposefully deflected after the 1990 Iraqi invasion of Kuwait, when Syria became—albeit temporarily—a US coalition ally. Libya, the only Arab state to support Saddam's invasion, remained a more tenable target for exacting exemplary justice.

After a decade of sanctions and interventions by UN Secretary-General Kofi Annan and South African President Nelson Mandela, the Libyans in 1999 gave up Megrahi and his alleged associate Lamin Khalifah Fhimah, who would later be acquitted. The case against Megrahi hinged on a fragment recovered at Lockerbie of a timing device traced to a Swiss manufacturer, Mebo. The firm had sold timers to Libya that differed in design from those allegedly used in cassette bombs of the type attributed to the PFLP-GC. The clothing in which the bomb was said to have been wrapped inside a suitcase was traced to a shop in Malta that Megrahi was alleged to have visited, traveling under an assumed name, on December 20–21, 1988.

Although the evidence was purely circumstantial (there was no direct evidence that either he or Fhimah had placed the device aboard the aircraft), the judges wrote in their decision that the preponderance of the evidence led them to believe that Megrahi was guilty as charged. He was sentenced to life imprisonment, with a recommended minimum of twenty-seven years, to be served in a Scottish jail. A major reason for US anger at Megrahi's release has been the repeated assurances given by the British government that he would serve out his full term.

In December 2003, as part of its campaign to end UN sanctions and abandon its pariah status, Libya accepted responsibility for the bombing, and agreed to pay compensation to the victims' families—although it continued to maintain Megrahi's innocence, as he had done throughout his trial. His position divided observers: some see his continuing denial as the standard response of a professional intelligence officer, as summarized by the unofficial motto of the CIA's Office of Technical Services—"admit nothing, deny everything, make counter-accusations."

Others, including a significant group of Scottish lawyers and laypersons, take a different view. In June 2007, after an investigation lasting nearly four years, the Scottish Criminal Case Review Commission delivered an eight-hundred-page report—with thirteen annexes—that identified several areas where "a miscarriage of justice may have occurred" and referred Megrahi's case to the Court of Criminal Appeal in Edinburgh. The commission considered evidence that cast doubt on the dates on which Megrahi was supposed to have been in Malta as well as the testimony of the Maltese shopkeeper who claimed to have sold clothing to Megrahi. He had changed his testimony several times, and had been shown Megrahi's photograph before picking him out of a line-up. It was expected that the fresh appeal would also consider new evidence about the timing device, as well as the reported break-in at Heathrow airport, which indicate that the bomb could have been planted in London rather than in a suitcase checked from Malta to New York, as the prosecution had claimed.

In July 2007, Ulrich Lumpert, a former engineer at Mebo and a key technical witness, admitted that he had committed perjury at the Camp Zeist trial. In a sworn affidavit he declared that he had stolen a handmade sample of an MST-13 Timer PC-board from Mebo in Zurich and handed it to an unnamed official investigating the Lockerbie case. He also affirmed that the fragment of the timer presented in court as part of the Lockerbie wreckage had in fact been part of this stolen sample. When he became aware that this piece was to be used as evidence for an "intentionally politically motivated criminal undertaking," he said, he decided to keep silent out of fear for his life.

Although it would have been necessary for Megrahi to drop his appeal under the prisoner transfer scheme, this was not a precondition for release on compassionate grounds. Nevertheless it seems likely that he was pressured into abandoning the appeal. Oliver Miles, a former British ambassador to Libya, has suggested that the dropping of the appeal, rather than "a deal involving business," was the real quid pro quo behind Megrahi's release. According to Miles, Scottish legal sources had been talking of a mood of "growing anxiety in the Scottish justice department that a successful appeal...would severely damage the reputation of the Scottish justice system."

Although many British and American victims' families are demanding a fuller inquiry, Megrahi's decision means the end of any formal legal investigation into the Lockerbie atrocity. However, this is unlikely to be the end of the controversy, whatever the unpublicized hopes of the Scottish, UK, and US governments. Mark Zaid, the Washington lawyer who represents thirty American families and launched a lawsuit against the Libyan government, securing compensation of up to $2.7 billion, has announced that he is filing suit under the Freedom of Information Act to try to ascertain what agreements and discussions have taken place between the US and the UK, not just with respect to the release of Megrahi, but dating back to before the 1991 indictment. "It is ironic," he told the BBC, "that in the latest release of documents from the British authorities the US viewpoint was redacted [i.e., parts of it were omitted] at the specific request of my government."

In retrospect, the connection between the downing of the Iranian Airbus in July 1988 and of Pan Am Flight 103 five months later has never been adequately established, and probably never will be. In settlements ending hostilities, justice is often the victim.

— September 9, 2009

The Afghanistan Impasse - The New York Review of Books

Image via Wikipedia

By Ahmed Rashid

To Live or to Perish Forever: Two Tumultuous Years in Pakistan

by Nicholas Schmidle

Henry Holt, 254 pp., $25.00

Seeds of Terror: How Heroin Is Bankrolling the Taliban and al Qaeda

by Gretchen Peters

Thomas Dunne/St. Martin's, 300 pp., $25.95

On August 5, Baitullah Mehsud, the all-powerful and utterly ruthless commander of the Pakistani Taliban, was killed in a US missile strike in South Waziristan. At the time of the strike, he was undergoing intravenous treatment for a kidney ailment, and was lying on the roof of his father-in-law's house with his young second wife. At about one o'clock that morning, a missile fired by an unmanned CIA drone tore through the house, splitting his body in two and killing his wife, her parents, and seven bodyguards.

His death marked the first major breakthrough in the war against extremist leaders in Pakistan since 2003, when several top al-Qaeda members based in the country were arrested or killed. Over the last few years, Mehsud's estimated 20,000 fighters gained almost total control over the seven tribal agencies that make up the Federal Administered Tribal Areas (FATA) bordering Afghanistan.

Mehsud's death plunged the Pakistani Taliban, composed of some two dozen Pashtun tribal groups, into an intense struggle over leadership, creating an opportunity for the CIA and Pakistan's Interservices Intelligence (ISI) to take action against the extremists. After ousting in April and May the militants who had seized the Swat valley—which is not in the tribal areas but north of the capital city of Islamabad—the Pakistani army is now pursuing the Pakistani Taliban with more determination: in mid-August, two of Mehsud's senior aides were arrested, one in FATA and the other in Islamabad while seeking medical treatment. The US is anxious for Pakistan to continue its pressure by launching an offensive in Waziristan, the region in the southern part of FATA—first in South Waziristan to eliminate the Pakistani Taliban there and then in North Waziristan, where al-Qaeda and Afghan Taliban leaders are based.

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In North Waziristan two key Afghan Taliban networks—one led by the Pash- tun warlord Jalaluddin Haqqani and his son Sirajuddin Haqqani, and the other by the Muslim extremist Gulbuddin Hekmatyar—have been on the payroll of Pakistan's ISI since the 1970s and the ISI still allows them to operate freely. Al-Qaeda militants also live in North Waziristan, as do militant groups of Pakistani Punjabis, who launch terrorist attacks in India and Afghanistan.

The key question is whether the Pakistani army and the ISI, which have intermittently supported the Afghan and Pakistani Taliban since 2001, can now make a strategic shift—turning decisively to eliminate not only the Pakistani Taliban but also the Afghan Taliban and al-Qaeda. Until now the Pakistani army has considered the Afghan Taliban a strategic asset in its battle against India and other regional rivals for influence in Afghanistan.

Success in eliminating these terrorist networks is vital for the US and the world—even more so now that the rigged presidential elections in Afghanistan in late August have created a deep political and security crisis for Afghans and Western forces there. Every day the evidence of electoral fraud has mounted, with videos posted on the Internet showing, for example, a local election chief stuffing ballot boxes.

Fighting Over the Spoils in the Tribal Areas

Baitullah Mehsud became Pakistan's most-wanted leader after Taliban forces allied with him took control of the Swat valley in April. They were pushed out of the valley by the army in June after fierce fighting that left 312 soldiers, 2,000 militants, and an unknown number of civilians dead. Mehsud also became a target for CIA-launched drones, after the US decided last year to target Pakistani Taliban leaders along with those from the Afghan Taliban and al-Qaeda.

Mehsud was close to and trusted by Osama bin Laden; by Mullah Omar, the leader of the Afghan Taliban; and by Jalaluddin Haqqani. He gave them support, troops, and facilities for their various operations. By fighting off the Pakistani army and expanding his power across Pakistan's tribal areas, he gave al-Qaeda and the Afghan Taliban a hugely expanded sanctuary from which to operate and gather recruits for their war in Afghanistan.

Among Mehsud's innovations were the extremely efficient new systems he set up to train suicide bombers, some as young as eleven, and to produce vast quantities of land mines and improvised explosive devices (IEDs), which are being used in both Afghanistan and Pakistan. He also oversaw a criminal network of kidnapping for ransom, which netted him a war chest estimated in the tens of millions of dollars. Seventy prominent Pakistanis have been kidnapped this year throughout Pakistan, with ransoms—as high as one million dollars—handed over in FATA.

With the control of money, men, and territory at stake, there was a fierce struggle among various Pashtun tribal contenders to succeed Mehsud as leader of the Pakistani Taliban. The succession was also heavily influenced by al-Qaeda and the Afghan Taliban. Mullah Omar and Sirajuddin Haqqani sent several delegations to South Waziristan to influence Pakistani Taliban leaders.

Finally on August 26 a new power-sharing agreement was worked out between the two main contenders: Hakimullah Mehsud, twenty-eight, a ruthless Mehsud protégé who took responsibility for a series of suicide bombings in Pakistan earlier this year, became the new chief of the Pakistani Taliban; while his main rival, Waliur Rehman, who had acted as Mehsud's deputy, will head the Taliban in South Waziristan, where most of the fighters are based. Both men promised a new bombing campaign in Pakistan and increased support to the Afghan Taliban. One day later, on August 27, they fulfilled their promise when a suicide bomber at Torkham—a town that straddles a major crossing on the Afghanistan–Pakistan border—attacked a police checkpoint on the road used by NATO convoys to enter Afghanistan, killing twenty-two people. Three days after that, on August 30, a suicide bomber killed fifteen policemen in Swat.

The Reconquest of Swat

Regrouped under its new leadership, the Pakistani Taliban will continue to pose a major threat to the civilian government of President Asif Ali Zardari and to the country's military leaders, who are the real decision-makers in Pakistan. The army's recent counterinsurgency campaign in the Swat valley was its first success since 2001, allowing the more than two million people who had fled the region to return home. Mingora, the main town in Swat, is once again open for business and the hundreds of schools destroyed by the Taliban have restarted under tents.

However, the Swat campaign has left gnawing doubts. None of the twenty militant commanders operating there has been killed or captured. The local Taliban chief Maulana Fazlullah is also at large, although suspected of being badly wounded. Taliban attacks against schools and police stations resumed in late August, proving that many Taliban are still hiding out in the mountains.

Still, the army has clearly adopted a new and much tougher strategy for eliminating the Pakistani Taliban and establishing greater cooperation between the CIA and the ISI in the tribal areas. This progress has been much appreciated by US officials. On a visit to Islamabad in mid-August Richard Holbrooke, the US special envoy for Afghanistan and Pakistan, told me that Pakistan's cooperation in fighting the Pakistani Taliban was very welcome, but that the army now has to go into South Waziristan and clear out the militants just as it did in Swat. In the meantime the US military is providing limited fresh equipment and funds to the army for just such an operation.

During August, other Western officials came to Islamabad to deliver the same message. In addition to Holbrooke, they included British Foreign Secretary David Miliband and two senior US commanders, General David Petraeus, head of US Central Command, and General Stanley McChrystal, the new head of US and NATO forces in Afghanistan. They all urged the government and army to use this moment to turn decisively against the terrorist holdouts in the tribal areas and in Waziristan.

However, Pakistan's generals made it abundantly clear that they will not invade South Waziristan for the moment. "It's going to take months" to launch a ground offensive, the senior commander in the area, Lieutenant General Nadeem Ahmad, told reporters after meeting with Holbrooke on August 18. General Ahmad said that all the army can do now is choke off supplies to South Waziristan by shutting down the roads, while planes and artillery bombard terrorist hideouts—but from outside South Waziristan.

The army would prefer to wait and see what happens in Waziristan and also in Afghanistan. It is hesitant to move into the tribal areas, where since 2004 it has been defeated by the guerrilla tactics of the Taliban and their advantage in the area's harsh mountainous terrain. Pakistan continues to pursue a policy of containing the Taliban fighters on the Afghan border rather than eliminating them. That clearly will not satisfy Western governments and military leaders since it leaves NATO forces in Afghanistan vulnerable to the inflow of men, supplies, and suicide bombers from the tribal areas of Pakistan.

Senior Pakistani officials say they will only be able to adopt a new strategy against the Taliban when India changes its current policy toward Pakistan and Kashmir. In Swat the army succeeded because it made use of Pakistani troops transferred from the Indian border, where 80 percent of the army is based. The key to launching a Pakistani offensive in the tribal areas is for the Americans to help improve Pakistan's relations with New Delhi, so that the army can move more of its troops to the Afghan border.

India is not helping. Prime Minister Manmohan Singh said on August 17 that Pakistan-based terrorist groups were plotting more attacks against India. Last November the Pakistan-based Lashkar-e-Taiba (Army of the Pure) carried out attacks in Mumbai that killed 166 people. Lashkar is a group that is distinct from the Taliban and has been particularly active against targets in India and Kashmir. Indian officials now say that Hafiz Saeed, the Lashkar leader who lives undisturbed in Lahore, was "the brain" behind the Mumbai attack. They demand that he be put on trial.

Pakistan is refusing to clamp down on Lashkar or put Saeed behind bars. Lashkar is the best disciplined, organized, and loyal of the jihadi groups that the ISI has trained and sponsored since the 1980s, and it has always targeted India rather than the Pakistani army. The army will do everything to preserve Lashkar, as long as it believes there is a threat from India. Similarly, Pakistan's continued support for the Afghan Taliban is based on countering India's influence in Afghanistan and on having an alternative force that Pakistan can count on, in case the Americans leave Afghanistan.

In short, the strategy of the Pakistani military to selectively use Islamic extremists both as a tool in its foreign policy arsenal against India and to gain influence in Afghanistan is not going to change in a hurry. The Obama administration's main strategy for the moment is hand-holding—it wants to keep engaging with the Pakistani leaders to try to get them to change course. At least one senior US official arrives in Islamabad every other week to argue the American case.

The Afghan Elections

Pakistan's safe havens for the Afghan Taliban have been to a large extent responsible for their revival and growing dominance across Afghanistan and for the rising death toll among NATO forces. But the Taliban were not the major cause of the political crisis that enveloped Afghanistan after the August 20 presidential elections.

US officials told me in April 2008 that President Bush had been warned by his military commanders that Afghanistan was going from bad to worse. More troops and money were needed; reconstruction was at a standstill; pressure had to be put on Pakistan; the elections in April 2009 should be indefinitely postponed. Bush ignored all the advice except for asking the Afghans to postpone the elections until August.

He left everything else to his successor to sort out. When Obama took over in January, the crisis was much worse and Pakistan and Afghanistan immediately became his highest foreign policy priorities. Obama added 21,000 more troops, committed billions of dollars to rebuild Afghan security forces and speed up economic development, and sent hundreds of American civilian experts to help rebuild the country. He has attempted to make the anti-narcotics policy more effective and to involve neighboring countries in a regional settlement. It's an assertive and possibly productive new strategy, but the Obama administration has had neither the time nor the resources to implement it.

The depth of the opium problem, for example, has recently been exposed by Gretchen Peters, who in her book Seeds of Terror describes how opium sales have ballooned since 2001, because of either a lack of a coherent strategy by the US or the constant bickering over a strategy between the US and its NATO partners, particularly Britain. Bush refused to use the US military—the only capable force on the ground—to interdict drug convoys in Afghanistan and arrest or kill drug lords, many of whom were easily identifiable. Only last year did the Department of Defense agree to use the military for these purposes. During the last six months there have been a series of raids by US Special Forces and Afghan commandos that have netted large amounts of opium, chemicals that turn it into heroin, and many of the drug traffickers. Afghanistan today provides 93 percent of the world's heroin. As Peters shows, from the poppy growers, to the Taliban and other local powers, to the drug lords and their allies in government, the influence of opium money pervades Afghan life.

In fact, most of this year has been taken up with preparing for the Afghan elections and trying to ensure sufficient security for them. Everything else has had to be put on hold. In private moments Holbrooke has regretted how the elections have distracted attention from putting into effect Obama's new strategy. At home Obama has not had the time to show that his policy is the right one to follow, and now the elections themselves are being exposed as riddled with fraud.

Another complicating issue for Obama has been the troubled US relationship with President Hamid Karzai, who in the spring was convinced that Obama and Holbrooke wanted to replace him and hold the elections under a caretaker president. That was never the case, but Karzai's paranoia, which is fostered by some of his aides and brothers, who drum up astounding conspiracy theories about US or British intentions, got the better of him.

That the elections were subject to extensive rigging by Karzai's supporters was partly the result of his belief that the Americans were backing one of the two strongest opposition figures, either Abdullah Abdullah or Ashraf Ghani Ahmadzai, which was again not the case. In fact, with so much now invested in Afghanistan, Obama and Holbrooke had every incentive to ensure that the election results were credible. What is now clear, however, is that the flagrantly dishonest elections have undermined the government and its Western backers, jeopardized future Afghan trust in democracy, and given the Taliban more reason to claim they are winning.

For much of this year the Taliban have been on the offensive in Afghanistan. Their control of just thirty out of 364 districts in 2003 expanded to 164 districts at the end of 2008, according to the military expert Anthony Cordesman, who is advising General McChrystal. Taliban attacks increased by 60 percent between October 2008 and April 2009. Forty-seven American soldiers died in August, making it the deadliest month in the war for the US Army. Forty-four were killed in July.

In August, moreover—as part of their well-planned anti-election campaign—the Taliban opened new fronts in the north and west of the country where they had little presence before. On election day in Kunduz in the far northeast of the country, considered to be one of the safest cities in Afghanistan, the Taliban fired fifty-seven rockets. The US military has acknowledged the gravity of the situation. "It is serious and it is deteriorating.... The Taliban insurgency has gotten better, more sophisticated" in their tactics, Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, told CNN on August 23.

Both before and after the elections there were highly visible Taliban attacks in cities including Kabul and Kandahar, along with well-laid ambushes, attacks against security forces, and extensive use of IEDs. A month before the elections thousands of US, British, and Afghan forces launched an offensive in Helmand province in southern Afghanistan in order to regain territory, block supply routes from Pakistan, and release villagers from the clutches of the Taliban so that they could vote.

Instead, voter turnout was estimated by Western officials who had done their own investigation at between 1 and 5 percent in most parts of Helmand and Kandahar—before high-intensity ballot stuffing for Karzai began in the late hours of August 20. According to Western diplomats, Karzai loyalists also created hundreds of fake polling sites, from which many thousands of votes were recorded in favor of the incumbent. In one southern district, the polling sites were shut down and the entire vote of 23,900 ballots was forged for Karzai. In Babaji, a town in Helmand that was reclaimed by British forces with the loss of four soldiers this month, only 150 people voted, out of 80,000 who were eligible. The British suffered thirty-seven dead and 150 wounded in the six-week Helmand campaign— ostensibly to provide security for the vote. It will be difficult to maintain the morale of Western troops for long under such circumstances.

The Taliban had threatened to derail the elections and, to a considerable degree, they did, because much of the terrified population did not vote. The turnout is expected to be between 30 to 40 percent, much less than the 70 percent who voted in 2004. There were four hundred Taliban attacks on election day and many polling stations never opened.

How Could the Rigging Have Happened?

Forty candidates ran against Karzai. His main opponent, Dr. Abdullah Abdullah, and other candidates produced overwhelming evidence of cheating. By the end of August the Electoral Complaints Commission had received over 2,500 complaints, of which more than 570 could directly affect the results. It will take weeks to go through all these claims.

Still, within hours of the polls closing, the US, NATO, the European Union, and the UN congratulated everyone on a successful election. Their words were aimed at the Taliban, who had failed to stop it; but they sounded hollow and deceitful to Afghans who were more interested in the credibility of the election.

The rigging defied expectations. There were hundreds of foreign observers from the US and other embassies. Both UN officials and a European Union delegation were assigned months ago to make sure this would be a credible election. Afghans and other experts were warning the embassies about possible rigging. Abdullah Abdullah painted a bleak future for the country if the West did not recognize the fraud. "The fact is that the foundations of this country have been damaged by this fraud, throwing it open to all kinds of consequences, including instability. It is true that the Taliban are the first threat but an illegitimate government would be the second," said Abdullah to reporters in Kabul on August 29. Yet the entire Western community in Afghanistan was caught napping by the widespread fraud. In fact, as I recently wrote elsewhere, the fraud was assured months ago when Karzai began to align himself with regional warlords, drug traffickers, and top officials in the provinces who were terrified of losing their lucrative sinecures.

The biggest mistake may have been made by the UN in not running the elections as it did in 2004 but instead handing them over to the Afghan-run "Independent Election Commission," which was beholden to Karzai, who appointed the members. On September 8, a UN-backed commission announced that it had found "clear and convincing evidence of fraud" and ordered a partial recount of returns that claimed Karzai had received 54 percent of the vote. If Karzai does not receive over 50 percent of the vote in the final count then there will be a runoff election in October. If Karzai wins over 50 percent his legitimacy will be doubted by many Afghans while the credibility of the US and the other nations involved in the elections will be even more damaged.

An October runoff between Karzai and Abdullah may win back the credibility of the democratic process if that election is more tightly run, but it will leave the country paralyzed for most of the next two months. During that time there could be severe ethnic tensions. Karzai is a Pashtun while Abdullah's mother is a Tajik. We can expect local conflicts, assassinations, and a breakdown in law and order—while the Taliban will further justify their condemnation of democracy as an infidel conspiracy. The best option would be for the US to pressure Karzai to accept a national government that would include Abdullah and other opposition candidates.

In Washington President Obama is under fire from the left of the Democratic Party for becoming another war president and from right-wing Republicans for being overly ambitious in his plans for Afghanistan. Increasingly Americans are getting fed up with a war that has gone on longer than the US involvement in the two world wars combined. For the first time, polling shows that a majority of Americans do not approve of Obama's handling of Afghanistan. Yet if it is to have any chance of success, the Obama plan for Afghanistan needs a serious long-term commitment—at least for the next three years. Democratic politicians are demanding results before next year's congressional elections, which is neither realistic nor possible. Moreover, the Taliban are quite aware of the Democrats' timetable. With Obama's plan the US will be taking Afghanistan seriously for the first time since 2001; if it is to be successful it will need not only time but international and US support—both open to question.

After Obama's injection of 21,000 troops and trainers, total Western forces in Afghanistan now number 100,000, including 68,000 US troops. It is likely that General McChrystal will soon ask for more. Obama's overall plan has been to achieve security by doubling the Afghan army's strength to 240,000 men and the police to 160,000; but these are tasks that would take at least until 2014 to complete, if indeed they can be carried out. Meanwhile the military operation in Afghanistan is now costing cash-strapped US taxpayers $4 billion a month.

Across the region many people fear that the US and NATO may start to pull out of Afghanistan during the next twelve months despite their uncompleted mission. That would almost certainly result in the Taliban walking into Kabul. Al-Qaeda would be in a stronger position to launch global terrorist attacks. The Pakistani Taliban would be able to "liberate" large parts of Pakistan. The Taliban's game plan of waiting out the Americans now looks more plausible than ever.

For all these reasons it is important to recognize that if Western forces are to regain the initiative in Afghanistan, they must deal with the situation in Pakistan, which needs to eliminate sanctuaries of both the Pakistani and Afghan Taliban forces within the country. The Pakistani military will bide its time until the Americans are really desperate, and then the army will demand its price from the US—a price to be measured in financial and military support.

Balochistan

Much has been made of Pakistan as a potential failed state on the verge of breakup, yet if there is even a remote chance of that happening it will not be because of the Taliban, but because of an underlying crisis that has been studiously ignored by the West—the separatist movement in Balochistan. The issue is well described in the best chapter of a new book on Pakistan by Nicholas Schmidle, To Live or to Perish Forever: Two Tumultuous Years in Pakistan.

Balochistan is Pakistan's largest province, comprising 48 percent of its territory and sharing a long border with southern Afghanistan; but it is a land of rugged mountains and deserts, with a population of only 12 million people. Ever since Pakistan's creation in 1947, the Baloch tribes have been in revolt against what they see as the chauvinism and denial of their rights by the Pakistani army in favor of Punjab, the country's most populous province, with 86 million people.

In five major insurgencies against the army, the Baloch have demanded greater autonomy, royalties for the province's gas, development funds, and genuine political representation. The fifth insurgency began in 2005 and has intensified because of the brutal repression and hundreds of "disappearances" of Baloch nationalists, for which the army under former President Pervez Musharraf was responsible.

Many young Baloch are now demanding their own state. In August, with the start of the new school year, Baloch students refused to hoist the Pakistani flag or sing the national anthem. Ten non-Baloch college principals were assassinated by guerrillas the same month, creating panic among the Punjabi settler population. The Khan of Kalat, Mir Suleman Dawood, the titular chief of chiefs of all the Baloch tribes—whose ancestors once ruled Balochistan—announced on August 11 the formation of a council for "an independent Balochistan"; he rejected any reconciliation with the government unless there was international mediation from the UN. According to human rights activists, hundreds of Baloch nationalists have disappeared—they are believed to have been secretly arrested and tortured by the military but their whereabouts remain unknown.

Schmidle meets the Khan and other Baloch chiefs and, with no small courage, follows them as they are trailed by the ISI. "By the end of 2006, nearly every nationalist leader in Balochistan had been killed, arrested, or placed under house arrest," he writes. The Khan of Kalat describes Balochistan's mineral wealth to Schmidle: "We are sitting on gold and anytime we speak up and ask for due compensation, we get a bloody spanking."

The civilian government under President Zardari arranged a cease-fire with the guerrillas last year but failed to follow it up with serious talks, and guerrilla attacks have resumed. Pakistan's past military rulers have ignored the fact that their country is a multiethnic, multireligious state and the policies of an overtly centralized military do not work. The army's refusal to acknowledge this led to the loss of East Pakistan—now Bangladesh—in 1971. Tomorrow it could be Balochistan.

Schmidle has written a picaresque book about what Pakistan looks like today. Like a good film director he presents extraordinary pictures of political mayhem and violence interspersed with dialogue, solid character actors, and tightly focused close-ups of bad guys such as Maulana Fazlullah, the leader of the Swati Taliban—"a short man with large gaps between his teeth,...wavy hair,...a bulky, black turban and a goofy smile."

However, like many movies, Schmidle's book lacks a coherent plot. Each chapter serves up a separate scene or subject, but no common thread or larger themes and ideas link the chapters together. In fact there is little that sets the book apart from the best recent Western newspaper reporting on Pakistan. Schmidle's prose can be brilliant but fails to describe the undercurrents of life in Balochistan or provide the analysis that is needed.

As early as page 8 he heralds his arrival in Pakistan with an analysis that could have been culled from any US magazine over the past three years—Pakistan as the most dangerous place on earth:

From what I gathered, there were a few essential things to know about Pakistan: the army was perpetually in charge, the intelligence agencies were a brooding and ubiquituous force, the Islamists threatened to take over, ethnic problems portended more Balkanization, corruption plagued human interaction and a modest arsenal of nuclear weapons all combined to make Pakistan the most dysfunctional—and most dangerous—country in the world.

After reading such a statement of the obvious we expect some further insights. Instead, at the end of the book, Schmidle is still asking the same questions, having found no answers:

The political, social, economic, and religious dynamics embedded in Pakistan seemed to become more and more complicated—and volatile—with time, and less and less solvable.

Foreign correspondents should not make too much of their own intrepid adventures, but this is not the case with Schmidle. He opens the book with a graphic account of his deportation from Pakistan, warning us that the book is going to be as much about him as about Pakistan. We are often told about his looks and his physique—he is six feet two with blond hair—and about the personal dilemmas that obsess him: What clothes should he wear? What color should he dye his hair? Would it be better to pretend to be Canadian rather than American? Such worries only trivialize his story.

The son of a Marine general, Schmidle, in his mid-twenties and married, arrives in Pakistan in February 2006 under a two-year grant from a Washington think tank. To his credit, he learns Urdu and travels extensively. His time in Islamabad coincides with the most tumultuous events in the country's history during the dictatorship of General Musharraf. The heart of his story is his meetings with Islamic extremists. He befriends the bespectacled, soft-spoken yet lethal religious leader Abdul Rashid Ghazi, who ran the radical Red Mosque in the center of Islamabad. Ghazi opens doors for Schmidle that lead him straight into the heart of the Islamic militancy that was beginning to grip the country in 2006. Ghazi himself is a complex character:

While Ghazi relished his al-Qaeda connections and the confidence such friends might have lent, I still found him to be surprisingly sensible and pragmatic. His eyes didn't burn with fervor. Nor did his rhetoric emanate hatred. He calmly explained the rise of anti-Americanism around the world as a product of the United States' "missed opportunity" to act as a benevolent, global leader.

Ghazi's story ends with his martyrdom once the army, after procrastinating for six months, storms the Red Mosque. One hundred militants die but hundreds of Ghazi's young followers escape the siege to become the suicide bombers that have since torn through the heart of Pakistan's cities.

Ultimately the book's strength lies in its cinematic descriptions, for example its account of the quarter in Karachi run by the political leader Altaf Hussain and his party, the Muttahida Quami Movement (MQM), which advocates preserving the ethnic identity of the Urdu-speaking minority that emigrated from India:

Whitewashed apartment blocks lined the surrounding streets. Billboards modeled Altaf's face more than they advertised products, and the MQM's white, green, and red-striped flag fluttered from lampposts, traffic lights and car antennas. Sputtering Suzuki hatchbacks circled around a dried-up fountain, the color of rain clouds. A sculpture of a clenched fist rose from the top of the fountain.

Unfortunately, strong description is not enough. Whether Pakistan's army and political leaders can deal with the threat from the Taliban and other violent forces they have themselves sustained over the years is a question that needs to be addressed more urgently than ever as the situation in Pakistan and Afghanistan deteriorates further.

—September 10, 2009

Afghan Election Mess Aiding Taliban's Propaganda - washingtonpost.com

Image by Getty Images via Daylife

Electoral Mess Plays Into Propaganda

By Craig Whitlock
Washington Post Foreign Service
Monday, September 21, 2009

KABUL, Sept. 20 -- The big winner in the fraud-ridden, never-ending Afghanistan elections is turning out to be a party not even on the ballot: the Taliban.

A stream of revelations about systematic cheating during last month's vote has given the Taliban fresh ammunition in their propaganda campaign to portray President Hamid Karzai's administration as hopelessly corrupt. Infighting among U.S., U.N. and European diplomats over whether to accept the results with Karzai the winner or force a new round of voting has also fed the Taliban line that the government in Kabul is merely a puppet of foreign powers.

Mohammad Omar, the Taliban's reclusive leader, broke his silence Saturday to denounce "the so-called elections which were fraught with fraud and lies and which were categorically rejected by the people."

In a statement released on the Internet to mark the end of Ramadan, Omar also railed against what he called "the rampant corruption in the surrogate Kabul administration, the embezzlement, drug trafficking, the existence of mafia networks, the tyranny and high-handedness of the warlords," according to a translation by the NEFA Foundation, a terrorism research group.

The problem for the Afghan government and its chief benefactor, the Obama administration, is that the Taliban's rhetoric has been echoed in recent days by U.S. and European officials, as well as some Afghan leaders, who have characterized the Aug. 20 election as a debacle and Karzai's government as inept.

"They are benefiting enormously from all this," said Haroun Mir, a political analyst and director of Afghanistan's Center for Research and Policy Studies in Kabul.

"The credibility of this election has already been highly undermined, both by the opposition and by the international community itself," he added. "Now people have lost their trust, not only with the Afghan government, but also in the NATO forces."

Taliban leaders first tried to discredit the elections by intimidating voters to stay away from the polls. It largely worked: Only 39 percent of registered voters turned out, compared to 70 percent in the 2004 Afghan elections. But self-inflicted wounds by Karzai's government in counting and policing the vote have done at least as much damage, according to diplomats and analysts in Kabul.

Public Concern

On the streets of the capital, Afghans said they were increasingly worried that the Taliban -- whose forces now control more territory than at any point since they were toppled in 2001 -- would attract more support from Afghans angry with the weak performance of the central government.

"Every day they make more propaganda against the government. This election has been a gold mine for them," said Abdul Sawad Nawabi, a 52-year-old money changer, who opposes the Taliban. "People are very concerned. It is obvious that when the government is dealing with its own problems, it just benefits the enemy."

Ghulam Abbas, 34, a clerk at a menswear store in central Kabul, said ordinary Afghans favor democracy but do not understand how an election monitored by tens of thousands of international troops and observers could have been bungled so badly.

"In every other country, the results are known in three days, five days, at least a month. It shows the weakness of our government that they still can't show a final result. And we don't know the reason. Was it too much fraud? Or something else?"

Last week, Afghan election officials released preliminary results showing Karzai with 54.6 percent of the vote, compared to 27.8 percent for his chief rival, former foreign minister Abdullah Abdullah.

But the U.N.-backed Electoral Complaints Commission is conducting an investigation into reports of fraud at several thousand precincts and has also ordered a recount of 10 percent of the ballots. Karzai must receive more than 50 percent of the final, certified vote to avoid a runoff.

Karzai supporters blamed the international media and foreign diplomats for exaggerating reports of fraud at the polls. They said the incumbent president will be declared the winner eventually, but worried that the uncertainty could endure for weeks or months.

"All the discussion about the fraud and the pressure will not help anyone, and it will only give the insurgents more opportunities," said Halim Fidai, the governor of Wardak province, just to the southwest of Kabul. "The longer this goes on, the more the enemy will try to exploit the situation."

Khalid Pashtun, a member of the Afghan parliament from Kandahar, said a dragged-out recount would only weaken the standing of the central government

"That's what we are trying to tell the commission: Please don't push this issue too much because the Taliban will just take advantage," he said. "They will constantly tell people that this is not a legitimate government."

More Work for NATO

Afghan officials said the investigations and recounts are also undermining attempts by U.S. and NATO commanders to persuade Taliban commanders and fighters to switch sides.

British Lt. Gen. Graeme Lamb, who is in charge of a NATO program to reach out to those fighting alongside the Taliban but not considered die-hard followers of the movement, said last week that many of the insurgents were "guns for hire."

"You can buy an insurgency if you have enough money," he told the Independent, a British newspaper. "It's a case of changing people's minds, changing people's perceptions.

But several Afghan officials and analysts said such an approach was doomed as long as insurgents sensed that the Afghan central government was in trouble and that NATO was losing its stomach for the war, now in it's eighth year.

"These Taliban are getting more and more powerful, so it's harder and harder to get them to come to the table," said Arsala Rahmani, a former Taliban deputy minister who now serves in the Afghan Parliament. "They have better weapons than ever and they think they are stronger than the 40 countries that are fighting against them."

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Changes in Afghanistan, Washington May Require Shift in U.S. War Strategy - washingtonpost.com

Image by Army.mil via Flickr

By Rajiv Chandrasekaran and Karen DeYoung
Washington Post Staff Writers
Monday, September 21, 2009

From his headquarters in Kabul, Gen. Stanley A. McChrystal sees one clear path to achieve President Obama's core goal of preventing al-Qaeda from reestablishing havens in Afghanistan: "Success," he writes in his assessment, "demands a comprehensive counterinsurgency campaign."

Inside the White House, the way forward in Afghanistan is no longer so clear.

Although Obama endorsed a strategy document in March that called for "executing and resourcing an integrated civilian-military counterinsurgency strategy," there have been significant changes in Afghanistan and Washington since then. A disputed presidential election, an erosion in support for the war effort among Democrats in Congress and the American public, and a sharp increase in U.S. casualties have prompted the president and his top advisers to reexamine their assumptions about the U.S. role in defeating the Taliban insurgency.

Instead of debating whether to give McChrystal, the top U.S. commander in Afghanistan, more troops, the discussion in the White House is now focused on whether, after eight years of war, the United States should vastly expand counterinsurgency efforts along the lines he has proposed -- which involve an intensive program to improve security and governance in key population centers -- or whether it should begin shifting its approach away from such initiatives and simply target leaders of terrorist groups who try to return to Afghanistan.

McChrystal's assessment, in the view of two senior administration officials, is just "one input" in the White House's decision-making process. The president, another senior administration official said, "has embarked on a very, very serious review of all options." The officials spoke on the condition of anonymity to discuss internal White House deliberations.

Obama, appearing on several Sunday-morning television news shows, left little doubt that key assumptions in the earlier White House strategy are now on the table. "The first question is: Are we doing the right thing?" the president said on CNN. "Are we pursuing the right strategy?"

"Until I'm satisfied that we've got the right strategy, I'm not going to be sending some young man or woman over there -- beyond what we already have," Obama said on NBC's "Meet the Press." If an expanded counterinsurgency strategy in Afghanistan contributes to the goal of defeating al-Qaeda, "then we'll move forward," he said. "But, if it doesn't, then I'm not interested in just being in Afghanistan for the sake of being in Afghanistan or saving face or . . . sending a message that America is here for the duration."

National security adviser James L. Jones said Sunday that McChrystal's assessment "will be analyzed as to whether it is in sync with the strategy that the president announced in March."

The assessment "could be accepted in its entirety," Jones said. Alternatively, he added, the White House could seek additional analysis from McChrystal, or Defense Secretary Robert M. Gates could issue new guidance to him about his mission and strategy.

In his 66-page assessment, McChrystal does not address other approaches to combating the Taliban. A senior U.S. military official in Kabul said the general was operating under the assumption that the earlier White House endorsement of a counterinsurgency approach "was a settled issue."

McChrystal said he thinks the way to meet the president's relatively narrow objective of denying al-Qaeda's return to Afghanistan involves a wide-ranging U.S. and NATO effort to protect civilians from insurgents by improving the Afghan government's effectiveness. That means not only more troops, but also a far more aggressive program to train Afghan security forces, promote good local governance, root out corruption, reform the justice sector, pursue narcotics traffickers, increase reconstruction activities and change the way U.S. troops interact with the Afghan population.

The implicit recommendation is that the United States and its NATO partners need to do more nation-building, and they need to do it quickly.

Improving the Afghan government, McChrystal says -- particularly the effectiveness of its security forces and its ability to deliver basic services to the population -- is as critical as offensive actions against insurgents. He defines the defeat of the Taliban not as the moment when the insurgents are vanquished, but when the international community has built a strong enough Afghan government so that "the insurgency no longer threatens the viability of the state."

Although McChrystal does not make a request for a specific number of troops in the assessment -- he has prepared, but not yet submitted to the Pentagon, another document that outlines his resource requests -- senior military officials said they expect him to call for a significant increase in forces to implement the strategy.

But senior U.S. officials in Washington contend that much about Afghanistan has changed since March, when Obama stood before a row of flags, flanked by his secretaries of state and defense, and announced the new strategy. The dynamics have even shifted since McChrystal arrived in mid-June and began his assessment.

The principal game-changer, in the view of White House officials, was Afghanistan's presidential election last month, which was compromised by fraud, much of it in support of President Hamid Karzai. Although the results have not been certified, he almost certainly will remain in office, but under a cloud of illegitimacy that could complicate U.S. efforts to promote good governance.

Congressional Democrats have also expressed new doubts about sending more forces to Afghanistan. House Speaker Nancy Pelosi (Calif.) said last week that she does not "think there's a great deal of support for sending more troops to Afghanistan in the country or the Congress." Senate Armed Services Chairman Carl M. Levin (Mich.), an influential voice on military matters, said the administration should not send additional forces until more Afghan soldiers have been trained.

The American public, which had broadly supported Obama's determination to focus on Afghanistan instead of Iraq, has begun to question the wisdom of the continued U.S. commitment. The Afghan war was deemed "not worth fighting" by 51 percent of respondents in a recent Washington Post-ABC News poll.

Obama insisted in interviews aired Sunday that he will not be rushed into making a decision.

"We're not going to put the cart before the horse and just think that by sending more troops, we're automatically going to make Americans safe," he said.

The president, one adviser said, is "taking a very deliberate, rational approach, starting at the top" of what he called a "logic chain" that begins with setting objectives, followed by determining a methodology to achieve them. Only when the first two steps are completed, he said, can the third step -- a determination of resources -- be taken.

"Who's to say we need more troops?" this official said. "McChrystal is not responsible for assessing how we're doing against al-Qaeda."

The administration's template for error is the Bush administration's policy in Iraq. Initially, a small group of White House and Pentagon officials set the policy without regard for dissenting views; in later years, President George W. Bush said he was following advice from military commanders. "We have seen what happens when an administration makes decisions by momentum and doesn't challenge underlying assumptions and . . . ensure that everybody with an equity in the matter is heard," another official said.

Among the key players shaping Obama's thinking on Afghanistan is Gates. The defense secretary has repeatedly expressed concern about the size of the military's footprint in Afghanistan even as he has acknowledged that McChrystal's plans have eased that anxiety.

Some officials charge that the military has been trying to push Obama into a corner with public statements such as those by Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, that the situation in Afghanistan is "serious and deteriorating" and "probably needs more forces." One official questioned whether McChrystal had already gone beyond his writ with public statements describing the protection of the Afghan population as more important than killing Taliban fighters.

When Obama announced his strategy in March, there were few specifics fleshing out his broad goals, and the military was left to interpret how to implement them. As they struggle over how to adjust to changing reality on the ground, some in the administration have begun to fault McChrystal for taking the policy beyond where Obama intended, with no easy exit.

But Obama's deliberative pace -- he has held only one meeting of his top national security advisers to discuss McChrystal's report so far -- is a source of growing consternation within the military. "Either accept the assessment or correct it, or let's have a discussion," one Pentagon official said. "Will you read it and tell us what you think?" Within the military, this official said, "there is a frustration. A significant frustration. A serious frustration."

Staff writer Bob Woodward contributed to this report.

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