The Rockefeller Report: Conclusions

So, what is one to conclude from the Rockefeller Report? As I have said before, the Report does, indeed generally vindicate the Bush Administration's statements about Saddam's alleged arsenal -- but only by wilfully ignoring strong evidence of pressure on the intelligence community to modify its opinions. The Report criticizes the Administration for making unsupported statements about Saddam's ties to Al-Qaeda, his intentions (especially the possibility that he might give WMD to terrorists) and prospects for post-invasion Iraq.

The Republicans on the Committee offer a dissent. They point out that many Democrats at the time (including Senator Rockefeller) had access to the same NIE as Bush and made equally alarmist statements. They also argue that Saddam's intentions and the prospects for a post-invasion Iraq are necessarily vaguer, more nebulous and more subjective than his arsenal and therefore harder to determine. Ultimately, they argue, by criticizing George Bush for disagreeing with the intelligence community on such imprecise subjects, the Democrats are saying that the intelligence community rather than elected officials should make decisions of war and peace. This would only serve to further politicize the intelligence process.

Admittedly, there is some truth to all this. Democrats did, indeed, succumb to the general atmosphere of fear-mongering, though whether they feared Saddam more than their electoral opponents is an open question. But it was the Administration, not the Democrats creating and driving the whole atmosphere of the time, and the Administration that had contact with the intelligence community and was urging them to produce ever more alarmist assessments. Of course the Republicans are right that intelligence analysts are not and should not be policy makers. Although the President and his top officials necessarily have to rely on intelligence reports for technical matters like the best estimate of Saddam Hussein's arsenal and contacts with terrorists, the ultimate decision of whether the risks of war outweigh the risks of inaction are decisions for policy makers, not the intelligence community.

But it would be nice if policy maker assessments of those risks bore some relationship to the real world. The Bush Administration based its decision to invade Iraq on the most hysterical, inflated, far-fetched speculations about the dangers of not invading and the most rosy, optimistic, ill-thought-out predictions about the aftermath of an invasion. The Republicans are right. This is not bad intelligence or even misuse of intelligence; it is simply bad policy making.

Still, the Rockefeller Report is worth something, even if ignores the question of how honest intelligence assessments were in the leadup to the war. Ever since it was determined that Saddam did not have WMD, the position of Bush supporters has been that the President was simply the innocent victim of bad intelligence. Everyone believed Saddam had such an arsenal, they argue. George Bush simply fell for bad intelligence and acted on it. If only he had known better -- well, it is not altogether clear what he would have done if he had known better.

This argument has never been convincing on its face. Before the war Administration leaders were constantly berating the intelligence community for underestimating the danger Saddam posed, urging them to to be more alarmist, and cherry picking raw data for anything to support their views. The Rockefeller Report ignores all that. However, by showing how the Administration ignored uncertainties, dissents, and caveats, insisted without support on an Iraq-Al-Qaeda alliance, and based its assessment of costs and benefits on little more than fantasy, it shows that the Administration was considerably more hawkish than the intelligence community and not simply the victim of its bad advice.

But by failing address to what extent the Bush Administration was responsible for ever more alarming intelligence estimates, the Rockefeller Report remains a whitewash. Here is an Enlightened Layperson's summary, that should make the overall trajectory clear:*

Saddam Hussein, in reality

• Did not have any nuclear, biological or chemical weapons or active programs
• Had destroyed all missiles with a range of 650-900 km
• Did unlawfully possess missiles with a range longer than 150 km
• Had unmanned aerial reconnaissance drones
• Supported secular terrorist organizations
• Did not support Al-Qaeda, although since the US invasion of Afghanistan, Al-Qaeda operatives fleeing Afghanistan had begun operating in Iraq and may have been passively tolerated.

Before the push to war began, the intelligence community estimated Saddam:

• Did not have an active nuclear program
• Did have an active biological weapons program, although details were not known
• Might have a small-scale chemical weapons program, but was unlikely to have any more than 100 tons of chemical weapons
• Unlawfully possessed missiles with ranges longer than 150 km
• Might have 25-30 pre-Gulf War missiles with ranges of 650-900 km
• Supported secular terrorists
• Did not support Al-Qaeda

In the October, 2002 NIE, at the height of war fever, the intelligence community estimated Saddam:

• Had an active nuclear program and was 5-7 years from building a nuclear bomb
• Had an active biological weapons program, including mobile labs in trucks
• Had an active chemical weapons program, though on a smaller scale than before the Gulf War, and had 100-500 tons of chemical weapons, most made in the last year
• Unlawfully possessed missiles with ranges longer than 150 km
• Might have 25-30 pre-Gulf War missiles with ranges of 650-900 km
• Had unmanned drones for delivering chemical and biological weapons and might even be planning to strike the US
• Supported secular terrorists
• Did not support Al-Qaeda, although since the US invasion of Afghanistan, Al-Qaeda operatives fleeing Afghanistan had begun operating in Iraq and may have been passively tolerated.
• Was unlikely to attack the US unless his survival was at stake, and was unlikely to give WMD to terrorists, especially ones he did not control.

The Bush Administration alleged or implied Saddam:

• Had an active nuclear program and was 5-7 years from building a nuclear bomb
• Had an active biological weapons program, including mobile labs in trucks, unverifiable specifics given
  Had an active chemical weapons program with 100-500 tons of chemical weapons, most made in the last year, unverifiable specifics given
• Had missiles with ranges of hundreds of miles
• Had unmanned drones for delivering chemical and biological weapons and might even be planning to strike the US
• Supported terrorists, either including Al-Qaeda or strongly implied to include Al-Qaeda
• Might give WMD, presumably including nuclear weapons, to terrorists, presumably including Al-Qaeda.

In short, the intelligence community, even in its most unvarnished assessments, was wrong about Saddam and overestimated his arsenal. However, its unvarnished assessment was more accurate than its assessment after the Bush Administration began the drive to war. And during its drive to war, the Bush Administration did not find even the most alarming intelligence estimates scary enough and either exaggerated, or suggested things that were flatly contradicted. The general trajectory is clear enough. It certainly shows the Bush Administration was no mere victim of bad intelligence. And, although it does not prove political influence on intelligence estimates, it strongly implies such influence.

________________________________________________

*And, FWIW, an Enlightened Layperson's ill-informed pre-war assessment was that Saddam:

• Did not have nuclear weapons or an active program (I could smell the hype a mile off)
• Obviously had chemical weapons (after all, he had used them in the past)
• Might or might not have biological weapons (I was open to persuasion either way)
• Did not have any delivery vehicles capable of hitting the US
• Was unlikely to have delivery vehicles capable of hitting Israel
• Was therefore a threat mostly to his neighbors, who did not seem unduly alarmed
• Supported secular terrorists
• Did not support Al-Qaeda.

Based on the foregoing, I opposed the war.

Rockefeller Report: The Contents

Following up on my last post, what does the RockefellerReport actually show? And what can an Enlightened Layperson find by reading between the lines?

The Rockefeller Report focuses on eight main areas, nuclear weapons, biological weapons, chemical weapons, weapons of mass destruction (generally), delivery vehicles, ties to terrorism, Saddam's intentions, and the prospects for Iraq following an invasion. It reaches 16 conclusions. It focuses on five main speeches, George Bush's speech to the United Nations, his 2003 State of the Union speech, Colin Powell's speach to the UN, and two earlier speeches, one by Cheney and one by Bush, although it also includes snippets of other speeches. The Report takes the speeches in chronological order and compares them to the intelligence then available. At the end (over Republican objections) it concludes by showing the reality as discovered after the war.

Nuclear Weapons. Nuclear weapons are extremely capital intensive to produce and difficult to conceal. Not surprisingly, then, during the 1990's and 2000, the intelligence community consistently concluded that international inspectors had destroyed or neutralized Saddam's nuclear infastructure and that he did not have an active nuclear program, although he might wish to resume it at some time in the future.

A shift began in 2001 even before the 9/11 attack as the CIA began to consider that Saddam might be reviving his nuclear weapons program. Their main evidence was his purchase of aluminum tubes that might be used for uranium enrichment and other "dual use" items. Suspicions escalated in 2002 as the buildup to war continued, culminating in the October, 2002 National Intelligence Estimate (NIE), which concluded that Saddam had resumed his nuclear weapons program and was about 5-7 years from producing nuclear weapons. Interestingly, the notorious uranium forgeries played a only a minor role. Of the five speeches, only one (the State of the Union) mentioned the alleged uranium purchase. The aluminum tubes, on the other hand, were central to the assessment.

The main pieces of evidence cited in the NIE cited that Saddam had revived his nuclear program were (1) purchase of aluminum tubes and other dual-use technology, (2) meeting between Saddam and nuclear scientists, and (3) apparent activity at nuclear sites. The Department of Energy, the agency that knew most about uranium enrichment, dissented, saying that the tubes appeared to be for artillery rockets. Despite the DOE's expertise, its dissent was relegated to a footnote and excluded from the executive summary. Allegations about activity at nuclear sites are too vague to evaluate. (Indeed, one observer (can't find cite) watching Colin Powell's address to the UN immediately knew there was no solid evidence when he displayed diagrams instead of satellite photographs. Needless to say, the Report does not address that).

Committee Conclusion: Statements about Saddam's nuclear program "were generally substantiated by the intelligence community estimates, but did not convey the substantial disagreements that existed in the intelligence community."

Enlightened Layperson reading between the lines: Administration statements may have been "generally substantiated by the intelligence community estimates," but those intelligence estimates reek of political influence. After years of believing the Iraqi nuclear program was haulted, the intelligence community changed its mind just when the Bush Administration was pushing for war. The main basis for the change was Saddam's purchase of aluminum tubes that the agency most familiar with nuclear weapons did not believe were suited for uranium enrichment. That opinion was duly buried. Substantiated by the intelligence means nothing if that intelligence was the result of political pressure.

Biological weapons. Unlike nuclear weapons, biological weapons are extremely difficult to detect. Bioweapons are measured in liters and can be grown in inconspicuous places (such as mobile trailers). Bioweapon materials, personnel and facilities are indistinguishable from legitimate medical research. Accordingly, the intelligence community throughout the 1990's and 2000 worried a great deal about Iraqi biological weapons and believed that Iraq had retained its bioweapons and resumed production. What the Report does not emphasize is that the intelligence community had no actual evidence of biological weapons, only the speculation and paranoid that flourishes in the absence of real information.

The main actual evidence of a bioweapons program were reports from three (by some accounts four) defectors who claimed to have seen mobile bioweapons labs in trucks and rail cars. The intelligence community began giving credence to these reports in 2000, i.e., before George Bush was elected. One of the defectors was the notorious "Curveball." The CIA agents working most closely with "Curveball" expressed doubts about his credibility, but these doubts did not make it up the chain of command. Another defector was Major General al-Assaf, determined by the Defense Intelligence Agency (DIA) to be a fabricator in April or May of 2002. He was nonetheless named as a source in the October, 2002 NIE. The Report does not identify the other defector(s). There were occasional references to satellite photographs of bioweapons facilities but, like the alleged satellite photographs of nuclear facilities, these never amounted to anything.

Committee Conclusion: Statements about biological weapons were "substantiated by the intelligence information," though they did not discuss intelligence gaps.

Enlightened Layperson reading between the lines: These statements were, indeed, subtantiated by the intelligence information, but that information was based on little more than speculation and paranoia. The fabricators added a few specifics, but did not change the intelligence community's overall conclusions. The question, then, is, how much credence should be given to intelligence information that is almost pure speculation.

Chemical weapons. Chemical weapons programs are less conspicuous than nuclear programs, but more conspicuous than biological weapons programs. Large scale production is detectable, but small-scale production can be concealed within the legitimate chemical industry. Up to 2002, the intelligence community believed Iraq had a residual portion of its pre-Gulf War chemical weapons. It was confident that no large-scale production was underway, but suspected small-scale production concealed in the civilian chemical industry. The general estimate was that Iraq's chemical stockpile was 100 tons or less. The intelligence community also had some doubts whether Iraq could produce nerve gas without external resources, but believed it readily produce mustard gas.

This assessment remained generally the same throughout most of 2002, but abruptly shifted with the release of the NIE in October, 2002. Suddenly the 100 tons or less of chemical weapons became 100 to 500 tons, much of it produced in the last year. The NIE produced actual evidence for suspicion of at least one chlorine plant -- that it was producing more chlorine than needed, its equipment was being buried for concealment, and it employed people linked with past chemical weapons production. The Report does not list any other evidence cited to support claims about increased production. The NIE acknowledged that Iraqi production capacity was probably below Gulf War levels.

Committee conclusion: Statements about Iraq's chemical weapons were "substantiated by intelligence information" but did not reflect the intelligence community's uncertainty whether actual production was going on.

Enlightened Layperson reading between the lines: The intelligence community's assessment of Iraq's chemical weapons combines all the weaknesses of its report on nuclear weapons and its report on biological weapons. Like the report on nuclear weapons, it shows a suspicious escalation during the push for war. Suddenly a stock of under 100 tons becomes 100 to 500 tons, most of it recently made. The possibility of small scale production suddently becomes a certainty. Like the report on biological weapons, it is based on fear and speculation in the absence of verifiable evidence.

Weapons of mass destruction. The committee added a separate section on references to "weapons of mass destruction" when it was not clear whether public speeches referred to nuclear, biological or chemical weapons. It finds such references generally substantiated, but showing greater certainty than the actual intelligence judgments. It also reports that Secretary of Defense Donald Rumsfeld made unsubstantiated statements about underground facilities. This section adds nothing to the nuclear, chemical and biological sections.

Delivery vehicles. Unlike the reports on weapons, the section on delivery vehicles does not discuss the intelligence community's pre-2002 opinions on Iraq's delivery vehicles. In 2002 before the October NIE, the intelligence community generally believed that Iraq retained a small number (25-30) of pre-Gulf war missiles with ranges of 625 to 900 kilometers. It also believed that there were newer missiles with ranges of 150 to 300 km. Finally, it believed the Iraqis might be in the early stages of work on missiles with ranges of 750 to 3000 km. All of these would violate UN resolutions setting a maximum range of 150 km. UN weapons inspectors ultimately confirmed that Iraq did, indeed, have missiles exceeding the 150 km maximum range. All of the longer-range, pre-Gulf War missiles had been destroyed.

The October, 2002 NIE repeated these findings and also reported that Iraq was developing and testing small to medium sized unmanned aerial vehicles (UAV's, or drones). The NIE's opinion was that these drones were probably for delivering biological weapons. Furthermore, the Iraqi procurement network was seeking route planning software about the United States, leading the NIE to conclude the drones might be used to deliver biological weapons to the United States. The Air Force dissented, saying that the drones appeared better suited to reconnaissance. Like the DOE dissent about the aluminum tubes, the opinion of the agency with the most technical knowledge was relegated to a footnote and excluded from the executive summary.

Unlike other intelligence reports, which became increasingly alarmist as war approached, in this case the intelligence community began backing off its more extreme conclusions. In January, 2003, the new NIE began hedging and qualifying its opinions about the UAV's. The Airforce continued to dissent, saying that the drones appeared to be reconnaissance, and this time was joined by Army Intelligence and the DIA.

Committee conclusions: Statements about missiles were "generally substantiated by the intelligence." Statements about UAV's being used for chemical or biological attack were "generally substantiated by the intelligence but did not convey the substantial disagreements or evolving views that existed in the intelligence community." Statements that the Iraqi government was considering using UAV's to attack the US were "substantiated by intelligence judgments at the time, but these judgments were revised a few months later."

Enlightened Layperson reading between the lines: Intelligence assessments of the missiles were unproblemmatic and even relatively accurate. The UAV's are a different matter altogether. Like the aluminum tubes, the intelligence community ignored the opinions of the agency with the most technical knowledge and buried its dissent. This smacks of political pressure to produce an alarming result. As for the prospect of Saddam using these drones to attack the US, I concur with this war opponent, "I mean, for crying out loud, at one point our rulers declared that Saddam Hussein might attack America with remote-controlled model planes. You didn’t have to wait to bounce that one off the folks at your next MENSA meeting to judge its likelihood." The intelligence agencies appear to have figured this out and backed off their own conclusion for fear of looking foolish.

Links to terrorism. Saddam Hussein had long standing and well known ties to various terrorist groups, especially secular groups attacking Israel. Al-Qaeda was a different matter. The CIA believed that, although there had been periodic contacts between Al-Qaeda and Iraqi intelligence, these contacts were "mutually wary" and, at most, attemts to exploit each other. Unlike its assessments about Saddam's arsenal, the intelligence community did not change its mind about his association with Al-Qaeda.

In the buildup for war, two changes did take place. Following the US invasion of Afghanistan, some Al-Qaeda fighters fled to Iraq. Most moved to Kurdish areas outside Saddam's control and joined the Islamist Kurdish organization, Ansar al-Islam. Some, however, went to Bagdad. The CIA was not able to determine the degree of complicity by the Iraqi government. Although it found no evidence of active collaberation, given the nature of Iraq's security apparatus, it seemed unlikely they could operate without passive acquiescence. In addition, captured Al-Qaeda fighter Ibn al-Shayk al-Libi said that Iraq had been training Al-Qaeda fighters in chemical and biological weapons. The intelligence community had grave misgivings about these statements, that were almost certainly the product of torture.

Administration officials responded to all this with a game of insinuation. They would mention Saddam Hussein, support for terrorism, Al-Qaeda and 9/11, implying a connection without stating one. Or they described contacts between Iraqi intelligence and Al-Qaeda that were technically accurate but suggested a stronger connection that existed. Republicans dissented from these views, insisting that the Committee should take Bush officials' statements at face value and not look at what they implied. Republicans also pointed out that the CIA approved various speeches about terrorism, so they must have supported the conclusions.

Committee conclusions: Speeches about Iraq's support for terrorist groups other than Al-Qaeda were substantiated by the intelligence, as were statements the Iraq was giving safe haven to Al-Qaeda members fleeing Afghanistan. Statements and implications that Iraq and Al-Qaeda had a partnership, and that Atta met with Iraqi officials in Prague were not substantiated. Statements about contacts between Al-Qaeda and Iraqis were substantiated, but created a deliberately misleading impression of collaboration.

Enlightened Layperson reading between the lines: The intelligence community allowed itself to be pressured on Saddam's arsenal, but on his ties with Al-Qaeda the intelligence community remained firm. This is probably a sign the intelligence community was more confident in its judgment about Al-Qaeda than about WMD. The main shift in its assessment, about Al-Qaeda members fleeing Afghanistan to Iraq, was based on real-world changes and not on paranoia or pressure. Before the US invasion of Afghanistan, Saddam's police state was able to prevent any Al-Qaeda cells from forming in Iraq. That fact that Al-Qaeda operatives were arriving in 2002 does, indeed, suggest at least passive tolerance. And, after all, since the Bush Administration was making absolutely clear that it intended to invade Iraq soon, it should not have been suprising that Saddam was accepting any allies he could find. The Committee Republicans are being deliberately obtuse about what a speech can imply, especially to low information voters, without actually saying.

Intent. Administration officials repeatedly warned about the danger of Saddam giving WMD to terrorists. The intelligence committee repeatedly assessed such a danger as unlikely. Although intent is inherently difficult to evaluate, the intelligence community believed it unlikely that Saddam would attack the US unless he believed his survival was at stake, or that he would share powerful weapons with terrorist organizations he could not control. The majority found that such statements were "contradicted by available intelligence information." The Republican minority dissented, saying that the Bush Administration was only saying that it was possible for Saddam to give WMD to terrorists, not assessing the likelihood. In the wake of September 11, we need to consider such possibilities.

Enlightened Layperson reading between the lines: It is entirely possible that the Bush Administration did not take the threat of Saddam giving WMD to terrorists seriously and actually went to war for some other reason. But it was this threat that Bush emphasized over and over to fearmonger Americans into supporting the war, this threat that was ultimately persuasive. The Republican dissent is absurd. Of course it was physically possible, if Saddam had had WMD, for him to give them to terrorists, including Al-Qaeda. All sorts of things are physically possible. But when people obsessively warn about a certain danger in speech after speech and ultimately (appear to) go to war over that danger, it is not asking too much to expect that danger to have some reasonable degree of probability. Otherwise there is no limit to the number of wars we would have to wage to head off all manner of remote but physically possible dangers. The Republicans do have a point that intentions are far more nebulous than physical capacity. I will address that in my next post.

Post-War Iraq. Matching Administration officials' far-fetched alarmism about the dangers Saddam Hussein posed were their extraordinary indifference to problems that might arise after an invasion. The intelligence community was less optimistic, warning that creating democracy in Iraq would be difficult but doable and require a great investment of time and resources. The did also warn about the danger of violent conflict unless the occupying power acted to prevent it. The Rockefeller Report finds that Administration statements about post-war Iraq "did not relfect the concerns and uncertainties expressed in the intelligence products." The Republican minority, understandably, wants to avoid the entire subject.

Next: An Enlightened Layperson's Overall Assessment of the Rockefeller Report.

The Rockefeller Report: Introduction

My next firsthand document reviewed is the Rockefeller Report by the Senate Intelligence Committee comparing public pronouncements of the Bush Administration to intelligence available at the time. This post is a bit late since the Report was released in June, but better late than never. It is a companion to an earlier report on intelligence failures leading up to the invasion of Iraq (which I admit to not having read, and which would no doubt give the more recent report greater depth).

The Report is useful to people like me who focus obsessively on false information such as Niger uranium forgeries, aluminum tubes, aerial drones, and the fabricator "Curveball" by offering a wider picture. Its basic findings are that Administration reports about Saddam's purported arsenal and ties to non-Al-Qaeda terrorist were substantiated by the intelligence available (though sometimes leaving out caveats and dissents), but statements about Saddam's ties to Al-Qaeda, his hostile intentions, and what could be expected if we invaded Iraq were not substantiated.

Like the earlier earlier report on intelligence failures, however, the Rockefeller Report does not explore the degree to which intelligence reports during the buildup to the war, and especially the October, 2002 National Intelligence Estimate (NIE) were the result of political pressure. Instead, it simply accepts intelligence finished product at face value as what the Administration would have known.

But there is ample evidence that the administration was not simply relying on finished product. Vice President Dick Cheney and his staff regularly visited CIA headquarters to argue with mid-level managers and analysts about unfinished work, offer their opinions and urge analysts to use defector sources the CIA generally regarded as unreliable. And the earlier finding that intelligence reports were not politicized simply because no analysts admitted changing their minds because of political pressure simply is not realistic. A veteran analyst explains that the pressure can take more subtle forms as well. The knowledge that the President has already decided on war can lead analysts to accommodate that inevitability. Reports that tell superiors what they want to hear can be more easily approved than ones that superiors would find unwelcome. Unwelcome news can be sugarcoated. And an obsessive focus on one particular topic (such as the threat posed by Saddam Hussein) can create a sort of tunnel vision that exaggerates that particular threat while overlooking others. In short, the Administration decided on a course of action an looked for intelligence to support it.

The Rockefeller Report does not address any of these issues. However, one does not have to read very far between the lines to find evidence of political pressure shaping intelligence. This evidence comes in three main forms.

First and foremost, a sudden shift in assessment during the leadup to war is suspicious. Intelligence reports from 1991 to 2000 may be taken as a baseline of the intelligence community's independent judgment, free from political pressure. Opinions that show increased assessment of the danger from Saddam during the first nine months of the Bush Administration should be treated as at least mildly suspect. The Administration's obsession with Iraq may have begun as early as 10 days after inauguration, but only after 9/11 did it irrevocably decide to invade. Major increases in the assessed danger from 9/11 to the March, 2003 invasion are highly suspect, especially if they continue to escalate with the growing push for war. Of course, changes in assessment may also be the result of changes in Iraqi behavior. However, given post-war findings that Saddam had not been reconstituting his nuclear program or aggressively seeking chemical and biological weapons makes such an explanation unlikely.

The second suspicious sign is in how intelligence reports handle dissents, such as the Department of Energy dissent from the view that aluminum tubes were for enriching uranium, or the Air Force dissent that Saddam's drones were for spraying chemical and biological weapons. Slate columnist Fred Kaplan suggests that this is the most important lesson of the Rockefeller Report. In case of disagreement, the agency with the most expertise or the best track record of being right should be given most weight. Republican members of the Committee, in their minority dissent, argue that the executive summary of the NIE that the President read did not even mention these dissents. But both of these views put the cart before the horse. The real question should be why the agencies with the most technical expertise were ignored, relegated to footnotes and left out of the executive summary altogether, while the views of less knowledgeable agencies that told the President what he wanted to hear were adopted.

Finally, there is the question of what gets approved. The Rockefeller Report repeatedly chides Administration officials for making speeches implying without directly stating that Saddam had ties to Al-Qaeda. The Republican minority dissent shows itself remarkably obtuse in taking these speeches at face value and refusing to see what was implied. They also repeatedly point out that the CIA had approved these speeches, so it must have endorsed them. More realistically, this shows the CIA, under pressure, adopting the same narrow literalism as the Republicans and being wilfully blind to what was being implied.

So, using these three criteria as evidence of politicization, my next post will review the Rockefeller Report and read between the lines to see what its real conclusions should be.

Memo to the News

Memo to the news:

Cut it out! Please, stop happening so rapidly! How is a blogger to keep up? I am hereby requesting a moritorium on news until my posts have had the chance to catch up with events and clear at least part of the backlog.

Thanks.

An Enlightened Layperson

Belated Blogging on Boumediene v. Bush

OK, back to posting about original documents. This one will address Boumediene v. Bush, the June 12 decision in which the Supreme Court decided, 5-4, that detainees at GTMO had the right to habeas corpus.

Let there be no doubt about Boumediene. It is a result-oriented case. In other words, the majority decided the result it wanted and arranged law and history to support its views. Such an approach is normally (and rightly) criticized. In this case, however, the alternative, as practiced by the dissent, was to ignore the real world altogether and write, instead, for a sterile, lifeless land of papers and precedents, while ignoring ugly flesh-and-blood realities.

The Detainee Treatment Act (DTA) and Military Commissions Act (MCA), passed in response to the Supreme Court's previous finding, states that except for the military commissions and review by the DC Circuit, "no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement" of any of the GTMO detainees. The effect is, of course, to allow them some very minimal rights on paper, but deny any means of enforcing those rights. Much of the case turned on the question of whether aliens held outside US territory have the right to habeas corpus.

Justice Kennedy, writing for the majority, concludes that the evidence is mixed, and that no past case exactly matches the circumstances at GTMO. At the time the US Constitution was adopted habeas corpus applied in India and Ireland, but unlike GTMO, there were English judges in India and Ireland. It did not apply in Scotland and Hanover, but unlike GTMO, neither Scotland nor Hanover was under English law. There is no precedent for a territory like GTMO, nominally under Cuban sovereignty, but for all intents and purposes entirely under US law. Since the adoption of the Constitution, the Supreme court has held that at least parts of it (including habeas corpus) apply in territories under permanent US control, but GTMO is not permanently subject to US authority. Finally, Kennedy discusses at length the case of Johnson v. Eisentrager, in which the Supreme court denied habeas to Germans convicted of war crimes following WWII. He finds that the GTMO detainees are not equivalent because the German prisoners in Eisentrager had actually received a meaningful trial and been convicted, and were being held in a German prison where US jurisdiction was much weaker than in GTMO.

Kennedy then moves on to explain why it is important to extend habeas corpus to GTMO; to prevent to Bush Administration from creating a law-free zone:

The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal contraints. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.

The decision is weak, however, in explaining why the procedures set forth in the MCA are not an adequate substitute for habeas corpus and what should take their place. Possible reasons the decision lists include that detainees have limited ability to rebut the government case, do not have the assistance of counsel, do not know all evidence against them (because much of it is classified), and have no limits on hearsay evidence. However, the Court declines to say that any of these, by themselves or even in combination, prove that the procedures set forth by the MCA are inadequate. It does say that the review allowed is inadequate because it does not allow the detainee to present evidence discovered after the hearing. But simply modifying the procedure to allow such evidence would not necessarily be sufficient because of all the other problems.

The court also makes no coherent attempt to address its recent decision of Hamdi v. Bush. In that decision, the Court held that a citizen held as an enemy combatant may file a habeas petition challenging his designation. Seeking to balance individual rights against military necessity, the Court agreed that, to avoid unduly burdening the military, hearsay should be admissible and classified documents need not be revealed. The Court suggested that the military submit an affidavit summarizing battlefield records as evidence that the detainee was an enemy combatant. Once the government presented a sufficient case, the burden woudl shift to the detainee to present evidence that he was not an enemy combatant. The MCA used this procedure as its model.

The decision is also maddenly vague about what is a sufficient procedure. It does hold that (1) a habeas court should not intervene the minute a detainee arrives at GTMO, but should act well before six years of detention, (2) habeas does not vest until after a status hearing, (3) the government may insist on venue only in the DC Circuit, and (4) some restrictions are appropriate to prevent dissemination of classified information.

In fact, there is no great secret why Justice Kennedy and the majority found that GTMO tribunals were not an adequate substitute for habeas corpus. Because the military status hearings were deliberately rigged against the detainees, and because the Bush Administration was going out of its way to prevent meaningful review on appeal. The dissenting opinions, however polished their arguments in theory, go out of their way to ignore these inconvenient facts.

Justice Roberts writes the earlier and milder dissent pointing out, reasonably enough, that the majority fails to say what is wrong with existing procedures and what would be an adequate substitute. Will any detainees who are wrongfully held win a speedier release by these vague, undetermined procedures yet to be established? And what about Hamdi? These are very reasonable questions. Less convincing is Roberts' argument that the procedures under the MCA and DTA are not only adequate but "the most generous set of procedures ever afforded aliens detained by this country as enemy combatants." Roberts argues that it is particularly generous to allow detainees a "personal representative" to act as their lawyer and to allow this represetative access to classified documents, a privilege not even allowed to regular prisoners of war.

A group of retired military officers presented a brief to the Court refuting these arguments. They point out that these tribunals, unlike traditional military hearings admit evidence gained by torture. Taking place away from the pressures of combat, these hearings can afford to be more thorough that a battlefield determination, yet they are not. And, quite simply, these hearings are politically tainted, with immense pressure to find all detainees to be enemy combatants. Justice Roberts is forced to ignore all these grim realities -- as well as the grimmer reality that detainees are facing indefinite detention (some now for six years) under often abusive conditions and their only hope of release rigged against them.

Justice Scalia's dissent is, predictably, a good deal more strident and uncompromising than Roberts'. He warns that this decision "will almost certainly cause more Americans to be killed" because even without the protection of habeas corpus, 30 released prisoners have already returned to combat. (This contention has been strenuously disputed by researchers). He argues with great heat that no court up until now has ever granted habeus to foreigners held on foreign territory. And he argues that, in any case, prisoners of war, even if held on US soil, have never been allowed habeas corpus.

Both Scalia and Roberts accuse the court of not really caring what becomes of detainees, but only making their decision as a power grab by the courts. This seems an exact reversal of reality. It was the Bush Administration that made the huge power grab. By declaring itself not bound by statutes or treaties mandating the humane treatment of prisoners, by holding detainees beyond the usual reach of the courts, the Administration was trying to create a law-free zone where it could do whatever it wanted. The majority was determined to stop this power grab and uphold basic human rights, even if it took a bit of stretching to do so. Even Scalia acknowledges as much and is outraged that the court would interfere. ("The President relied on our settled precedent in Johnson v. Eisentrager . . . when he established the prison at Guantanamo bay for enemy aliens. Citing that case, the President's Office of Legal Counsel advised him "that the great weight of legal authority indicates that a federal district court could not properly exercise habeas jurisdiction over an alien detained at [Guantanamo Bay].") How dare the Supreme Court break faith with the President who was counting on us to allow his law-free zone?

This is the best analysis of the decision and refutation of Scalia that I have seen:

The reason no civilian court ever reviewed POW status for those captured in WW2 is that POW status is an unproblemmatic preserve of military justice as far as the Conventions are concerned. If the detainees at Gitmo had been afforded POW status from word one, there would already have been military trials for those accused of war crimes - trials including the full panoply of jurisprudence including habeas corpus rights. Those found guilty would have been sentenced, perhaps to death, and those found innocent either held until the close of hostilities legally as POWs or released as no longer a threat at the military's convenience. Those who successfully challenged their POW stutus through their pursuit of a writ of habeas corpus would have become civilian detainees for trial, including further habeas rights, by the civilian system. Again, the guilty would have been sentenced and the innocent released. No combat lawyers, no battlefield Miranda readings.

The problem, then, is caused by the introduction of the entirely spurious designation of "enemy combatant" - a creature neither fish nor fowl and a designation designed entirely to slip through the cracks of previously established military and civilian judicial processes. The only reason ever to invent this designation was to keep detainees beyond the reach of due process, including habeas rights, as a hedge against prosecutions for torture during interrogations.

Now THAT'S a Flip-Flop

It is most amusing reading the outcry among Democrats over John McCain's statement that it is a "disgrace" that Social Security is directly transferring payments by today's workers to pay today's retirees. But that's how it has always worked, McCain's opponents exclaim.

That is certainly true, but it has not been Democratic orthodoxy until now. Up till now, Democratic orthodoxy has been that the government takes current workers' Social Security payments and pays them into a sacred Social Security Trust Fund, which invests them federal bonds. When a worker retires, the government then makes Social Security payments out of the investment in the Trust Fund. The Social Security Trust Fund has never been more than an accounting gimmick, but this has never prevented Democrats from taking it seriously and raising all sorts of hysterics about "raiding the Social Security Trust Fund," "protecting the Social Security Trust Fund," "using the Social Security Trust Fund to mask the true extent of the deficit," and assurances that the Social Security Trust Fund will not run out of money for another 50 years. Now McCain points out that there is no such animal, and Democrats say, "Whoever said there was?"

This is looking like a game of "The Emperor's New Spin" (can't find link). When it becomes impossible to deny that the Emperor has no clothes on, you say, "Of course we know he's buck naked. We think it enhances his sex appeal."

Protecting Banks from Themselves

I do not pretend to know enough about finance to understand the full implications of the alarming drop in value of Fannie Mae and Freddie Mac. But there is one thing I understand.

The free market does not stop people from making stupid mistakes. No system has yet been developed that can keep people from making stupid mistakes. The best the free market can promise to do is penalize stupid mistakes and drive them out of business. Milton Friedman once said (sorry, no link) that the vast majority new ideas will be bad ones. The role of the free market is weed out the majority of bad new ideas so that the minority of good ones can flourish. Any other system will try to prop up every innovation and ensure that the bad majority choke out the few good ones.

In particular, people are seduced again and again by high-risk gambles to make a fast buck, all convinced that they will be one of the fortunate few. Whenever a new industry appears or a mature industry is deregulated, a predicatable boom and bust follows. Vastly more people and business flock to the new industry than will ever be viable and a boom ensues. After a while, a shakeout follows, with most of the entrants failing and business consolidating in the hands of a relative few. The boom, with might better be characterized as a stampede, is followed by a bust as reality sets in. And in boom after boom, people refuse to see the bust that lies ahead.

In most cases, this is acceptable. The deregulation of airlines led to a great proliferation of airline companies, followed by a shakeout. No doubt passengers on some failed airlines lost their frequent flier miles, but the industry as a whole flourished. Our latest recession followed in the wake of the dot com bust. A great deal of foolishness and more than a little fraud was involved. People in the high tech industry suffered, but the economy as a whole experienced only a mild and brief decline -- even when the shock of 9/11 was added on.

Banks are no exception. Banks (or savings and loans), when freshly deregulated, will engage in all sorts of foolish behavior and fuel the sort of boom that leads to a bust. Sooner or later, reality will set in and a shakout will follow. The difference is that failing banks cause an unacceptable level of collateral damage. If the proportion of banks failing matched, say, failing airlines during the shakeout that followed deregulation (let along failing dot coms) untold numbers of innocent depositors would lose their life savings. Failures of unsound banks would lead to runs on sound ones. Vast numbers of people would fear to put their money in banks at all and funds for investment would diminish dramatically, with disasterous effects on the economy as a whole.

The same applies to insurance. A shakeout of insurance companies would mean huge numbers of people paying premiums would never be able to collect when the need arose. All types of harms would go uncompensated. Many individuals would be ruined by a single misfortune. Business, unable to rely on insurance, would become excessively risk-averse.

None of these observations are very new or original. But they are playing all too small a role in policy making decisions. Policy makers, in making regulation and deregulation should take the following basic principles into account:

(1) Deregulation will be followed by a boom, bust and shakeout.

(2) In most industries, this is perfectly acceptable. But don't act shocked when the bust and shakeout hits.

(3) In some industries, such as banking and insurance, a bust and shakeout would cause unacceptable levels of collateral damage.

(4) These industries should remain tightly regulated to protect the participants from themselves.

(5) When these industries push to be deregulated, it is because all of their members are sure that they will be the winners in the inevitable shakeout. They can't possibly all be right. So hold the line.

The Krauthammer Strikes Again

It is difficult to tell just how seriously Charles Krauthammer intends us to take his latest column. Commenting that former Colombian presidential Ingrid Betancourt candidate was freed by military force after years of appeals on her behalf failed, Krauthammer pushes this well past its logical conclusion and appears to use this as an argument that military force is always the answer. Again, it is hard to tell if he actually means all he is saying, but the apparent conclusion of his column is soft power counts for nothing; diplomacy is worthless; only military force ever achieves anything; war is therefore always the best response. Let's invade Darfur, Burma and Zimbabwe so we can put an end to the people's sufferings there, just as we freed the suffering Iraqi people from Saddam Hussein and established such a model democracy there.

This is the same man who, in the wake of 9-11, said it was all Bill Clinton's fault for squandering 8 year that he could have used invading Afghanistan, Iraq, Iran and North Korea. Events since them have apparently done nothing to suggest to him that there might be limits to American military power.

Charles Krauthammer is a professional psychiatrist. Maybe he should check is own head out.

Where Obama Flip-Flops and Where He Doesn't

OK, I lied. I still intend to post an Enlightened Layperson's analysis of primary documents, but reserve the right to intersperse with comments on other developments. Like this column in the National Review Online by Charles Krauthammer, in which he accuses Obama of reversing himself on so many issues dear to his base that it is impossible to tell what, if anything, he stands for.

In last week’s column, I thought I had thoroughly chronicled Obama’s brazen reversals of position and abandonment of principles — on public financing of campaigns, on NAFTA, on telecom immunity for post-9/11 wiretaps, on unconditional talks with Ahmadinejad — as he moved to the center for the general election campaign. I misjudged him. He was just getting started. . . . He will use his upcoming Iraq trip to acknowledge the remarkable improvements on the ground and to abandon his primary-season commitment to a fixed 16-month timetable for removal of all combat troops. The shift has already begun.
. . . . .
Obama’s strategy is obvious. . . . He and his party already have the advantage on economic and domestic issues. Obama, therefore, aims to clear the deck by moving rapidly to the center in those areas where he and his party are weakest, namely national security and the broader cultural issues . . . — and most importantly his war-losing Iraq policy.

Several retorts are possible here. One is that that Republicans should not be too quick to criticize Obama for reversing himself considering how vulnerable their own candidate is to retaliation. Another is that Krauthammer is much mistaken if he believes that most Americans share his enthusiasm for staying in Iraq indefinitely.

But that is not the approach I want to take. I can't say how things look from the perspective of the National Review, or even of your average, low-information voter, but speaking from the perspective of a (very minor and unimportant) member of Obama's netroot base, it looks to me as though Krauthammer is confounding important and unimportant issues; major reversals and tiny matters of nuance; things that make us wonder what Obama stands for and things that do not. So let's go through Obama's supposed reversals and see what they amount to.

Wiretaps/telecom immunity. This is, from a netroots standpoint, Obama's biggest and most unforgiveable reversal. And no, voting against telecom immunity before voting in favor of the whole monstrosity, immunity included, does not get him off the hook. He promised to filibuster any bill that included immunity; he did not live up to it. And yes, this does make us wonder what he really stands for and whether he intends to reverse the super-imperial Presidency of the Bush Administration, the most important issue for us.

Flag pins. Sigh!! This is a phony issue. It has always been a phony issue. The real issue is not about flag pins but inclusion versus exclusion. Obama was objecting to people who thought he should be excluded from the company of patriots because he didn't wear a flag pin. He was not, in turn, trying to exclude anyone who did wear one. Wear a flag lapel pin is nothing but a harmless gesture to people who consider it important. More disturbing is that Obama has refused to appear on a platform with Muslim Representative Keith Ellison, or be photographed with any woman in a headscarf. Unlike flag pins, these snubs do offend the netroots because they are signs of exclusion.

Public financing. The point of public financing is to reduce the power of big money interests. Obama, instead, is reducing the influence of big money by relying on small individual donations. This is perfectly acceptable to the netroots. It has its problems, though. One is that it is unlikely to be sustainable. Another is that, instead of giving undue influence to big money, small donations give undue influence to the netroots and open us to charges of conflict of interest!

Withdrawal from Iraq. Most of this is based on speculation about what Krauthammer (and others) think Obama will say at some time in the future. Let's wait till then to announce a flip-flop shall we? In any event, most opponents of the war are not so fixated on a rigid 16-month schedule that we regard any deviation as a betrayal. Yes, conditions may extend withdrawal some, maybe even to two years. That is acceptable. What is not acceptable is constant assurances that we will start drawing down the troops in just one more Friedman unit. I suppose McCain deserves credit for not continuing this lie. He is honest enough to say that we will never draw down the troops. But Krauthammer is much mistaken if he believes this is a popular viewpoint.

Unconditional negotiations. OK, so there probably will be some conditions or at least some preparations. But once again, let's get some perspective here. We've had eight years now of an Administration that opposes all diplomacy on principle and regards it as "appeasement." Their overall position is that we'll negotiate as soon as the other side surrenders. The point on our side has never been that we must have a presidential summit with Iran within one year. It is that we should start taking diplomacy seriously and stop dismissing it as mere "appeasement," not that we must negotiate immediately at the highest level, but that we should negotiate at all. I see no evidence whatever that Obama wants to continue the Bush position of mindless intransigence.

Second Amendement. There has been something of a reversal here, as Obama defended the constitutionality of Washington, DC's ban on handguns and now is defending the Supreme Court finding that the ban was unconstitutional. Still, it seems unlikely that Obama would ever seek a complete, nationwide ban on all handguns -- or that the Supreme Court would find all restrictions on gun ownership unconstitutional. Compromise is a normal part of politics. Maybe someone should remind George Bush of this.

NAFTA. I will admit to not knowning enough about the ins and outs of Obama's position on NAFTA to know to what extent he has reversed himself.

Abortion. Krauthammer does not raise this subject, perhaps because he himself belongs to the mushy middle on abortion and perhaps because Obama's actual position on issue is hardly right-to-life. However, Obama has apparently been accused of reversing himself on abortion because he would allow late-term abortions only for the sake of the mother's physical health and not her mental health. I doubt anyone but hard-core NARAL types would consider this a big deal.

In short, Obama has sold out on wiretapping and broken his pledge to stop retroactive immunity. He has been a spineless coward in his dealings with American Muslims. But most of the other reversals Krauthammer trumpets are no more than minor adjustments.

The Latest FISA Ruling: What Does It Mean

(NOTE: I plan for my next few entries to be reviews of original documents from the perspective of an Enlightened Layperson. I will be starting with the most recent and moving backward to less recent ones, which should make this entry current and some later ones hopelessly behind the times).

The latest episode in the saga of George Bush's warrantless surveillance has been a ruling by the trial judge in the case of Al-Haramain Islamic Foundation v. Bush. The decision is complex and requires a little background to understand.

Numerous individuals have tried to sue the Bush Administration for wiretapping them without a warrant in violation of FISA. In all cases but this one, the Administration has been able to have the suit dismissed on the grounds that the plaintiffs could not prove that they were surveilled. In the Al-Haramain case, however, Justice Department lawyers inadvertently gave the Al-Haramain Islamic Foundation (a Muslim charity suspected of being a terrorist front organization) a document proving such surveillance. Al-Haramain sued and, unlike the other parties, presented proof. The government demanded the document and all evidence of the document be excluded as a state secret and the case dismissed for lack of proof. The original trial judge ruled that Al-Haramain must give up the document, but could quote the document from memory to establish standing. The Court of Appeals overruled that decision and held that the document and any memory of the document were inadmissible under the common law (judge-created) state secrets rule, but might be admissible under FISA rules for dealing with classified documents. The case was returned to the District Court (this time Judge Vaughn Walker) to address that issue.

So what did Walker rule? His decision does not address the core issue of whether FISA unconstitutionally infringes on the President's power (a subject the Administration has gone out of its way to keep any court from ruling on). Rather, it tinkers around the edges of arcane and technical FISA subjects and is ambiguous enough that both supporters and opponents of the Bush Administration's warrantless surveillance can spin it as a victory. The following are its main findings:

FISA is the exclusive means for the President to engage in foreign intelligence surveillance within the US. FISA was enacted in response to serious executive abuses of power and to allow such surveillance outside FISA would defeat the entire purpose of the Act. Although the judge addresses exclusivity mostly in the context of the state secrets privilege it is this ruling Bush opponents regard as a victory.

FISA procedures for dealing with state secrets preempt the common law state secrets privilege. The state secrets privilege is a privilege created by judges in the absence of a statute. Under the state secrets privilege, if the government claims that information is privileged, the judge must somehow decide whether the claim is appropriate, but without disclosing the nature of the privileged information. It may be appropriate for the judge to review the document in camera (privately), but sometimes even private review reveals too much and the judge must determine whether documents are privileged without seeing them! FISA provides that if the government claims a privilege for wiretap documents, the judge "shall" (must) review them in camera and make a determination. Judge Walker held that this specific FISA statutory provision overrides the general common law state secrets privilege.

Article II of the Constitution does not give the President exclusive authority over the state secrets privilege. The Bush Administration, of course, has a longstanding habit of claiming absolute power in all matters of national security beyond the authority of the other branches to question. Although the government managed to avoid giving the judge the opportunity to rule on whether the President has such power in matters of foreign intelligence, it did claim complete power over the state secrets privilege. The judge rejected this argument, pointing out the Congress has passed many laws, and not just FISA, that regulate the executive handling of classified materials. This, too, is a clear smackdown to the Bush Administration and its theories of executive power.

FISA intentionally makes it nearly impossible to know if one has been improperly surveilled. The statute for criminal warrants requires that targets be notified after the surveillance ceases. Such notification is routine, and there have been many lawsuits for improper suveillance. FISA also has a notice requirement but (understandably in matters of national security) there are so many exceptions as to make the requirement almost meaningless. Notification is extremely rare and usually occurs only when the government brings criminal charges. To date, no one has brought suit under FISA's civil provisions, let along won.

FISA procedures for review of classified documents do not begin until plaintiffs have established their standing to sue. This means that Al-Haramain must initiate suit without relying on any classified documents. Only once it has gotten its foot in the door without such documents may the court begin review of the classified document. This is what Bush supporters can claim as victory. The judge found that the plaintiffs were relying on classified evidence to make their initial claim and dismissed their case. He gave them 30 days to refile, this time relying on non-classified evidence.

The Plaintiffs' options, then, are to re-file or to appeal (or some combination of the two). Stay tuned for the next thrilling episode.