Monday, August 25, 2008

Signing Off

A personal announcement: My posts will probably become sparse to non-existent in the foreseeable future. Visiting legal blogs has finally inspired me to start law school, which will keep me too busy to post with any frequency.

Until I am actually admitted to the bar, I will still consider myself an Enlightened Layperson and continue to blog as such.


Monday, August 18, 2008

Al-Marri, Redux

My recent outburst was occasioned by the Fourth Circuit Court reaching a decision in Al-Marri v. Pucciarelli about the continued detention of the apparent al-Qaeda operative Ali Saleh Kahlah al-Marri on July 15. Coming on the heels of the Boumediene opinion, al-Marri seemed like one primary document too many.

To recap, al-Marri was a citizen of Qatar who entered the United States by a lawful student visa on September 10, 2001. On December 12, he was arrested as a material witness in the 9-11 attack. The government originally charged him with credit card fraud, but later dropped the charges, declared him an enemy combatant, and transferred him to military custody. The district court upheld such detention. The nine-member Fourth Circuit Court of Appeals (the most executive-friendly in the country) entered a complex and fractured decision on July 15, 2008.

So fragmented was the decision that there was no majority opinion. Four of the judges held that al-Marri could be militarily detained and had received sufficient due process. Four held that al-Marri was entitled to a criminal trial and could only be held by the criminal justice system. Justice Traxler split the difference, holding that al-Marri could be held in military custody, but was entitled to a more extensive process than he had received. Because the practical upshot of the decision was to return the case to district court for further procedings, the opinion of the judges calling for a criminal trial and the opinion of Traxler are listed as separate concurring opinions and the opinions of the four judges who believed no further procedure was needed was listed as the dissent.

The total opinion goes for 216 pages, but both the concurrence and the dissent soon become redundant as each takes a fairly simple but dubious point and hammers on it, again and again. Both opinions are based mostly on the Authorization to Use Military Force (AUFM) and the Supreme Court opinion of Hamdi v. Rumsfeld interpreting the AUFM. Neither one takes seriously the claim that the President has inherent authority to militarily detain enemy combatants without an authorizing statute.

First the "concurrence," written by Justice Diana Gribbon Motz. Motz' basic point is simple. Al-Marri, as a "civilian" and a legal US resident. As such, he has the right to be criminally tried before he can be imprisoned (as a civilian criminal). She acknowledges a few instances in which people may be confined without a criminal trial. In all cases, such detention must be authorized by statute. Judges may deny bail pending trial. Dangerous, mentally ill people may be civilly committed. Illegal immigrants may be detained pending deportation. Soldiers may be court martialed. And in time of war, enemy aliens may be detained. However, Motz holds, al-Marri is not an "enemy alien." He is a citizen of Qatar, a friendly country, present in the US on a lawful visa. As such, he is entitled to a criminal trial. (This point is hammered again and again for 64 pages).

Looking at other cases authorizing military detention, Motz finds that none apply to al-Marri. Hamdi permitted military detention of a US citizen captured in a war zone in Afghanistan. The Jose Padilla case, also in the Fourth Circuit, permitted military detention of a US citizen arrested in the US. It is a dubious precedent because President Bush transferred Padilla to criminal custody rather than allow the case to be heard by the Supreme Court, where he expected to lose. Nonetheless, Motz distinguished saying that Padilla actually fought in the war zone in Afghanistan, which al-Marri did not. The WWII case of Ex Parte Quirin permitted the military trial and execution of German spies who were members of the German armed forces, and who arrived in the US by submarine and then buried their uniforms. The Civil War case of Ex Parte Milligan required a criminal trial of a Union citizen who aided the Confederacy by did not fight in actual combat. Thus, says Motz, none of these cases apply to al-Marri, who is a civilian and did not take part in combat.

This opinion is subject to obvious criticism. Its definitions of "civilian" and "enemy alien" make outdated assumptions that war is a contest between nation states and that nationality defines enemy status. But our war is with Al-Qaeda, a trans-national organization, and the government introduced strong evidence that al-Marri was a member. Justice Wilkerson's dissent plausibly attacks this theory. But his argument in favor of military detention requires even more strained logic, which he hammers on for nearly 80 pages.

Wilkerson ably argues that the nation-state model of war is no longer current, especially in our current war with a trans-national organization. He would set a three-part test (judges love three-part tests) for who can be militarily detained. A detainee must be (1) a member (mere sympathizers do not count) (2) of an organization that Congress had declared war on or authorized military force against (this would limit military detention to Al-Qaeda and exclude other terrorist groups), (3) who "knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization." Wilkerson argues that plotting terrorists attacks, even without participating in any, meets the third criterion.

The basic argument that we are at war with Al-Qaeda and therefore may militarily detain its members anywhere in the world regardless of circumstances sounds reasonable and convincing -- until one actually considers the laws and cases Wilkerson uses to support his position. Wilkerson bases his case almost entirely on the AUFM. He repeatedly accuses his colleagues of ignoring the "plain meaning" of the AUFM and undemocratically interfering with the will of the elective branches of government. But the language of the AUFM is anything but clear:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
To Wilkerson, "all necessary and appropriate force" gives the President a blanket exemption from all laws so far as Al-Qaeda is concerned. Nor do any laws restraining the President apply, event within the United States. "[T]he preamble of the AUMF specifically directs the President
'to protect United States citizens both at home and abroad.'"

In arguing that the AUFM specifically authorizes military detention of Al-Qaeda members, Wilkerson relies heavily on Hamdi. But there is a problem with this approach. Hamdi addressed specifically an armed man captured in Afghanistan, where there was active combat. Many of Hamdi's concerns address specifically the problem of giving adequate process in the middle of a war zone. Nothing in Hamdi says that the same rule would apply to a person arrested outside a war zone. To this Wilkerson replies that neither did that decision say it did not apply outside active combat zones.

Wilkerson is dismissive of any other laws that might apply in this case. The government may, indeed, be at a disadvantage in trying al-Marri because much of the evidence against him may be classified. One concurring justice proposed using the Classified Information Procedures Act (CIPA) to decide what may be admitted. To this Wilkerson replies that Congress knew about CIPA when it passed the AUFM, yet it chose to authorize military detention anyhow. When members of Congress publicly stated that they did not intend to authorize indefinite military detention, Wilkerson dismisses this as after-the-fact rationalization.

In fact, Justice Motz presents significant contemporary evidence that Congress did not intend anything so expansive. Congress expressly rejected a provision to apply the AUFM within the US as well as outside. Furthermore, the day after passing the AUFM (authorizing military force abroad), Congress began considering the PATRIOT Act to deal with domestic security. The PATRIOT Act expressly forbids indefinite detention of "alien terrorists," but permits temporary detention pending either criminal trial or deportation. The Administration did, in fact, request the power to indefinitely detain terrorists, but legislators of both parties rejected the proposal. The usual rule in case of a potential conflict between statutes is that the more specific statute overrides the more general one. Thus a statute specifically governing detention of terrorists in the US overrides a general authorization to use military force.

Wilkerson replies that the AUFM is the more specific statute. It addresses Al-Qaeda in particular, whereas the PATRIOT Act deals with terrorism in general. But it surpasses belief that a law about internal security passed so soon after the 9-11 attack would have nothing to do with Al-Qaeda. And considering that the PATRIOT Act expressly forbids the indefinite detention that the AUFM supposedly allows, one would expect Congress to make some acknowledgement of the contradiction.

Wilkerson constantly berates his colleagues for ignoring the "plain will" of Congress in passing the AUFM. In fact, what he is irate about is not that his colleagues are ignoring the will of Congress in passing the AUFM, but that they do not share his extremely expanded interpretation of that law. One is reminded of George Will's snark that in the future when Congress authorizes military force, the authorization will take volumes because it will have to comprehensively list every single law not repealed or overridden.

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Saturday, August 16, 2008

Democracy and Nationalism

Following up, it is fair to ask why neoconseratives assume that a democratically elected government will always toe our line. Militant nationalism and an attitude of "screw the world" have been big electoral winners in the US and were largely responsible for the necon's rise to power in the first place. Is it any wonder that militant nationalism and an attitude of "screw the world" will be winners in other countries as well? Or that such an attitude will often go against our interests?

In the short run, chest-thumping and ass-kicking will prevail over restraint and cooperation every time. In the long run, the bill will always come due. In a small and weak country like Georgia next to a large and powerful neighbor, it hasn't taken long. In a country so large and powerful as the United States, it takes longer, but, as George Bush's unpopularity shows, the bill is arriving. The bill is beginning to come due for Russia already as Poland has responded to Russian aggression in Georgia by allowing the US to base anti-missile interceptors in Poland. The full bill may be delayed in Russia, or in Iran, or in Venezuela because high oil prices are keeping all three economies artificially afloat, but let there be no mistake, it will come due.

If we, as Americans, want to hasten that day, our best approach would be to cut oil consumption, which will bring down prices. And then Russia, Iran and Venezuela will have to face the long-delayed consequences of their actions.

What "Democracy" Means to a Neocon

Neoconservatives are predictably hyperventilating about the Russian attack on Georgia and crying "appeasement" with warnings about Munich. But at the same time they acknowledge that Vladimir Putin is nowhere near as ambitious as Hitler. He is simply seeking to dominate Russia's "near abroad."

A fair question, then, is why that would be so bad. Granted, neocons want to envelop the entire world in benevolent US hegemony, but would it kill us to keep our hands off Russia's "near abroad" and recognize Russia as a "(sorta) great power" doing what great powers do? The neocon response is that it is not just universal benevolent hegemony we are seeking; it is democracy. Autocratic (though not Communist or militant Islamist) Russia is menacing democratic Georgia and Ukraine.

To anyone who points out that Russia, after all, now has contested elections, and that Putin and his protegees won fair and square, neocons would presumably reply that it takes more than elections to make a democracy. This is also their response to anyone who argues for the electoral legitimacy of, say, Amadinejad in Iran, Hugo Chavez in Venezuela, Hamas in the Gaza, or Hezbollah seeking a place at the table in Lebanon.

I fully agree. It takes more than contested elections to make a true democracy. Other factors include:

  • The elective government must hold actual power. If the elected government is mere window dressing and real power lies elsewhere, that is not democracy. Contested elections will never make Iran democratic so long as real power lies with unelected Ayatollahs.
  • The elective government must be bound by laws and simply the leader's unbridled will. If the rule of law does not prevail, the government is not a democracy, but an elective dictatorship. Putin and Chavez are behaving like elective dictators.
  • The elective government must respect basic human rights. Government by arbitrary arrest, torture and murder may be elective, but it can never be democratic. Hamas, in consolidating power, has spectacularly violated individual rights at every turn. Putin's record in this department leaves much to be desired. And so forth.
  • The elective government must allow sufficient freedom of dissent for opposition to flourish and contest future elections. Otherwise it is simply "one man, one vote, one time." Hezbollah, for instance, holds southern Lebanon in a totalitarian grip within a democratic system. The others may be less blatant, but all do their best to prevent meaningful opposition.
  • The elective government must not only voice the will of the majority, it must respect the rights of the minority. Otherwise it is not true democracy, but merely majority tyranny.

Neocons are quite right to point all these things out. Of course, neocons ignore equally serious failings in purportedly democratic allies. Afghanistan is a democracy even though President Karzai is referred to as "the mayor of Kabul" because outside the capital warlords rule. The Iraqi government is democratic even though its power has not always extended beyond the Green Zone; it routinely ignores its own laws; it has allied with death squads murdering men for their religion; it has no meaningful representation of Sunni Arabs, who (foolishly) boycotted the 2005 elections; and it is now seeking to avoid provincial elections that may threaten its power. Georgia's President Mikhael Saakashvilli is a democrat even though he has arrested opponents, charged them with espionage, beaten protesters, and censored unwelcome news.

All of which leads to one basic point. The above criteria are merely excuses. To neocons, for a government to be "democratic," it need meet only two standards. (1) It must have semi-plausible elections and (2) it must toe our line. When a government reverses its policies to our liking, neocons can reverse their judgments with stunning speed. When Mahmud Abbas ran in an uncontested election for President of the Occupied Territories and denounced Israel, Charles Krauthammer jeered that even though this was a Palestinian elections, with the outcome pre-determined, why was Abbas running as Yasser Arafat. But when Abbas opened to negotiations with Israel, he suddenly became a noble democratic leader. Likewise, up to 2006, neoconservatives condemned many of our Arab allies such as Egypt, Jordan, Saudi Arabia and the Gulf States for their lack of democracy. But when they condemned Hezbollah's provocation against Israel, these governments suddenly became "reformist." (Not even neocons could claim they were democratic).

The neocon rule is simple. An elective government that toes our line is a democracy and all blemishes will be ignored. Governments that do not toe our line, elective or not, cannot possibly be democratic.


Sunday, August 10, 2008

The Iraqi Perspective Project on Iraq and Terrorism

My next, and even more outdated, original document will be the Pentagon's Iraqi Perspectives Project report, released in March, describing Saddam Hussein's ties to terrorism. Opponents of invading Iraq have claimed vindication because the report finds no direct ties between Iraq and al-Qaeda. Proponents have also claimed vindication because the report shows extensive ties between Saddam and terrorism, including some Islamic organizations with links to Al-Qaeda.

The report contains five volumes, the first one consisting of the report and conclusions, and the other four some 2,000 pages of captured Iraqi documents, translated into English. Having read the introductory volume only, my main impression is how poorly written it is. The first volume is 94 pages long, including table of contents, executive summary, footnotes, appendixes, and pages intentionally left blank. Only 46 pages are taken up by actual report.

It addresses terrorism committed directly by agents of the Iraqi state (the Fedayeen Saddam), Iraqi sponsorship of non-state terrorism, and Iraqi cooperation with Islamist terrorists. The reports treats most of its subjects by taking a document it considers a good example and quoting extensively from it, but with little or no attempt at context. The general impression is one of a minute and detailed description of several trees, but no description of the size, density or composition of the forest. When the report does attempt to reach a broader conclusion (as it does about Saddam's ties to Islamic terrorists), it does so with remarkable little supporting evidence.

Attempting to look past all these trees the outline of the forest seems to be as follows:

  • The Fedayeen Saddam had an extensive terrorist network in Europe and kept considerably more arms at Iraqi embassies than would be needed for protection. Their main targets appear to have been Iraqi defectors abroad.
  • The Fedayeen Saddam also recruited and trained suicide bombers from Iraq and other countries. The targets of these terrorists are not clear.
  • Iraq also provided extensive training to non-state terrorists, especially ones attacking Israel, to the extent of building models of Israeli settlements to practice attacking.
  • The Iraqi government collaborated (to an uncertain degree) with various Islamist terrorist groups, especially Egyptian Islamic Jihad, led by Ayman al-Zawahari, who later became Bin Laden's deputy. It kept an eye on a wide variety of other Islamic terrorist groups, hoping perhaps to exploit them in the future.
  • During the 1991 Gulf War, Iraq and allied terrorist groups responded with attacks on American and allied interests.
  • Iraqi intelligence and the Fedayeen Saddam engaged in extensive acts of sabotage and terror in the autonomous Kurdish regions. The report emphasizes attacks on foreigners and does not discuss either the extent to which Kurds were targeted or the extent of cooperation with Islamist organizations in Kurdistan, such as Ansar al-Islam.
  • Iraqi intelligence spied on the Saudi and Kuwaiti royal families and attempted to assassinate members.
  • Iran was also a frequent target of Iraqi terrorism.

One of the report's few attempts at extensive analysis was of Iraqi ties to Islamist terrorists. Saddam ruthlessly suppressed any such organizations within Iraq, but wavered on whether to support them abroad. However:

Saddam provided training and motivation to revolutionary pan-Arab nationalists in the region. Osama bin Laden provided training and motivation for violent revolutionary Islamists in the region. There were recruiting within the same demographic, spouting much the same rhetoric, and promoting a common historical narrative threat promised a return to a glorious past. That these movements (pan-Arab and pan-Islamic) had many similarities and strategic parallels does not mean they saw themselves in that light. Nevertheless, these similarities created more than just the appearance of cooperation. Common interests, even without common cause, increased the aggregate terror threat.
However, the report gives little supporting detail, other than to mention Iraqi support for Egyptian Islamic Jihad.

The report is conspicuous for what it does not address, especially any systematic sorts of comparisons. Obvious questions to ask might include:
  • What sorts of terrorist acts did Iraqi intelligence plan? Who were their most common targets? What percentage of their planned attacks succeeded? Was there any pattern of successes or failures (say, attacks planned far from home were less likely to succeed that ones nearby).
  • Which non-state terrorist organizations did Iraq have closest ties to? Training terrorists and planning attacks together would be evidence of close ties. Providing finance and more passive forms of support are evidence of less close ties. Mere occasional contact is a weak tie. Planning frequent attacks together is evidence of stronger ties than planning occasional attacks. And so forth.
  • What were Iraq's ties with specific Islamist terrorist organizations? How were they similar and how did they differ?
  • How did Saddam's policies evolve over time? Which terrorist organizations did he strengthen ties to, and which did he weaken ties to?
  • And what about the Al-Qaeda fighters who fled to Iraq in the wake of the US invasions of Afghanistan?

Conceivably, the rather weak analysis and poor attempts to quantify the evidence could be because the evidence remains spotty. Although the report is touted as the product of reviewing some 600,000 documents, only 15% of those have been translated into English. And it is not clear whether 600,000 is the total number of documents about terrorism, or the total number of captured documents dealing with all topics. Nonetheless, there are some 2,000 pages of documents in the four succeeding volumes.

If I had the time, I might be tempted to read through all 2,000 pages to see if I could provide a more systematic analysis than the Pentagon has to offer. Unfortunately, I do not.

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Sunday, August 03, 2008

9-18 Conspiracy Theories

This is getting creepy. I have always been scornful of 9-11 conspiracy theorists, and remain so today. But now Glenn Greenwald, who I have always respected, is beginning to sound almost like a 9-11 conspiracy theorist when talking about the anthrax attacks that followed. Are even respectable people sinking into paranoia, or is something genuinely sinister happening here?

To recap, a week after the 9-11 attacks (September 18), major newspapers and new networks received envelopes containing anthrax spores and threatening letters saying "9-11-01" and "Death to America. Death to Israel. Allah is great." In October, similar letters were sent to Democratic Senators Tom Daschle (the Majority Leader) and Patrick Leahy (Chairman of the Judiciary Committee). In the overheated atmosphere of the time, most people suspected Arab terrorists. When the second batch of letters appeared to contain weapons-grade anthrax, many people blamed Saddam Hussein. However, further FBI investigation determined that the anthrax was a US strain developed at the Army Medical Research Institute at Ft. Detrick, and the water used the process it came from the northeastern United States. The attack came from inside.

None of this so far is the stuff of paranoia. Recall the distinction between real conspiracies and imagined ones. Real conspiracies are characterized by (1) a limited number of participants, (2) limited duration and (3) limited objectives. They also create positive evidence of their existence. Sending out the anthrax appears to have been an inside job, but it required only a single participant (one participant doesn't even rate as a conspiracy). The time between the 9-11 attacks and the second anthrax mailing was about one month. The mailer's objective is unknown, but it appears to have been to intensify the fear of Arab terrorism. The sender may have seen himself as trying to awaken a still-complacent nation to its true danger. And whoever send out the anthrax did, indeed, create physical evidence that the spores were American in origin and probably came from Ft. Detrick. The FBI never managed to solve the mystery, but at least decisively debunked claims that the anthrax came from overseas.

In the aftermath of the anthrax mailings, the White House constantly urged the FBI to find a link to Al-Qaeda. Government officials and commentators in outlets such as the Guardian, the Wallstreet Journal and CNN speculated that Iraq might be behind the attacks. This appears to have been speculation rather than conspiracy. Many Bush Administration hawks and conservative commentators were determined to have a war with Iraq and eager to attribute just about anything to Saddam Hussein. And the speculation is not entirely unreasonable. If the anthrax was, after all, weapons grade, there are only a limited number of sources and Iraq had, after all, made biological weapons in the past.

Things start looking more sinister on October 26, 2001, when ABC News reported actual evidence implicating Iraq. According to ABC, lab reports showed the presence of bentonite in the anthrax, and only Iraq weaponized anthrax with bentonite. The report was false. There was not bentonite in the anthrax. And here is where it becomes disturbing. The source of the report was three or four independent sources in the investigation at Ft. Detrick. As Glenn Greenwald points out, the sources making these false reports came from the same place that the anthrax originated. Our conspiracy has now jumped from a single member to four, and the motive is now beginning to look like an attempt to encourage war with Iraq. Suddenly the targets take on added significance. The attack was aimed, not at random Americans, but at the elite, people who would have real influence on whether to invade Iraq. And the targets were two Democratic leaders and the purportedly liberal MSM, people who might otherwise have opposed the invasion, but were more likely to get on board if they felt personally targeted.

Or maybe something less sinister was happening. Maybe the four anonymous individuals at the lab were simply repeating false reports they received from the actual anthrax mailer. Maybe they were in shock and denial about being the source. Or maybe they were trying to protect a friend and colleague.

In any even, the White House quite truthfully denied reports of bentonite in the anthrax. Naturally the usual suspects proclaimed the ABC report as proof Saddam Hussein was behind the attacks and blasted the White House for failing to come out and say so. Nothing very conspiratorial about that. Certain neoconservative hawks were determined to have their war with Iraq no matter what and eagerly seized on anything to support them. White House motives are a bit more intriguing. Were they simply making an innocent denial of a false rumor? Or was it a clever calculation that an unofficial report, officially denied, would carry more weight than an official statement? Or simply fear of being caught lying?

But even assuming the worse so far, we have only a conspiracy of four members wanting war with Iraq and taking actions to reinforce hawks' pre-existing notions and undermine doves' potential resistence. The fact that warhawks did, indeed, allow their prejudices to be confirmed is no evidence of any conspiracy on their part.

But it really starts to get disturbing when Greenwald quotes columnist Richard Cohen as saying that an unnamed "high government official" warned him to take Cipro against anthrax shortly before the anthrax mailings. Now this is starting to look alarming. As blogger Atrios says:

Years later it apparently does not occur to American's Funniest Pundit to ask why a "high government official" was warning media figures to start popping Cipro in the aftermath of 9/11. I can see why, at the time, the obvious interpretation would be that there was intelligence about possible biological attacks. But now that we know that the US gov't believes that anthrax came from the inside, shouldn't Cohen be a wee bit curious about what this warning was based on?
This is so alarming it starts to look like tinfoil hat territory. So, trying to avoid sinking into utter paranoia, let us consider the possibilities:
  1. It was purely a coincidence. The government was in a generally paranoid mood following 9-11 trying to imagine all possible terrorist attacks. Anthrax was one such possiblity.
  2. Someone at Ft. Detrick heard the government was getting paranoid about anthrax and started getting ideas. (And, in fact, if the government was paranoid about anthrax, it would almost certainly have been putting Ft. Detrick, an Army medical research lab, on alert).
  3. The anthrax plotter(s) were actively feeding the paranoia by spreading rumors before the attack. (And perhaps also sought to reduce casualties by encouraging people to take Cipro).
  4. There was a wider conspiracy.

My own inclination is to be skeptical of (1) and (4) and to favor either (2) or (3). But whatever the case, Glenn Greenwald is right. Perhaps there was only one anthrax plotter, who misled his colleagues. Maybe there were several. Or maybe the tinfoil hat crowd are less crazy than we think. But we really need to be investigating not only the origins of the anthrax, but also the origins of the tips about anthrax in order to discover how many people were involved. Or even respectable people may start sinking into paranoia.

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So, What Would Be a Realistic Intelligence Assessment

I just can't seem to drop this bone.

To repeat what I said before, the Rockefeller Report is a whitewash because it does not address the issue of political influence on the intelligence community, but it should lay to rest claims that the Bush Administration was simply the victim of bad intelligence. Let us consider, then, the intelligence community's original, unvarnished assessment of the threat posed by Saddam, errors and exaggerations included, and consider what a reality-based administration might have concluded from such an estimate.

In the intelligence community's opinion at the time Bush came to power, Saddam Hussein:
  • Did not have a nuclear weapons program because it had been shut down by UN weapons inspectors (true)
  • Had biological weapons, quantity and type unknown (false)
  • Was not producing chemical weapons on a large scale, but might have a small-scale program. His arsenal was unlikely to exceed 100 tons, and mustard gas would be easier to produce without outside help than the deadlier nerve gas. (False; he did not have chemical weapons)
  • Had a fleet of missiles in the 150-300 km range, in violation of a 150 km limit (true, but their range was only slightly more than 150 km)
  • Might have 25-30 pre-Gulf War missiles with a range of 650-900 km, capable of hitting Israel. (False; he had destroyed all pre-Gulf War missiles, and in any event, these missiles did little damage when they actually hit Israel during the Gulf War).
  • Supported secular terrorists, especially against Israel, but not Al-Qaeda (true).

So, leaving off the caveats and qualifications, the intelligence community's truly independent judgment was that Saddam had up to 100 tons of chemical weapons (probably consisting mostly of mustard gas), and unknown arsenal of biological weapons, and 25-30 missiles capable of hitting Israel but unlikely, by themselves, to cause much damage. The obvious worst-case scenario to consider here would be arming the missiles with chemical or biological warheads and using them to hit Israel. It should not have been too difficult to figure how technically feasible such an attack was and how deadly it was likely to be.

If the conclusion was that such an attack was technically feasible and apt to be highly deadly, next would be the much more vague and subjective question of how likely Saddam would be to launch such an attack. The most likely predictor would be Saddam's past behavior. He had used chemical weapons, first against the Iranian Army and later against Kurdish rebels, confident that neither could retaliate. During the Gulf War against the United States which could retaliate and promised to, Saddam did not use chemical weapons. He appeared, therefore, to be deterrable. And Israel, certainly, had the capacity to retaliate for such an attack, though it might cause wider repercussions. Most probable conclusion: Saddam was unlikely to launch biological or chemical weapons against Israel out of fear of retaliation.

The decision whether to go to war is, indeed, the realm of policy makers, not of the intelligence community, but not everything is a supportable casus belli. A technically feasible, but almost certainly deterrable, possibility of chemical or biological attack on Israel does not sound supportable as grounds for war to me.