Staying in Afghanistan Is a Recipe for More Terrorism

Global Opposition to U.S. Drone StrikesBarack Obama is daring the terrorists. He’s standing in their front yard. He’s calling them out.

Of course, that’s not how it’s reported. “U.S. ‘nowhere near’ decision to pull all troops out of Afghanistan,” was the understated Reuters headline. Under negotiation is an agreement keeping 8,000 to 10,000 American troops in Afghanistan “through 2024 and beyond.” Also on the table are night raids and drone strikes that Afghan President Hamid Karzai refuses to allow.

This is madness. “If the job is not done,” said the Russian ambassador to Kabul, “then several thousand troops…will not be able to do the job that 150,000 troops couldn’t do.”

The only thing worse than the hopelessness of this plan is the backwardness of it. In an effort to prevent terrorism, we are continuing the very thing that creates terrorism: our presence!

Al Qaeda “has been precise in telling America the reasons [it’s] waging war on us,” according to CIA analyst Michael Scheuer, who tracked Osama bin Laden from 1996 to 1999. “None of the reasons have anything to do with our freedom, liberty, and democracy, but have everything to do with U.S. policies and actions in the Muslim world.”

In his book Dying to Win: The Strategic Logic of Suicide Terrorism, political scientist Robert Pape analyzed every known case of suicide bombers from 1980 to 2005. He found that “what nearly all suicide terrorist attacks have in common is a specific secular and strategic goal: to compel modern democracies to withdraw military forces from territory that the terrorists consider to be their homeland.” Specifically, he discovered that “al Qaeda is today less a product of Islamic fundamentalism than of a simple strategic goal: to compel the United States and its Western allies to withdraw combat forces from the Arabian Peninsula and other Muslim countries.”

The Obama administration can’t pretend that it doesn’t know this fact. In 2004, the Pentagon concluded that “American direct involvement in the Muslim World has paradoxically elevated the stature of and support for radical Islamists, while diminishing support for the United States to single-digits in some Arab societies. Muslims do not ‘hate our freedom,’ but rather, they hate our policies. [In] the eyes of the Muslim world, American occupation of Afghanistan and Iraq has not led to democracy there, but only more chaos and suffering.”

Firsthand accounts confirm these conclusions. British journalist Johann Hari interviewed former Islamic militants who had since rejected jihad. He probed them, in independent interviews, about what made them join the cause in the first place. “Every one of them said the Bush administration’s response to 9/11 — from Guantanamo to Iraq — made jihadism seem more like an accurate description of the world.” One of them put it this way: “You’d see Bush on the television building torture camps and bombing Muslims and you think — anything is justified to stop this. What are we meant to do, just stand still and let him cut our throats?”

New York Times reporter David Rohde saw this attitude up close when the Taliban held him hostage for seven months. Looking back on his captors, he remembered, “Commanders fixated on the deaths of Afghan, Iraqi and Palestinian civilians in military airstrikes, as well as the American detention of Muslim prisoners who had been held for years without being charged.”

BBC journalist Owen Bennett-Jones found the same reaction in his research on the drone strike that killed Taliban leader Hakimullah Mehsud earlier this year. “Although many Pakistanis were happy that Mehsud was no long threatening them,” Bennett-Jones reports, “their relief was outweighed by the thought that the US’s use of drones in Pakistan was an unacceptable breach of sovereignty and a national humiliation.” The result was “a wave of sympathy in the country” for Mehsud and his fellow terrorists.

“As I travelled around the Middle East during the Arab Spring,” writes Bennett-Jones in this week’s London Review of Books, “the word that most often cropped up in the slogans in various capitals was not ‘freedom’ – the one the Western media recognised and highlighted – but ‘dignity.'”

These are the sad facts of a desperate region. We do not condone their violence, but we must understand their motives.

American troops, night raids, and drone strikes in Afghanistan will only make it easier for terrorists and insurgents to recruit angry young men to fight and die for their cause. By extending the occupation into perpetuity, we are not stopping terrorism at the source, as President Obama would have us believe. We are multiplying their ranks. We are taunting and humiliating them. We are endangering our nation.

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This op-ed was published in today’s South Florida Sun-Sentinel and Huffington Post.

Why the National Defense Authorization Act of 2012 Is Unconstitutional

Earlier this week, Judge Katherine B. Forrest (U.S. District Court for the Southern District of New York) ruled that the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA) is unconstitutional. Forrest issued an injunction prohibiting the government from enforcing the provision.

In celebration of this decision, we will publish an excerpt of Forrest’s opinion — but first, a bit of background…

The provision in question dates back to an earlier version in the Authorization for Use of Military Force Against Terrorists (AUMF) resolution passed by Congress on September 14, 2001. The AUMF states:

The 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.

In interpreting this law, the government took a controversial position:

The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.

This interpretation was widely considered to be an illegal expansion of powers granted under the AUMF, and therefore Congress expanded the language in this year’s NDAA. Notice the new powers granted under Section 1021(a):

Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

This section gives the military to detain prisoners indefinitely without a trial. Next, Section 1021(b) defines who those prisoners may be:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

Okay, nothing new yet. That’s the same language we saw in the AUMF. But wait, there’s more:

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

If you’re wondering what some of these terms mean, join the club. The NDAA doesn’t define them. And that’s what caused the lawsuit:

Plaintiffs are a group of writers, journalists, and activists whose work regularly requires them to engage in writing, speech, and associational activities protected by the First Amendment. They have testified credibly to having an actual and reasonable fear that their activities will subject them to indefinite military detention pursuant to § 1021(b)(2).

…which brings us to a lightly edited excerpt from Judge Forrest’s opinion:

As the Second Circuit recently stated in Commack Self-Service Kosher Meats v. Hooker, “When a statute is capable of reaching expression sheltered by the First Amendment,” a greater degree of specificity is required so that parties may know what actions may fall within the parameters of a statute. Section 1021(b)(2) is devoid of the required specificity.

At the March hearing, plaintiffs testified credibly to their specific past activities and concerns. At that hearing, the Court repeatedly asked the Government whether those particular past activities could subject plaintiffs to indefinite military detention; the Government refused to answer.

Several weeks later, the Government changed its position entirely — from its prior assertion that it would not state whether plaintiffs’ activities could subject them to detention under § 1021 to a qualified one: “the conduct alleged by plaintiffs is not, as a matter of law, within the scope of the detention authority affirmed by section 1021.”

The Government did not put forth a witness to explain the difference between its first, March position and its second. Nor did it provide the Court with a reason that this second position is the binding one, or why the new position does not leave plaintiffs at the mercy of “noblesse oblige.” There is no guarantee that the position will not — or cannot — change again.

In addition, at the March hearing the Government was unable to offer definitions for the phrases “substantially support” or “directly support.”

The Government could have offered that no one has in fact been detained for any activities protected by the First Amendment. The Government also could have presented evidence regarding the decision-making process for § 1021(b)(2) enforcement determinations — namely, the type of checks and balances that may exist to ensure consistent and non-arbitrary enforcement. [It did not.]

The Government quite carefully avoids arguing that § 1021(b)(2) does not encompass activities protected by the First Amendment. Not once in any of its submissions in this action or at either the March or August hearings has the Government said, “First Amendment activities are not covered and could never be encompassed by § 1021(b)(2).”

In United States v. Stevens, Justice Roberts wrote, “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment reflects a judgment by the American  people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

The Court finds that § 1021(b)(2) is facially unconstitutional: it impermissibly impinges on guaranteed First Amendment rights and lacks sufficient definitional structure and protections to meet the requirements of due process.

The Government argues that even if plaintiffs have standing, this Court should essentially “stay out of it” — that is, exercise deference to the executive and legislative branches and decline to rule on the statute’s constitutionality. [But] the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive’s conduct in the name of deference would be to abdicate this Court’s responsibility to safeguard the rights it has sworn to uphold.

In Hamdi v. Rumsfeld, the Supreme Court stated:  “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

In rejecting the Government’s view of its sweeping detention authority, the Supreme Court stated in Hamdi: “[A]s critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of a threat.” Citing O’Connor v. Donaldson, the Court continued: “[W]e live in a society in which ‘[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty.‘”

In Ex parte Merryman, the Supreme Court made clear that the President does not have the power to arrest; that the liberty of the citizen is not conferred on the President to do with what he will; and that no argument will be entertained that it must be otherwise for the good of the government.

In the Brig Amy Warwick, the Government had similarly argued that the judiciary should not — or perhaps could not — rule on certain issues. There, the Supreme Court stated, “The principle of self-defense is asserted; and all power is claimed for the President. This is to assert that the Constitution contemplated and tacitly provided that the President should be dictator, and all Constitutional Government be at an end, whenever he should think that the ‘life of the nation’ is in danger… It comes to a plea of necessity. The Constitution knows no such word.”

In United States v. Curtiss-Wright Export Corp., while acknowledging the President’s pre-eminent role in foreign affairs, the Supreme Court also acknowledged that that power does not extend to all domestic affairs. He cannot, for instance, determine whom to arrest domestically; the scope of the arrest authority is determined by criminal statutes.

There are laws that provide for arrest of individuals engaged in “material support” of terrorist organizations. As a criminal statute, those prosecuted pursuant to it are entitled to full due process under the Constitution.

Moreover, there are a variety of criminal statutes that capture speech or associational activities which are involved in criminal activities.  There is no reason for § 1021(b)(2) to encroach on protected First Amendment rights.

Staying in Afghanistan Is a Recipe for More Terrorism

Barack Obama is daring the terrorists. He’s standing in their front yard. He’s calling them out.

Of course, that’s not how it’s reported. “US troops may stay in Afghanistan until 2024,” was the understated headline in The Telegraph. Under negotiation is an agreement keeping 25,000 American troops in Afghanistan a full decade after the current withdrawal deadline. Also on the table are military bases that the United States doesn’t want to give up…ever.

This is madness. “If the job is not done,” said the Russian ambassador to Kabul, “then several thousand troops…will not be able to do the job that 150,000 troops couldn’t do.”

The only thing worse than the hopelessness of this plan is the backwardness of it. In an effort to prevent terrorism, we are continuing the very thing that creates terrorism: our presence!   Continue reading “Staying in Afghanistan Is a Recipe for More Terrorism”

What to Read on Iran

Iran’s Ties to the Taliban — Mohsen Milani

Iran’s views of the Taliban have changed considerably since 2001. Iran did not recognize the Taliban government and considered them an ideological nemesis and a major security threat that was created by Pakistan’s ISI, with generous financial support from Saudi Arabia partly for the purpose of spreading Wahhabism and undermining Iran. When the Taliban were in power in the 1990s, Iran, along with India and Russia, provided significant support to the Northern Alliance, which was the principal opposition force to Taliban rule and eventually dislodged them. Iran also contributed to dismantling the Taliban regime and to establishing a new government in Kabul in 2001.

Ironically, the strategic interests of Tehran and Taliban have converged today, as each, independent of the other and for different reasons, oppose the presence of foreign troops in Afghanistan and demand their immediate and unconditional withdrawal.

A Taliban-dominated government is clearly not in Iran’s long-term interests, since it would generate considerable tension and conflict between Iran and Afghanistan and would inevitably lead Pakistan, and to a lesser extent Saudi Arabia, becoming dominant foreign powers in Afghanistan, which Tehran vehemently opposes. At the same time, Tehran has for many years maintained that political stability in Afghanistan can be achieved only if the government reflects the rich ethnic and sectarian diversity of Afghanistan itself. Iran, more than anything else, wants to see a stable and friendly government in Kabul. Tehran now seems convinced that without Taliban participation in the government, as a partner but not as the main force, stability would be unattainable.

Tehran has attempted in vain to convince Karzai to call for the withdrawal of Western troops. Tensions between the two neighbors are likely to increase if there is a new agreement between Washington and Kabul about establishing permanent U.S. military bases in Afghanistan.

Mousavian: Iran Is Ready to Negotiate…If — Semira Nikou

The supreme leader, Ayatollah Ali Khamenei,…does not object to transparency because he already issued a fatwa in 1995 against weapons of mass destruction. But he is against discrimination, suspension [of uranium enrichment], and the deprivation of Iran’s rights under the Nuclear Non-Proliferation Treaty (NPT).

On the nuclear issue, the end state for the Iranians is full rights under the NPT, without discrimination over enrichment. Other countries enrich but do not face sanctions. The nuclear impasse will not be resolved as long as U.N. resolutions are enforced because they require Iran to indefinitely suspend enrichment and provide access to sites and scientists for an indefinite period. These conditions extend beyond the framework of NPT.

Iran views indefinite suspension as a way for the P5+1 (five permanent members of the U.N. Security Council plus Germany) to buy time for a long-term ban on Iran’s enrichment program and ultimately its discontinuation.

Iran and al-Qa’ida: Can the Charges Be Substantiated? — Flynt Leverett & Hillary Mann Leverett

[The] Iranians raised, almost immediately after the U.S. invasion of Afghanistan, the problem of al-Qa’ida personnel trying to make their way from Afghanistan into Iran…

…Tehran documented its detention of literally hundreds of suspected al-Qa’ida operatives, repatriated as many of these detainees to their countries of origin as it could, and requested U.S. assistance in facilitating repatriations of detainees whose governments did not want to cooperate (a request the Bush Administration denied).

…Iranian officials acknowledged that a small group of al-Qa’ida figures had managed to avoid capture and enter Iranian territory, most likely through Sistan-Balochistan, in 2002. The Iranian government located and took some of these individuals into custody and said that others identified by the United States were either dead or not in Iran. At the beginning of May 2003, after Baghdad had fallen, Tehran offered to exchange the remaining al-Qa’ida figures in Iran for a small group of MEK commanders in Iraq, with the treatment of those repatriated to Iran monitored by the International Committee for the Red Cross and a commitment not to apply the death penalty to anyone prosecuted on their return. But the Bush Administration rejected any deal.

Of the six al-Qa’ida operatives sanctioned by the Treasury Department last week, only one is alleged to be physically present in Iran — and, by Treasury’s own account, he is there primarily to get al-Qa’ida prisoners out of Iranian jails. Moreover, the United States apparently has no hard evidence that the Iranian government is supportive of or even knowledgeable about the alleged al-Qa’ida network in the Islamic Republic.