The Use of Force (and the Anticipated War With ISIS)

While it is perfectly appropriate for President Obama to ask the Congress of the United States to pass a joint resolution use of force authorization to deal with the threat of ISIS, it is imperative that Congress not pass a use of force authorization that restricts the Commander in Chief in the context of using that force. Even given that President Obama is asking Congress to pass a restricted use of force authorization that would in essence “tie his hands” in the conduct of the anticipated “war with ISIS,” it would be a strategic and tactical mistake to telegraph to ISIS any limitations on American military power. In addition, it is up to the President as the Commander in Chief to wage war, not Congress.

Historically, Congress rarely exercises its independent power to “declare war” under Article I of the Constitution and instead passes authorizations for the Commander in Chief to use force. In so doing, Congress generally does not authorize the use of military force with built in restrictions. For example, in the Use of Force Authorization against Iraq in 2002 the Congress gave President Bush the power to use our military force as “he determines to be necessary and appropriate.”

Here’s pertinent text from the joint resolution in October 2002 that gave President George W. Bush the authority to use force in Iraq: “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq.”

Following the attacks of 9/11, Congress passed a Use of Force resolution authorizing the Commander in Chief to take action to “prevent any future acts of international terrorism against the United States.” This authorization is still in effect and Congress placed no limit on where the President could use military force or for how long. Congress provided the President with solid authority to introduce America’s armed forces into hostilities as he saw fit. Passed only three days after 9/11 in an unprecedented show of unity, this resolution was passed by the Senate (98-0) and the House of Representatives (420-1) by an overwhelming majority, save one member from California.

That resolution specifically stated: “That 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 short, this Congress must not restrict the use of force against ISIS. Even if President Obama desires a restriction of American force, it is up to him as the Commander in Chief to wage the war, and Congress must provide him with all available options to do so.

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Obama and Radical Islam

Paris Rally

In the wake of the January 2015 terror attacks in France by Muslim terrorists, President Obama once again revealed a phenomenal lack of leadership when it comes to plainly dealing with Muslim terror. Not only did the President of the United States refuse to attend (or send a high-level representative) to the massive rally in Paris to denounce radical Islam, but the White House announced that it would not use the term Islam or radical Islam to describe the perpetrators of terror attacks. Instead, the new buzz words mandated by the Obama Administration are “violent extremism.” When White House press secretary Josh Earnest elaborated at a recent press conference for reporters: “We have chosen not to use that label [radical Islam] because it doesn’t seem to accurately describe what happened [in Paris],” even the liberal leaning National Public Radio media representative Mara Liasson seemed offended. Ms. Liasson grilled Mr. Earnest about why the White House consistently avoids any mention of Muslims or Islam in connection with the terror attacks carried out by Muslims. Of course, NPR finally realizes what common sense dictates — you cannot defeat the enemy unless you can identify the enemy. Radical Islam is the enemy that the civilized world is facing.

Just as the term “terrorist” does not describe the people that engage in the act, violent extremism fails to tell us who is carrying out these murders. To that extent, the label is worthless. During the six years of the Obama Administration to date, many have been frustrated by a lack of clarity and leadership when it comes to addressing the threat of radical Islam. For instance, instead of calling the April 2013 terrorist attack in Boston an act of radical Islamic terror, the bombings were labeled as terrorist attacks and the Muslim murders as “terrorists.” While it is true that the twin bombings at the Boston marathon by the Tsarmaev brothers were designed to instill fear, the motivation for the attacks must always serve as the key descriptive component. Furthermore, while the Tsarnaevs may have acted alone and without specific guidance, they were not simply lone-wolf terrorists. Like the Muslim terrorists in Paris, the brothers are part of a global alliance of individuals that pledge allegiance to the vision of radical Islam, tracing their immediate roots to Al-Qa’eda.

The good news, is that if NPR finally revolts over the Obama refusal to label radical Islam for what it is, perhaps there is yet hope that the people of this great nation will elect a leadership that can deal with reality as it is and not as they wish it to be.

Why I Disagree with the Senate Report on Torture (Part Two)

(Note: This is a continuation of a two-part post; the first past posted yesterday, and you can link to it here.)

The American position on the question of illegal interrogation practices is that the United States does not engage in torture or other ill-treatment, either in questioning or housing detainees. During the Bush Administration, U.S. National Security Council spokesman, Sean McCormack, exemplified the official stand: “The United States is treating enemy combatants in U.S. government control, wherever held, humanely and in a manner consistent with the principles of the Third Geneva Convention of 1949.” Of course, this is not to say that the United States did not then and does not now fully question detainees at a variety of levels. Government officials responsible for gathering information from detainees certainly employ the full range of permissible interrogation tactics measured against the existing law at the time. In other words, some “legal” interrogation practices from 2002-2005 would clearly be “illegal” today. The water boarding interrogation technique (called the most severe) used on a handful of detainees in the CIA program was viewed as constituting a level of force that did not rise to the level of torture under the Torture Convention.

In turn, the clandestine “black-site” detention facilities were established by the CIA in order to interrogate suspected high value al-Qa’eda personnel. The interrogations were initially conducted jointly by the CIA and FBI. With the capture of senior al-Qa’eda leader Abu Zubaydah during a raid in Pakistan in late March 2002, the CIA determined that it needed permission to use more aggressive interrogation techniques. The CIA psychologists proposed 12 so-called “enhanced interrogation techniques” (EITs) which they modeled entirely from practices used in the U.S. military’s Survival, Evasion, Resistance, and Escape (SERE) training program (except for the use of non-poisonous insects).

The SERE program is used to train pilots and special operations forces to withstand harsh and abusive treatment by the enemy should they be captured. Begun after the Korean War, tens of thousands of military personnel have gone through the program which subjects the participants to such things as stress positions, sleep deprivation, exposure to extreme cold or heat, and water boarding.

Understanding that the CIA would use the EITs on only senior members of al-Qa’eda who had knowledge of imminent terrorist threats against the United States, on August 1, 2002, the Office of the Legal Counsel (OLC), Department of Justice, issued two legal memorandums under the signature Jay S. Bybee, Assistant Attorney General, OLC. The classified version issued to the CIA, was entitled: Memorandum for John Rizzo, Acting General Council of the Central Intelligence Agency, Interrogation of al-Qa’eda Operative (classified Bybee memo). After reviewing the applicable international and domestic law to include statutes and case law, the classified Bybee memo concluded that “because the acts inflicting torture are extreme, there is sufficient range of acts that though they might constitute cruel, inhuman, or degrading treatment or punishment [ill-treatment] fail to rise to the level of torture.” In addition, the classified Bybee memo concluded that the infliction of severe physical or mental pain or suffering must be the “defendant’s precise objective.” Thus, noting that the SERE techniques produced no prolonged mental harm that would violate the Torture Convention, the classified Bybee memo authorized the CIA to use 10 of the 12 proposed EITs. Each technique was carefully described in the legal memorandum, along with restrictions and safeguards which required, for instance, the presence of psychologists and medical personnel along with the interrogator. The approved techniques were:

(1) Attention grasp: The interrogator grasps the subject with both hands, with one hand on each side of the collar opening, in a controlled and quick motion, and draws the subject toward the interrogator.
(2) Walling: The subject is pulled forward and then quickly and firmly pushed into a flexible wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.
(3) Facial hold: The Interrogator holds the subject’s head immobile by placing an open palm on either side of the subject’s face, keeping fingertips well away from the eyes.
(4) Facial or insult slap: With fingers slightly spread apart, the interrogator’s hand makes contact with the area between the tip of the subject’s chin and the bottom of the corresponding earlobe.
(5) Cramped confinement: The subject is placed in a confined space, typically a small or large box, which is usually dark. Confinement In the smaller space lasts no more than two hours and in the larger space, up to 18 hours.
(6) Insects: A harmless insect is placed in the confinement box with the detainee.
(7) Wall standing: The subject may stand about four to five feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on a wall to support all of his body weight. The subject is not allowed to reposition his hands or feet.
(8) Stress positions: These positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle.
(9) Sleep deprivation: The subject is prevented from sleeping, not to exceed 11 hours at a time.
(10) Waterboard: The subject is restrained on a bench with his feet elevated above his head. His head is immobilized and an interrogator places a cloth over his mouth and nose while pouring water onto a cloth. Airflow is restricted for 20 to 40 seconds; the technique produces the sensation of drowning and suffocation.

Despite the many gross distortions which continue to circulate about the CIA program in general, and water boarding in particular (which was deemed to be the worst of the EITs), the water boarding approved EIT was only used on three of the high value detainees in CIA hands: Abu Zubaydah, Abd Al-Rahim Al-Nashiri (captured in November 2002), and Khalid Sheik Muhammed (captured in March 2003). Abu Zubaydah was waterboarded 83 times, the majority of which lasted less than ten seconds and Khalid Sheik Muhammed was waterboarded 180+ times. Apparently, however, there is evidence that some of the interrogators may have engaged in illegal conduct in their individual capacities. Allegations of verbal threats to Abu Zubaydah and pointing an unloaded pistol next to Al-Nashiri’s head have surfaced and are being investigated by the Obama Administration. In any event, in the fall of 2005, as Congress was crafting the Detainee Treatment Act of 2005, the CIA removed water boarding from the list of EITs. No one has been waterboarded (with the exception of US military personnel) since 2005. Although the 2006 Military Commissions Act attempted to circumvent the ruling in Hamdan as applying to the CIA (by redefining certain abuses that could be considered to constitute a war crime under the War Crimes Act, 18 U.S.C. § 2441) President Obama’s Executive Order 13491 issued in January 2009, directs the CIA and all federal agencies to proceed with interrogations “strictly in accord with the principles, processes, conditions, and limitations [FM 2-22.3] prescribed.” Today there is no difference between what the military and other federal agencies can do in terms of conducting an interrogation.

The story of “Half-Dead Bob” reported by U.S. News and World Report typifies the al-Qa’eda mindset while illustrating the American policy of humane treatment of detainees in accordance with the principles of the Geneva Conventions. An Arab captured on the battlefield of Afghanistan was nicknamed “Half-Dead Bob” by the Americans when he arrived at Guantanamo Bay. His nickname derived from the fact that he came to the detention center weighing 66 pounds, suffering from tuberculosis, shrapnel wounds, and having only one lung. The article states:

Army Maj. Gen. [Major General] Michael Dunlavey vividly remembers his first encounter with “Bob.” Dunlavey ran interrogations at the base until November of last year. By the time they met, Bob was making a rapid recovery. He had put on 50 pounds and, sitting across a table from Dunlavey, he thanked him for the food and medical treatment. “General, you are probably a good Christian,” Dunlavey recalls him saying. “And you are probably a good man. But, if I ever get free, I will kill you.”

In the early years following 9/11, weighing the credibility of charges that the United States engaged in torture or ill-treatment as a standard practice was difficult at best. On the one hand, suggestions of torture generally came from media reports based on unnamed sources and anecdotal evidence. On the other hand, the government’s penchant for secrecy regarding interrogation tactics made it next to impossible to make an independent assessment. Today, it is now clear that the United States did not engage in a systemic command directed interrogation regime that violated international or domestic law. In June 2004, President Bush declared, “Look, let me make very clear the position of my government and our country. We do not condone torture. I have never ordered torture. The values of this country are such that torture is not a part of our soul and being.”

Again, apart from the moral argument and speaking strictly from a legal perspective, the United States cannot engage in torture. This is in violation of the Torture Convention and is penalized under domestic law. This is the baseline legal consideration. Following 9/11 both the military and CIA employed tactics that entered an ambiguous legal zone from 2002-2005. As foreboding as some of the outlined techniques may have appeared, there were many techniques that involved acts which were clearly permissible under any analysis. For example, one would be hard pressed to argue that the reported use of female interrogators, trickery, or a day long interrogation session would have ever constituted a prima facie case of even ill-treatment as some have suggested. Further, one could not automatically conclude that the use of awkward positioning of a particular detainee violated legal norms.

Accordingly, from 2002-2005 top legal advisors concluded that the United States could legitimately engage in interrogation practices that did not rise to the level of torture. By late 2005, however, the law quickly changed and continued to the point of absurdity where interrogators today may essentially not question a detainee without the express permission of the detainee. In fact, at Guantanamo Bay, it is forbidden for an American soldier who is not a Muslim to hand any religious object to a detainee as this would be “degrading” and in violation of Common Article 3! In short, our interrogation programs are now driven by “political correctness.”

At the end of the day, the reasonable observer must conclude that allegations that the United States condones and uses torture and ill-treatment as interrogation tools are vastly overstated and often simply taken for granted even by those who should know better. For instance, in his book, The Case for Israel, Dershowitz charged that the United States engages in “modified forms of torture that include physical and psychological components.”

The purpose of detainee interrogation is to glean as much intelligence as possible from individuals who have information associated with the al-Qa’eda terrorist network and all associated terror networks. The goal is to apprehend as many of the terrorists as possible and to prevent future acts of terror on our people with particular concern for the likelihood that our enemies will surely use weapons of mass destruction against us. To date, interrogations have yielded much valuable information. According to the Jacoby Declaration the United States thwarted over 100 terrorist attacks worldwide based on information provided in part from detainee interrogations conducted in 2002. Hopefully, the Senate and the Obama Administration will release similar reports showing how many lives were saved because of the CIA interrogation program.

One matter is fundamentally certain: if al-Qa’eda is to be kept at bay, the United States must rely on detainee interrogation as an integral antiterrorist tool. The need for the interrogator to get information to protect the lives of innocents is a legitimate and perfectly lawful exercise. By its very nature, even the most reasonable interrogation places the detainee in emotional duress and causes stress to his being—both physical and mental. Still, a reasonable interrogation must necessarily be free of torture or ill-treatment.

Why I Disagree With Today’s Senate Report on Torture (Part One)

With today’s release of the Senate Report on the CIA’s interrogation practices for a small number of high value detainees (about 100) held by the CIA a decade ago, the false claims of American “torture” are once again being paraded across the media. Not only is the timing of the release bad for our national security – we are still at war with al-Qa’eda and “associated forces” of radical Islam – it is simply false that the techniques approved by the Department of Justice for use by the CIA constituted “torture.” This is not to say that individuals in their individual capacity did not violate directives and even the law on “torture.”

And of course, there is that magical word – “torture.” Allegations of torture roll off the tongue with great ease. In fact in May 2009, I testified in Washington DC before the United States Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts. The Senate hearing headed by the political party that then controlled the Senate majority was entitled: “What Went Wrong: Torture and the Office of the Legal Counsel in the Bush Administration.” In short, their minds were already made up!

Indeed, in the context of American interrogation practices and treatment of detainees, charges of torture are regularly raised by a variety of individuals and interest groups often associated with fixed political agendas. Recognizing that not every alleged incident of mistreatment necessarily satisfies the legal definition of torture, it is imperative that one views such allegations with a clear understanding of the applicable legal standards set out in law and judicial precedent. In this manner, claims of illegal interrogation practices can be properly measured as falling above or below a particular legal threshold. Only then can one hope to set aside the shrill rhetoric by such groups as the American Civil Liberties Union (ACLU) or Amnesty International, who once called the Guantanamo detention facility the “gulag of our time,” and objectively establish whether or not the United States stands in violation of the rule of law.

Starting in 2005 three important developments has shaped U.S. policy and law in terms of interrogation techniques. In the context of enemy combatants under the control of the U.S. government, the Detainee Treatment Act of 2005 adopted international human rights terminology in setting out interrogation limits. In short, American interrogators could not engage in “cruel, inhuman and degrading treatment or punishment of persons under detention, custody, or control of the United States Government.” Pursuant to the so-called McCain Amendment, “cruel, unusual, and inhuman treatment or punishment” covers all those acts prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution, as previously stated in the U.S. reservations to the Torture Convention. The second development was the Hamdan case and the resulting 2006 Military Commissions Act which applied the provisions of Common Article 3 of the Geneva Conventions to all detainees. Finally, Executive Order 13441 issued by President Obama in January 2009, now requires all U.S. agencies (to include the CIA) to comply with the new Bush-era Army Field Manual on interrogations (FM 2-22.3) which specifically outlaws: (1) forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; (2) placing hoods or sacks over the head of the detainee, or using duct tape over the eyes; (3) applying beatings, electric shock, burns, or other forms of physical pain; (4) water boarding; (5) using military working dogs; (6) inducing hypothermia or heat injury; (7) conducting mock executions; and (8) depriving the detainee of necessary food, water, or medical care. Still, President Obama’s order does allow federal agencies to employ non-coercive techniques and established a High-Value Detainee Interrogation Group (HIG), composed of experienced interrogators and support personnel from law enforcement, the DOD, and the intelligence community.

Bluntly put, did the United States employ illegal interrogation methods in the War on Terror, particularly between the years 2002-2005, as some have charged? The answer is no.

(Tomorrow, I’ll continue this article with specific interrogation techniques the CIA was approved to use in gathering information from senior al-Qa’eda leaders, along with additional details pertinent to this ongoing discussion.)

Why ISIS Is More Dangerous Than al-Qa’eda, and What We Should Do to Stop Them

Foley video

The recent release of the horrifying ISIS/James Foley video, showing a hooded member of yet another radical Islamic group in the Middle East beheading an American journalist, brought front page publicity around the world. The murderer is believed to be a British foot soldier from a group known as ISIL (Islamic State in the Levant) or ISIS (Islamic State in Syria), but is also called IS (Islamic State). While ISIS shares with all jihadists everywhere the desire to create a global Islamic caliphate by means of the violent destruction of the West and all “infidels,” what makes ISIS so very dangerous is that it is the first radical Islamic group since 9/11 to actually achieve significant and visible success towards the dream of world domination. They have an army of tens of thousands of armed men, a war chest of billions of dollars, and control of thousands and thousands of square miles in Iraq and Syria. They are on the move and they are dangerous to America.

Despite having a one-time affiliation with al-Qa’eda (ISIS was known during the Bush Administration as al-Qa’eda in Iraq), al-Qa’eda publicly broke its ties with ISIS this past February. According to a Washington Post article, the break was in part because ISIS was deemed too violent and disruptive in their tactics, particularly when it came to dealing with fellow Muslims (ISIS regularly engages in mass executions, beheadings, floggings, and even bans smoking, drinking, music and other perceived un-Islamic behaviors. In their reading of the Koran, the brutality of ISIS is proper because it is mandated as an obligation from God (Allah) and in keeping with the military conquests of their prophet Mohammed from the 7th Century AD. The article notes:

The al-Qaeda statement suggested that the notorious intractability of ISIS, the most extreme of the Islamist groups fighting in Syria, was to blame for the break. It cited the importance of “consultation” and “teamwork,” qualities that ISIS has ignored in its aggressive expansion across northern Syria since it announced its formation last April.

Nevertheless, in winning victory after victory on the battlefields of Iraq and Syria (sometimes against incredible odds), ISIS has inspired jihadists around the globe to either join them (at least 100 Americans are believed to have traveled to the Middle East to join ISIS) or to conduct terror attacks on their own. Indeed, the FBI and DHS recently warned of the threat of terror attacks in the US by those sympathetic to ISIS in retaliation for US airstrikes against the group.

From the perspective of our own national security there are two issues that need to be firmly addressed. First, what can be done to stop the homegrown jihadists in the United States who pledge allegiance to the vision of radical Islam and are no doubt inspired to action by the rise of ISIS? Second, as ISIS grows in strength and develops a firm infrastructure in the Middle East, what can be done to blunt ISIS and their stated desire to send terrorists to the United States to conduct attacks on the homeland?

Obama in tan suit

Although well aware of the rise of ISIS over the past year, President Obama chose to ignore the movement, calling it “JV” in scope. Now, with ISIS gobbling up one-fourth of Iraq in its blitzkrieg, it is clear that the president was the one that was JV in scope. In turn, the limited U.S. airstrikes now ordered by President Obama are helpful but insufficient. And as of this writing, President Obama has simply admitted that he does not have a strategy to deal with ISIS. Not a great signal of strong and decisive leadership. Perhaps, however, President Obama will come to the logical conclusion that massive lawful violence is the only thing that will solve this problem. ISIS has declared its war on America and we must respond in kind.

Obviously, the proper American strategy vis a vis ISIS is simple. The movement must be crushed. The tactics to carry out this strategy are also rather simple.

  • First, America must supply the Kurds with every military asset they need to maintain their autonomy in the north of Iraq. ISIS must be kept out. The Kurds are our strongest and most faithful ally in the region (apart from Israel).
  • Second, to the degree deemed necessary, America must side with the dictator Assad in Syria to enable us to gather needed intelligence on where ISIS is weakest and strongest in Syria. This notion of using one evil to defeat another evil is pragmatic. In World War II, the US sided with Stalin (who was evil) to defeat Hitler (who was evil and attacking other nations). When Hitler was defeated we began the Cold War with Stalin. Assad is not as bad as ISIS.
  • Third, America must use its vast military air power to kill the thousands of ISIS fighters and “stack them like cord wood for a cold winter’s night.” Since ISIS is out in the open, and not an underground movement like al-Qa’eda, this will not be that difficult to accomplish.

The results are certain. Once ISIS is crushed, those that are now inspired by these radical Islamists will retreat back into the shadows of civilized society. In America, you can entertain the vilest thoughts, as long as you do not solicit, conspire, or engage in violence to carry out those thoughts.

If President Obama does nothing or dithers with half measures, there are certainly more attacks to come from ISIS and those inspired by ISIS. In the wake of new set of terrorist attacks on American soil perhaps more will question why America’s leadership didn’t do something about ISIS sooner.

A New Way to Fight Terrorism?

Earlier this week, I was interviewed for a Bloomberg News story looking at a case involving a suicide bombing in Jerusalem last year — which was allegedly the work of Hamas. The case went beyond trying terrorists, though. The case involved Amman, Jordan-based Arab Bank, being brought to court in New York in connection with a provision of the Anti-Terrorist Act allowing U.S. citizens who are victims of terrorism sue supporters of attacks. Two survivors of the bombing, by virtue of holding dual U.S./Israeli citizenships, were allowed to take Arab Bank to court, alleging that the bank is providing banking and other services allowing Hamas to carry out terrorist attacks.

This is the first test case for this provision of the act — it’s a new way to combat terrorism that might just be one of the most powerful weapons we have at our disposal. As I told Bloomberg, “These groups can’t operate unless money is flowing into them. I think this is the new wave, if you want to fight terrorism. It’s finding ways to cripple them financially.”

I’m very interested to see how this case turns out, and if Arab Bank is held responsible, to see what further steps banks might take to screen customers and monitor account activity.

Why the Malaysian Airlines Plane Was Downed: My Interview with KSAT

Last Thursday, I was called back to KSAT’s studios (after my interview earlier in the week about the ongoing Bowe Bergdahl case) about the downed Malaysian Airlines jet yesterday. While seemingly a senseless tragedy, and initially appearing to be the work of terrorists, it’s actually part of a very specific strategy to draw the Russian military into an ongoing battle over the future of Ukraine.

As I told KSAT in this interview, the downing of the plane was the result of pro-Russian separatists, who may have not intended to take down a commercial airline with several hundred innocents aboard. They did, however, definitely mean to take down a plane.

Specifically, I said:

“They realize they cannot win without the support of the Russian military. The Russian military has been reluctant to intervene further so the separatists are using this opportunity to force the Russians to show their hand. This is not an oops. It’s an intentional downing of an aircraft. Whether they knew it was a jetliner or they imagined it was a military aircraft, we don’t know. They intentionally wanted to shoot down an aircraft and they did.”

Since President Obama provided virtually no response to Russia’s annexation of the Crimea earlier this year, the separatists may have been emboldened by the relative lack of reaction. Their goal is to force Russia’s hand into “liberating” them from the rest of the Ukraine, but they’re also forcing the United States’ hand in the process. The United States was in a difficult position even before this act of aggression, but now, they’re in an even more difficult position.