Wednesday, March 28, 2012

In Defense of Dina

Glenn Greenwald of Salon launched an attack on Dina Temple-Raston of NPR yesterday, beginning:
It is well worth listening to this 4-minute NPR story from this morning (embedded below) on the grave and growing menace of “state-sponsored Terrorism” from Iran. NPR national security reporter Dina Temple-Raston does what she (and NPR reporters generally) typically do: Gathers a couple of current and former government officials (with an agreeable establishment think-tank expert thrown in the mix), uncritically airs what they say, and then repeats it herself. This is what establishment-serving journalists in Washington mean when they boast that they, but not their critics, engage in so-called “real reporting”; it means: calling up Serious People in Washington and uncritically repeating what they say (see here and here for the episode when Temple-Raston voiced that basic claim to me, as she boasted of special knowledge she possessed about Anwar Awlaki’s guilt obtained when unnamed government officials whispered assertions to her in private which she then uncritically repeated: That’s real reporting).
That's as far as I got. Why? Well, I was distracted by his venomous description of the job done by Temple-Raston and NPR. I share Greenwald's suspicion of reliance on unnamed government sources and leaks. Those leaks are often self-serving and, in the context of national security, can be particularly vexing. Witness the government's leaks regarding Anwar al-Aulaqi's addition to targeted killing lists and then its claim, when sued by al-Aulaqi's father to enjoy his killing, that to reveal the existence (or not) of the targeted killing list(s) and to reveal al-Aulaqi's presence (or not) on it would reveal a state secret, thus requiring the suit's dismissal. 

Yet, sometimes the leaks and unnamed government sources are providing journalists and their readers with good, useful information. It is with this sentiment in mind that I watch one of the videos Greenwald links to--a previous exchange with Temple-Raston--in an attempt to denigrate her reporting. Begin listening at 53:00:

Notice this exchange. Dina Temple-Raston is attempting to very politiely correct the record based not on what she's heard but what she's actually seen: Umar Farouk Abdulmuttalib's statement to the government after being taken into custody. Greenwald cannot be bothered to be civil to Temple-Raston let alone process what she's saying. The fact that her source is the government--regardless of whether she's witnessed something bearing out the source's statement--is fatal for Greenwald. There is no way Temple-Raston's objection that al-Aulaqi is actually an operational, and not merely inspirational leader, of AQAP is correct, according to Greenwald.

Fair enough. This exchange occurred in November 2010 and there was little reason for Greenwald to be swayed. Indeed, the government had just had al-Aulaqi's father's suit dismissed on questions of justiciability, hinting that, even if those weren't there, the state secrets doctrine would have applied despite the government's earlier self-serving leak. At the time, when I was grappling with this case myself, I was similarly skeptical and only just coming around to the notion that al-Aulaqi was, in fact, operational and not merely inspirational.

But Greenwald is linking to this exchange today, 18 months later, to demonstrate that Temple-Raston's reporting is erroneous. What's the difference between November 2010 and March 2012, well, Abdumutallib has been charged, tried (plead out, actually), and sentenced. And, in the sentencing memorandum (see pages 12-14), we read, based on Abdumutallib's sworn statement:

Once in Yemen, defendant visited mosques and asked people he met if they knew how he could meet Awlaki.  Eventually, defendant made contact with an individual who in turn made Awlaki aware of defendant’s desire to meet him.  Defendant provided this individual with the number for his Yemeni cellular telephone.   Thereafter, defendant received a text message from Awlaki telling defendant to call him, which defendant did.  During their brief telephone conversation, it was agreed that defendant would send Awlaki a written message explaining why he wanted to become involved in jihad.  Defendant took several days to write his message to Awlaki, telling him of his desire to become involved in jihad, and seeking Awlaki’s guidance.  After receiving defendant’s message, Awlaki sent defendant a response, telling him that Awlaki would find a way for defendant to become involved in jihad.
Thereafter, defendant was picked up and driven through the Yemeni desert.  He eventually arrived at Awlaki’s house, and stayed there for three days.  During that time, defendant met with Awlaki and the two men discussed martyrdom and jihad.  Awlaki told defendant that jihad requires patience but comes with many rewards.  Defendant understood that Awlaki used these discussions to evaluate defendant’s commitment to and suitability for jihad. Throughout, defendant expressed his willingness to become involved in any mission chosen for him, including martyrdom - and by the end of his stay, Awlaki had accepted defendant for a martyrdom mission.
Defendant left Awlaki’s house, and was taken to another house, where he met AQAP bombmaker Ibrahim Al Asiri.  Defendant and Al Asiri discussed defendant’s desire to commit an act of jihad.  Thereafter, Al Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval, and instructed Defendant Abdulmutallab on it.  For the following two weeks, defendant trained in an AQAP camp, and received instruction in weapons and indoctrination in jihad.  During his time in the training camp, defendant met many individuals, including Samir Khan.
Ibrahim Al Asiri constructed a bomb for defendant’s suicide mission and personally delivered it to Defendant Abdulmutallab.  This was the bomb that defendant carried in his underwear on December 25, 2009.  Al Asiri trained defendant in the use of the bomb, including by having defendant practice the manner in which the bomb would be detonated; that is, by pushing the plunger of a syringe, causing two chemicals to mix, and initiating a fire (which would then detonate the explosive). Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack.  Awlaki arranged for a professional film crew to film the video.  Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days.  The full video was approximately five minutes in length.
Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil.  Beyond that, Awlaki gave defendant discretion to choose the flight and date.  Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion.  As a result, defendant took a circuitous route, traveling from Yemen to Ethiopia to Ghana to Nigeria to Amsterdam to Detroit.  Prior to defendant’s departure from Yemen, Awlaki’s last instructions to him were to wait until the airplane was over the United States and then to take the plane down.
The sentencing memorandum, relying on Abdulmuttalib's sworn statement, bears out al-Aulaqi's operational role within AQAP. Moreover, the court's statement implicitly verifies Temple-Raston's comments to Greenwald in November 2010. It would appear that Temple-Raston had in fact seen something Greenwald had not. Despite his skepticism at the time, deserved or not, Temple-Raston was right and Greenwald was wrong. And that completely undermines Greenwald's sarcastic introduction. In fact, Temple-Raston wasn't uncritically relying on the assurances of an officer of the U.S. government. Instead, as she tried to explain in November 2010, she had seen the evidence for herself--a self-authenticating sworn statement from the perpetrator of an attempted terrorist attack.

None of this is to suggest that we, the public, should adopt a Polyannaish approach to journalists who rely on unnamed government sources. No, Judy Miller--along with many like her who came before--destroyed any suggestion that that might be okay. But neither is it reasonable to dismiss out of hand any journalist who does have access to government source--and not just sources, but sources willing to provide evidence to buttress their statements, as was the case here. Nor is it reasonable to launch into yet another attack on the same journalist and cite for support an exchange in which you were demonstrably wrong without making any reference to the fact that you were indeed wrong. Wrongly citing a case in that manner would get you in trouble before the bench, Counselor.

Tuesday, March 27, 2012

Rocking the Vote

As we have noted previously, 2011 saw a dramatic retrenchment of restrictions on voting and voter registration throughout the United States. Ostensibly designed to address the (nonexistent) problem of voter fraud, these laws contain numerous draconian measures that, at bottom, make it harder to register to vote and harder for citizens to exercise their fundamental right to the franchise. In Florida, for example, the State now requires all voter registration forms to be returned to local election boards within 48 hours of collection. Failure to do so, will result in the collector being fined. As early as last September, the Brennan Center was able to report that the League of Women Voters, a group that has been registering Floridians to vote through all-volunteer efforts since 1939, was suspending its voter registration efforts in Florida. 

Florida, which is expected to be a vital swing state once again in this year’s presidential election, is enrolling fewer new voters than it did four years ago, as prominent civic organizations have suspended their voter registration drives because of what they describe as onerous restrictions imposed last year by Republican state officials.
Florida is likely not alone. It is likely that, unless a number of these laws are overturned, November 2012 will see fewer registered youth voters, voters of color, and unmarried women voters than would otherwise be expected. Worse yet, a smaller percentage of these will cast ballots. And, to make matters even worse, these effects will be likely be most pronounced in traditionally conservative states that have seen the most rapid growth of minority populations. You see, as the population of older White men and married White women is eclipsed nationwide, Republicans have determined the only way for their party to hold onto power is to suppress the vote of these non-White and non-married women populations.

Fortunately for our Republic, a number of these states are covered by the Voting Rights Act and the Justice Department has already refused to clear certain vote restriction laws in covered states. Unfortunately, many more of these states aren't covered. And those states justify their laws as does Florida:
The state took issue with what it called the “pervasive sky-is-falling hyperbole” of the civic groups, saying that the new law does not impinge on their free speech rights. The state said that the law was designed to make sure voters had their registrations handed in quickly and that outside groups did not overwhelm local elections officials by hoarding their registration forms and delivering them all at once near the deadlines.
This formulation--painting new voting restrictions as necessary to ensure orderly elections and election administration--has been well received by the judiciary, especially in ballot access cases. Here, as in there, the state must make defend its actions as being narrowly tailored in the service of a compelling state interest--and that its measure is not overly burdensome on the citizen. The compelling interest is orderly elections. And, though one can think of numerous other means by which the state may more narrowly achieve this end--particularly given that overwhelmed Boards of Election are few and far between and could be remedied by hiring more staff temporarily--the judiciary is likely to endorse it because, historically, the courts have been unmoved by the notion that larger costs imposed on civic organizations for pursuing their ends (signature gathering, voter registration gathering) are overly burdensome. 

Friday, March 23, 2012

Overheated Oil Markets

Today, on news that new sanctions had already driven Iranian exports down by 300,000 b/d, Brent futures pushed up to $127.03 from $123.78 before settling at $125.13. Brent is up $15 since the first of February, $19 since the beginning of the year, and $30 since October 2011. Yet, just three days ago, Saudi Arabia's oil minister Ali al-Naimi declared his country's willingness to raise production from 9.9 million barrels per day to 12.5 million barrels per day--an increase of 2.6 million barrels per day, well over the 2.1 million barrels that Iran produces daily. What's more, al-Naimi claims that Saudi Arabia's excess capacity could come online "immediately if needed." Thus, even if Iranian oil sanctions were implemented perfectly, with no cheating, and even if no other country was willing to tap excess capacity--neither of which are plausible--Saudi Arabia could more than make up for sanctioned Iranian oil. 

Calm down, oil traders. 

Airtime Scarcity

Part of our long running debate here at DCExile over Citizen's United and the drowning out effect on speech has centered around airtime, its abundance, and the relative value of that abundance--HGTV at midnight versus CNN during prime time or your local network during evening news. Campaigns & Elections, in a provocatively titled article, reports:

Thomas says. “Once you’re sold out, you’re out.” Trying not to panic, you nonetheless feel a little like you’re at the supermarket shopping for hurricane supplies and finding only empty shelves where the batteries and water once were.

Get used to it, consultants and station managers warn. Airtime scarcity will be more of an issue in 2012 than ever before.

After the Supreme Court’s Citizens United decision, and with more than 300 Super PACs preparing to take to the airwaves against the backdrop of a presidential campaign that could very well pit the two best funded candidates in history against one another, the vital commodity of broadcast TV time could be hard to find.

“I believe this will be a record-setting year,” says Thomas. “In the battleground states, running out of inventory is a possibility.”

Update: There's an additional point to be made about drowning out whether we will actually witness it or not. The harm of drowning out is not merely expressive--the muting of some weaker, less moneyed voices and points of view--although that would be a sufficient harm to give us pause. The harm posed by drowning out is also one of accountability. By muting the voices of some, drowning out denies those drowned-out individuals or groups at least one mode of sanctioning their governors and, thus, denying them the ability to hold their governs accountable. 

Thursday, March 22, 2012

The Road We Traveled

Finally watched the Road We Travelled -- you should, too:

Monday, March 12, 2012

The Short List - March 12, 2012



Friday, March 9, 2012

The Short List - March 9, 2012



Thursday, March 8, 2012

Accountability, Mischaracterization, and American Use of Force

It’s been a busy week for international law—particularly the international law of armed conflict and, more particularly, the interaction of that body of law with municipal U.S. law. Both the Attorney General’s speech at Northwestern University Law School and Secretary of Defense Leon Panetta’s remarks before the Senate Armed Services Committee have sparked a bit of outrage, as well as a fair measure of hyperbole and mischaracterization.

Interestingly enough, the visceral reaction to Holder’s speech has come from the left—both Professor Jonathan Turley and GlennGreenwald piled on—while the negative reaction to Panetta’s remarks has come from the right—unsurprising given they emerged from a contentious exchange withSenator Jeff Sessions. And, while the AG’s speech was a defense of the Obama administration’s rather robust approach to national security—in particular, the claimed authority to lethally target individuals, including U.S. citizens, who are either imminent threats or civilians directly participating in hostilities against the United States—Sessions’ assault sounded in themes of the Obama administration prostrating itself before international institution and that horror of horrors: international law.

Two things other than temporal proximity unite the left and the right in these two episodes: gross mischaracterizations and an underlying concern over accountability.

Take Glenn Greenwald’s article on Salon following Holder’s speech. While Holder articulated two fairly uncontroversial—and, by the way, correct—frameworks for justifying use of force (self-defense and the existence of an armed conflict), Greenwald ignored these and located his criticism in the legal frame of law enforcement. Greenwald used terms like accuser, judge, jury, and executioner and, critically, implied that the drone strike targeting Anwar al-Aulaqi in September 2011 was an extrajudicial execution. What’s more, whereas Holder properly discussed due process, Greenwald honed in on judicial process.

Similarly, Senator Sessions attempted to characterize the Obama administration’s inaction in Syria as evidence that the Obama administration believes international law trump U.S. law. Sessions wielded the intervention in Libya as evidence thereof: the Congress didn’t authorize that intervention but the UN Security Council did therefore Obama believes in government via the UN. Enter black helicopters.

Looking past these mischaracterizations, it is clear that both Greenwald and Sessions—and many others—are really concerned with accountability. At bottom, I believe what animates Greenwald’s arguing past the AG is not a fear that the Executive claims an untrammeled authority to use force against U.S. citizens—indeed, the President does not and could not claim such authority—but instead a fear that technology and circumstance have conspired to vest the President with the ability to use precise amounts of force abroad without political or institutional accountability.

In the same vein, I believe Senator Sessions tips his hand with his umbrage not of supposed preeminence of international law but when he highlights the War Powers Resolution. What goads Sessions is that the Obama administration avoided the War Powers Resolution—an act that every President, regardless of party, has regarded as unconstitutional—by: (1) withdrawing the majority of U.S. combat air assets within the reporting window; and (2) from that point on, relying on drones for combat operations which, because they do not place servicemen and women in harm’s way, avoid the WPR trigger of “hostilities” embraced by 30 years of Presidents.

It is, I believe, the Presidency’s apparent lack of accountability when making use of force decisions that bothers two men as diverse as Greenwald and Sessions, and unites this week’s criticism from both the left and right. Accountability in the resort to force is integral to ensure the use of force is lawful, to protect the citizenry, and to ensure that force used in our name is reasonable and warranted. This is a worthy discussion to have. We would be better off if both Sessions and Greenwald stated it plainly.

The Short List - March 8, 2012



Wednesday, March 7, 2012

The Short List - March 7, 2012



Tuesday, March 6, 2012

The Short List - March 6, 2012

  • It's Super Tuesday, which everyone agrees won't be that super because this race is going to drag on, but still NPR gives you four things to watch.  And Romney is winning, but only by spending metric tons of cash on negative ads about his opponents.  Increasingly with Gov. Romney, I get the sense that he wants to be president for the promotion, not for any deeper political goal.  That's not to say he'd be a bad president, but if you're animated by the desire to succeed, will you remain animated after you've won?
  • Rush Limbaugh's mouth is causing his pocket book pain in the wake of him declaring a Georgetown law student a "slut" and a "prostitute" because she'd have the temerity to suggest insurance should cover contraception, even if that insurance is backed by a religious institution.

Monday, March 5, 2012

The Short List - March 5, 2012

International (only bc my browser it tweaking)