DoD on Detainee Operations

The Department of Defense has released the final version of its controversial doctrine on “detainee operations” (pdf) which defines the class of unlawful enemy combatants and prescribes their treatment.

“US forces must be prepared to properly control, maintain, protect, and account for all categories of detainees in accordance with applicable domestic law, international law, and policy,” the new publication explains.

Among the categories of detainees are those designated as “unlawful enemy combatants” who, the DoD states, do not enjoy the ordinary protections of lawful combatants.

“Unlawful ECs are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict or who support such acts. For purposes of the war on terrorism, the term unlawful EC is defined to include, but is not limited to, an individual who is or was part of or supporting Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners.”

At the same time, however, even unlawful enemy combatants must be treated humanely, the document says, and to do otherwise is a war crime.

“Common Article 3 to the Geneva Conventions of 1949, as construed and applied by US law, establishes minimum standards for the humane treatment of all persons detained by the United States and coalition and allied forces. It is a war crime to undercut or violate these standards. Common Article 3 prohibits at any time and in any place: ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; taking of hostages; outrages upon personal dignity, in particular humiliating and degrading treatment; the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’.”

See “Detainee Operations,” Joint Publication JP 3-63, February 6, 2008.

Inside the 9/11 Commission

“Senior investigators on the 9/11 Commission believed their work was being manipulated by the executive director to minimize criticism of the Bush Administration,” according to a new book on the Commission.

“Investigative staffers at the Commission believe [executive director] Philip Zelikow repeatedly sought to minimize the administration’s intelligence failures in the months leading up to 9/11, which had the effect of helping to ensure President Bush’s re-election in 2004,” no less.

That is the sensational thesis of “The Commission: The Uncensored History of the 9/11 Investigation” by New York Times reporter Philip Shenon.

The claim was immediately disputed by the former Commissioners and by former staff.

“The author is mistaken in his criticism of the role of Executive Director Philip Zelikow. The proper standard for judgment is the quality of the report, and there is no basis for the allegations of bias he asserts,” according to a February 8 statement (pdf) issued jointly by the Commissioners (except White House counsel Fred Fielding).

Michael Hurley, a Commission staff member who led the team on counterterrorism policy, concurred in an email message to Secrecy News.

“The Shenon book depicts Philip Zelikow as a manager who bullied the 9/11 Commission staff. He didn’t bully the staff. Zelikow assembled a stellar group of independent-minded professionals, many of whom had substantial and distinguished careers in their fields. They were not the sort who could be bullied or manipulated,” said Mr. Hurley, a former CIA operations officer who served in Afghanistan after September 11.

“No piece of evidence, no matter how damning to Bush, Rice, or Richard Clarke got left on the cutting room floor,” he added.

Mr. Shenon’s engaging book provides new details on the efforts of former national security adviser Sandy Berger to destroy documents at the National Archive; the discovery of a highly classified Memorandum of Notification authorizing the killing of Osama bin Laden that was signed by President Clinton on December 24, 1998 then modified a few months later for reasons that remain obscure; John Ashcroft’s attempt to embarrass Commissioner Jamie Gorelick, which had the unintended effect of unifying the Commission; and lots of interesting, gossipy details about the internal dynamics of the Commission, some of which, as noted, have been disputed.

Last week, Mr. Shenon posted his extensive email exchanges with Mr. Zelikow on the book’s web site. Mr. Zelikow also released almost the identical material, in slightly different format and with a bit of material not included by Mr. Shenon (such as a memo sent to Walter Pincus of the Washington Post regarding a paper by Paul Pillar). The Zelikow release is here (pdf).

In either version, Zelikow’s detailed messages, which are neither defensive nor vindictive, tend to deflate the more breathless allegations of his critics, and add a dimension of understanding to the Commission report and its public reception.

“One of the most neglected observations in the report was in our section comparing the Millenium period (end 1999) with the ‘summer of threat’ in 2001,” Mr. Zelikow wrote to Mr. Shenon on September 20, 2007 in a passage that was not included in the book.

“We made the point there that the main driver in all the attention in the earlier period was the massive publicity surrounding the Ressam arrest. [Ahmed Ressam was convicted of plotting to bomb Los Angeles International Airport on New Year’s Eve 1999.] We contrasted that with the muffling secrecy of Summer 2001.”

“Imagine what might have happened if the Moussaoui arrest had gotten the kind of publicity and extended coverage that accompanied the Ressam arrest. We had evidence from [Khalid Sheikh Mohammed] that, had he known of the Moussaoui arrest, he might have cancelled the operation,” Mr. Zelikow wrote.

DHS Directorate of Science and Tech, and More from CRS

Some noteworthy new reports from the Congressional Research Service include the following (all pdf).

“The DHS Directorate of Science and Technology: Key Issues for Congress,” February 1, 2008.

“The Egypt-Gaza Border and its Effect on Israeli-Egyptian Relations,” February 1, 2008.

“Holocaust-Era Insurance Claims: Background and Proposed Legislation,” updated February 4, 2008.

“North Korean Ballistic Missile Threat to the United States,” updated January 24, 2008.

“Mine-Resistant, Ambush-Protected (MRAP) Vehicles: Background and Issues for Congress,” updated January 24, 2008.

“National Guard Personnel and Deployments: Fact Sheet,” updated January 17, 2008.

“U.S. Special Operations Forces (SOF): Background and Issues for Congress,” updated January 25, 2008.

Blog News

We recently migrated the blog version of Secrecy News to a new format. As a result, readers who previously subscribed to the blog may need to update the feed address in their blog readers. The new feed is here.

The Next President Could Reverse Bush-Era Secrecy

The next President of the United States could single-handedly do what years of advocacy, investigation, legislation and litigation have yet to fully accomplish, namely to uncover the concealed record of the Bush Administration’s two terms in office on everything from warrantless wiretapping to extraordinary rendition.

In an essay published in the Nieman Watchdog today, I argue that the next Administration might find it advantageous and would clearly have the authority to overcome the Bush-era secrecy that has impeded government accountability and confounded public debate on a whole host of issues.

“By now no one expects the Bush Administration to make itself accountable for its controversial and possibly illegal practices in domestic surveillance, prisoner detention and interrogation, or for its numerous other departures from the norms of American government. But the next President will have a unique opportunity to reveal what has been kept hidden for the last seven years, and to let Americans know exactly what has been done in their name.”

“Although internal White House records that document the activities of the outgoing President and his personal advisers will be exempt from disclosure for a dozen years or so, every Bush Administration decision that was actually translated into policy will have left a documentary trail in one or more of the agencies, and all such records could be disclosed at the discretion of the next President.”

If so, it would make sense to question the presidential candidates now about their willingness to engage in such housecleaning by asking them, for example:

“Will you disclose the full scope of Bush Administration domestic surveillance activities affecting American citizens, including all surveillance actions that were undertaken outside of the framework of law, as well as the legal opinions that were generated to justify them?”

See “The next president should open up the Bush Administration’s record” by Steven Aftergood, Nieman Watchdog, February 7.

The Nieman Watchdog, a project of the Nieman Foundation for Journalism at Harvard University, aims to invigorate press coverage by framing probing questions on matters of public policy importance.

Northern Command Roles and Missions, and More from CRS

Noteworthy new reports from the Congressional Research Service include the following (all pdf).

“Homeland Security: Roles and Missions for United States Northern Command,” January 28.

“Pakistan’s Nuclear Weapons: Proliferation and Security Issues,” updated January 14, 2008.

“Pakistan’s Political Crises,” updated January 3, 2008.

“Navy Littoral Combat Ship (LCS) Program: Oversight Issues and Options for Congress,” updated January 4, 2008.

“East Asian Regional Architecture: New Economic and Security Arrangements and U.S. Policy,” updated January 4, 2008.

“The United Nations Human Rights Council: Issues for Congress,” updated January 8, 2008.

Open Source Intelligence Advances

The DNI Open Source Center, which gathers, translates, analyzes, and distributes unclassified open source intelligence from around the world, is steadily growing in capability and impact, according to Doug Naquin, the Center’s Director.

The Open Source Center, which replaced the CIA’s Foreign Broadcast Information Service, is doing more analysis and outreach than its predecessor and is also exploring new media, said Mr. Naquin in a recent speech (pdf).

“We’re looking now at YouTube, which carries some unique and honest-to-goodness intelligence,” he said.

“We have groups looking at what they call ‘Citizens Media’: people taking pictures with their cell phones and posting them on the Internet. Then there’s Social Media, phenomena like MySpace and blogs…. A couple years back we identified Iranian blogs as a phenomenon worthy of more attention, about six months ahead of anybody else.”

“But we still have an education problem … both with the folks who are proponents of open source but perhaps don’t know exactly why, and folks internally who are still wondering why I am sitting at the same table they are,” he said.

“All of us have heard the statement by [intelligence community] leaders at one time or another that ‘Our business is stealing secrets.’ Or ‘Our business is espionage.’ While I deeply respect that, and I understand where that’s coming from, from my Open Source perspective, I’m thinking that’s like a football coach saying, ‘Our mission is to pass the ball.’ Or ‘Our mission is to run the ball.’ Well, not exactly. It’s to win football games.”

Mr. Naquin addressed the Central Intelligence Retirees’ Association on October 3, 2007. The text of his remarks is available here.

While the Open Source Center may be thriving, its net value to the general public has actually declined. That is because only a small fraction of its product is normally made publicly available (for a substantial subscription fee), while alternative means of public access to international information sources continue to multiply.

Common Standards for Terrorism Information Sharing

Government agencies are still laboring to devise “common standards for preparing terrorism information for maximum distribution,” in response to a December 2005 directive from the President.

Recently the Program Manager for the ODNI Information Sharing Environment issued a memorandum (pdf) describing the implementation of such common standards. See “Common Terrorism Information Sharing Standards (CTISS) Program,” Information Sharing Environment Administrative Memorandum, October 31, 2007.

“Maximum distribution” of information here means sharing with federal agencies, state and local governments, law enforcement agencies, and the private sector. It does not imply that terrorism-related information will be shared with the general public.

Rendition to Torture: The Case of Maher Arar

The case of Maher Arar, the Canadian national who was mistakenly identified as an Islamist extremist and deported from the United States to Syria for interrogation under torture, was explored in a Congressional hearing last October. The record of that hearing (pdf) has just been published.

“The refusal of the Bush administration to be held accountable [for its handling of the Arar case] is an embarrassment to many of us,” said Rep. Bill Delahunt (D-MA) of the House Judiciary Committee, who issued his own apology to Mr. Arar.

Rep. Dana Rohrabacher (R-CA) endorsed the apology to Maher Arar, but also defended the Bush Administration policy of extraordinary rendition.

“Should we halt every government program that, due to a human error, results in a tragedy?” asked Mr. Rohrabacher. “I challenge anybody to compare the error rate of rendition, this program, with the error rate in any other government program.”

See “Rendition to Torture: The Case of Maher Arar,” joint hearing before subcommittees of the House Judiciary and Foreign Affairs Committees, October 18, 2007.