Sunday, March 18, 2007
Welcome to the second issue of International Intelligencer!
The second issue has just been printed and we are excited to hear your responses. This issue features articles on Russian foreign policy, Libya's HIV scandal, Venezuela-US relations, the recent Chinese anti-satellite missile test, the troop surge in Iraq, and an interview with Charles C. Sipos, co-counsel for Salim Ahmed Hamdan of Hamdan v. Rumsfeld (2006).
The Heat War: Russian Foreign Policy in the Age of Globalization by Daniel Koehler
As the saying would have it, you can’t teach an old dog new tricks. Vladimir Putin would beg to differ. The former KGB spy and current Russian president seems to maintain a residual Cold War mentality while using original and creative approaches to adapt to a world of economic interdependence and high energy costs. In January 2006, the Russian state-owned energy company Gazprom, known for its close ties to the Kremlin, cut off gas supplies to Ukraine after the latter refused to accept a dramatic rise in prices to global market levels. Later that same year, pipelines supplying gas to Georgia were mysteriously blown up with no evidence of terrorist involvement. Coincidentally, both countries had recently replaced Soviet-era apparatchiks with more Western-oriented politicians. Under Putin’s stewardship, Moscow has also gone on to forge closer ties with several regimes in the Middle East and Latin America. In short, Putin’s objective seems to be control over his “near abroad,” or former Soviet republics, while expanding Russia’s sphere of influence elsewhere. His tool is these countries’ dependency on Russia’s economic or political patronage.
While the objectives of Russian foreign policy are likely to remain unchanged at least until Putin presumably steps down in 2008, the tools that are used cannot. The threat of raising the price of gas to Ukraine to market levels bore weight only because these market levels are currently so high. Natural gas cannot feasibly be transported in large quantities except through pre-existing pipelines, and Russia does have the advantage of an extensive network. But as new pipelines are built, Russia’s position stands to be compromised. Hence, we see Moscow taking steps to increase the dependency of former Soviet republics on Russian gas. Gazprom recently offered Armenia discount prices for Russian gas in exchange for control over part of its pipeline network, including those pipelines that bring in gas from Iran. Now that Gazprom has control over gas coming into Armenia from Iran as well as Russia, and given recent events in Georgia and the Ukraine, Yerevan may think twice before contravening Moscow’s wishes.
Some, however, have pointed to the recent dispute between Russia and Belarus as evidence that Gazprom’s actions are not driven by political considerations. Belarus’ president, Alyaksandar Lukashenka, has traditionally maintained close ties with Moscow, and negotiations had been in progress to establish a consolidation of the two nations into a single state. As these observers note, this did not prevent Gazprom from raising the price demanded for gas sold to Belarus in January of this year. But this logic is questionable, to say the least. If Gazprom’s actions really were based purely on economic motives, then why did we not see a simultaneous price hike for all the Soviet successor states paying below-market rates, as opposed to the consecutive and separate raises we have actually seen? Why, for that matter, were some of these countries offered below-market rates in the first place? It seems far more likely that Gazprom’s threats to Belarus were an attempt to mask the political motivations of its earlier energy policy, especially in light of the criticism leveled by several Western governments following the Ukraine affair.
Well disguised it may be, but this tactic of “energy diplomacy” is not a foolproof strategy. Turkey has a far-reaching network of gas pipelines, and could potentially be the missing link between gas-abundant Iran and gas-hungry Eastern Europe. This would spell trouble for Russia as it seeks to flex its geopolitical muscles, and so we have recently seen attempts at alternative measures. In flagrant disregard of EU and US policy, Putin invited several Hamas leaders to Moscow for discussions soon after the group was voted in. Moscow has also been heavily involved in negotiations over Iran’s nuclear program, at one point offering a deal to enrich uranium on Russian soil for transport back to Iran. In July, Moscow renewed a contract with Venezuelan President Hugo Chavez in which it agreed to continue selling the South American nation fighter jets, helicopters and assault rifles. Interestingly, all of these governments are known for their vehemently anti-American positions.
This could be interpreted as a move away from the Russian use of energy resources as a foreign policy tactic, or even as a training ground for Putin to try out a new political approach in the international arena. But it is more likely evidence of the true nature of his general style of foreign policy. Moscow’s attitude to Western governments is indifferent at best, as demonstrated by its willingness to deny Germany and Poland oil without prior consultation in the wake of the dispute with Belarus, and Putin is an opportunist. His goal of creating a Russian sphere of influence is facilitated by the perseverance of anti-Western regimes that are lacking in economic and political resources.
Since Hamas took power, the Palestinian Authority has been deprived of aid from the European Union and United States, one of its major sources of funding. Iran has been penalized by the UN Security Council with economic sanctions for its uranium enrichment program, and Venezuela has been largely isolated by the United States, the regional hegemon. By offering assistance, Putin is reasserting Russia’s presence on the international stage by making these countries dependent on Russian assistance, in the same way as Ukraine, Georgia and indeed Belarus are dependent on Russian gas. Naturally, the potential to deny Ukrainians and Georgians gas supplies in the freezing winter has a more immediate and more tangible effect than offering a helping hand to alienated rentier states, and the ability to use it with neighboring countries is, from Putin’s point of view, an opportunity too good to miss. But should the opportunity to use this political lever fail Vladimir Putin, we may rest assured that he will find alternative means to establish his international authority.
While the objectives of Russian foreign policy are likely to remain unchanged at least until Putin presumably steps down in 2008, the tools that are used cannot. The threat of raising the price of gas to Ukraine to market levels bore weight only because these market levels are currently so high. Natural gas cannot feasibly be transported in large quantities except through pre-existing pipelines, and Russia does have the advantage of an extensive network. But as new pipelines are built, Russia’s position stands to be compromised. Hence, we see Moscow taking steps to increase the dependency of former Soviet republics on Russian gas. Gazprom recently offered Armenia discount prices for Russian gas in exchange for control over part of its pipeline network, including those pipelines that bring in gas from Iran. Now that Gazprom has control over gas coming into Armenia from Iran as well as Russia, and given recent events in Georgia and the Ukraine, Yerevan may think twice before contravening Moscow’s wishes.
Some, however, have pointed to the recent dispute between Russia and Belarus as evidence that Gazprom’s actions are not driven by political considerations. Belarus’ president, Alyaksandar Lukashenka, has traditionally maintained close ties with Moscow, and negotiations had been in progress to establish a consolidation of the two nations into a single state. As these observers note, this did not prevent Gazprom from raising the price demanded for gas sold to Belarus in January of this year. But this logic is questionable, to say the least. If Gazprom’s actions really were based purely on economic motives, then why did we not see a simultaneous price hike for all the Soviet successor states paying below-market rates, as opposed to the consecutive and separate raises we have actually seen? Why, for that matter, were some of these countries offered below-market rates in the first place? It seems far more likely that Gazprom’s threats to Belarus were an attempt to mask the political motivations of its earlier energy policy, especially in light of the criticism leveled by several Western governments following the Ukraine affair.
Well disguised it may be, but this tactic of “energy diplomacy” is not a foolproof strategy. Turkey has a far-reaching network of gas pipelines, and could potentially be the missing link between gas-abundant Iran and gas-hungry Eastern Europe. This would spell trouble for Russia as it seeks to flex its geopolitical muscles, and so we have recently seen attempts at alternative measures. In flagrant disregard of EU and US policy, Putin invited several Hamas leaders to Moscow for discussions soon after the group was voted in. Moscow has also been heavily involved in negotiations over Iran’s nuclear program, at one point offering a deal to enrich uranium on Russian soil for transport back to Iran. In July, Moscow renewed a contract with Venezuelan President Hugo Chavez in which it agreed to continue selling the South American nation fighter jets, helicopters and assault rifles. Interestingly, all of these governments are known for their vehemently anti-American positions.
This could be interpreted as a move away from the Russian use of energy resources as a foreign policy tactic, or even as a training ground for Putin to try out a new political approach in the international arena. But it is more likely evidence of the true nature of his general style of foreign policy. Moscow’s attitude to Western governments is indifferent at best, as demonstrated by its willingness to deny Germany and Poland oil without prior consultation in the wake of the dispute with Belarus, and Putin is an opportunist. His goal of creating a Russian sphere of influence is facilitated by the perseverance of anti-Western regimes that are lacking in economic and political resources.
Since Hamas took power, the Palestinian Authority has been deprived of aid from the European Union and United States, one of its major sources of funding. Iran has been penalized by the UN Security Council with economic sanctions for its uranium enrichment program, and Venezuela has been largely isolated by the United States, the regional hegemon. By offering assistance, Putin is reasserting Russia’s presence on the international stage by making these countries dependent on Russian assistance, in the same way as Ukraine, Georgia and indeed Belarus are dependent on Russian gas. Naturally, the potential to deny Ukrainians and Georgians gas supplies in the freezing winter has a more immediate and more tangible effect than offering a helping hand to alienated rentier states, and the ability to use it with neighboring countries is, from Putin’s point of view, an opportunity too good to miss. But should the opportunity to use this political lever fail Vladimir Putin, we may rest assured that he will find alternative means to establish his international authority.
Trading Lives for Money: Libya's HIV Scandal by Vasil Zlatev
How much does a human life cost? Most would say it is invaluable. However, that is not Muammar Gaddafi’s answer to this question. He would say that a human life costs a certain amount of money. Consider the following story.
On February 9, 1999 five Bulgarian nurses, a Bulgarian doctor, and a Palestinian doctor were accused of infecting 393 Libyan children with HIV. This accusation is rather dubious because the evidence presented by the Libyan prosecutors is contradictory. That is why the European Union, USA, and organizations such as Amnesty International have all condemned the trial and demanded the liberation of the accused medical workers. Now, eight years later, the five nurses and the Palestinian doctor are still in custody and have been sentenced to death.
It all began in October 1998, when two children who were treated at the Al Fatih Children’s Hospital in Benghazi, Libya were diagnosed with AIDS. The families of the infected children were eager to find the culprits who caused that tragedy and subsequently made an appeal to Libyan leader, Muammar Gaddafi. Consequently, a hunt for the culprits was initiated. The Palestinian doctor Dr Ashraf al-Hadjudj and the six Bulgarians, from the 23 who were arrested at first, Nassya Nenova, Valya Cherveniashka, Valentina Siropulo, Snejana Dimitrova, Christiana Vulcheva and her husband Dr Zdravko Georgiev were kept in prison. Moreover, Libya interpreted the infections as a plot against Libya initiated by the CIA and Mossad with the six Bulgarians and the Palestinian doctor as secret agents of the two agencies.
The nurses and the two doctors were forced to confess that they have deliberately infected 393 children with HIV, under the duress of torture. The tortures were so intense that one of the nurses, Nassya Nenova, attempted a suicide.
One Bulgarian, Smilian Tachev—who was jailed for 174 days on unrelated charges—was a witness of the tortures. He recalls: “The nurses were beaten with many-stranded wire, for a long time and painfully. Then they were made to run, crawl, stand on one leg with their hands stretched up. When they collapsed totally, they were dragged somewhere and brought back in a helpless state.” Tachev adds that he witnessed the use of probes to force unidentified objects down the women’s throats, electricity applied on their bodies, and dogs set loose upon the screaming victims.
All these actions are prohibited by the Libyan law. The Libyan law safeguards respect for the rights of detainees upon detention and testimony, and if these rights are violated, the charges may be nullified. Libya has also signed the UN Convention against Torture which not only prohibits torture, but also “cruel, inhuman, or degrading treatment or punishment.”
The evidence on which the argument of the prosecution rests is the claim that blood banks with HIV-infected blood in them were found in the apartment of Christiana Vulcheva, the alleged organizer of the infection. The evidence that the prosecution presents, however, is so dubious and untrustworthy that it cannot be taken for granted. First, the confessions of the accused were made as a result of 90-days of torture. The Benghazi Criminal Court, however, refused to acknowledge that the accused were tortured despite the fact that the Libyan People’s Court has accepted that the medical workers were tormented and that there was not enough evidence to prove that they have infected the children, which automatically nullifies the confessions of the six. On the other hand, the Benghazi Criminal Court sentenced the five Bulgarian nurses and the Palestinian doctor to death on the basis of one and the same evidence. In that way, the rulings of the two institutions totally contradict with each other, which is another reason to question the validity of the Benghazi Criminal Court’s verdict.
The defense of the medical workers rejected all claims of the prosecution. As far as the blood banks are concerned, they were found in Christiana Vulcheva’s apartment after a perquisition on which she was not present, which is illegal according to Libyan laws. That means that the blood banks might have been deliberately placed in the apartment of Christiana Vulcheva. In addition, the prosecution never presented the blood banks with infected blood to the court despite the fact that the defense requested them. Isn’t it strange the main evidence in a trial was never presented to the court? Another strange fact is that the date of the perquisition in Christiana Vulcheva’s apartment is in April 1999, while according to the official documents, the examinations of the blood banks found in her apartment were conducted on February 2 and February 15, 1999. How can someone examine something that has not been found yet? So, if the Bulgarian nurses and the Palestinian doctor are innocent, how did the infection occur? Let’s see what some of the most famous AIDS specialists say on the topic.
Prof Luc Perrin, in whose hospital in Switzerland some of the infected children have been treated, has examined 185 of them and concludes that in many the infection is actually older than a year. Prof Perrin comments: “I can tell for sure that the HIV infection occurred before September, 1997.” Nassya Nenova, Valentina Siropulu and Valya Cherveniashka started working in the Al Fatih Children’s Hospital on February 17, 1998, and the Palestinian doctor Dr Ashraf al-Hadjudj—on August 1, 1998. The “organizer” of the group Christiana Vulcheva has never worked in Al Fatih Children’s Hospital.
According to Prof Perrin the AIDS outbreak occurred because of poor hygiene in the hospital. Prof Perrin explains: “If a single source of contaminated blood had caused the HIV outbreak, all the children would be infected by the same hepatitis C subtype. What we observed can instead be explained by the reuse of syringes or poor sterilization procedures.”
The opinions of Prof Luc Montagnier, the co-discoverer of AIDS, and of Professor Vittorio Colizzi, in whose hospital some of the children were treated, coincided with that of Professor Perrin. Prof Montagnier and Prof Colizzi examined separately the HIV outbreak in Al Fatih Children’s Hospital, but they reached to one and the same conclusion. The Libyan court refused to acknowledge the reports of the three professors and even added their names in the list of alleged criminals.
The logical question follows: “Why did Libya sentence six medical workers, who are apparently innocent, to death?” There are a couple of possible explanations. Sadly, they are all connected with either money or political power.
Libya had suffered for years from the embargo imposed on it after the Lockerbie incident in which a Libyan intelligence officer was convicted of aiding a terrorist plot that resulted in the explosion of Pan Am Flight 103 over Lockerbie, Scotland. The incident led to international isolation and economic problems for Libya. It is likely that insufficient funds for healthcare caused the reuse of syringes in Libyan hospitals and the Libyan state needs funding in order to better the condition of healthcare.
Here is where the “money reason” comes. The parents’ organization of the infected children demands that Bulgaria pay 10 million Euros to the families of each infected child. If Bulgaria does that, the Bulgarian nurses will be liberated. The sum 10 million Euros is not picked by chance. It is connected with the sum that Libya paid as reparations after the Lockerbie case; that is clearly an attempt from the Libyan side to regain this money.
But why were citizens of Bulgaria and Palestine accused specifically? The first reason is again connected with money. Libya has to pay a debt of $290 million to Bulgaria. Libya proposed liberating the Bulgarian nurses in exchange of not paying its debt to Bulgaria. Moreover, in 1998 Bulgaria was not member of NATO nor the European Union, so it didn’t have much political influence. As for the Palestinian doctor, he might have been picked for several reasons. First, he is a Muslim, which rejects the possibility of a religious conflict in the trial. Second, by selecting a Palestinian, Libya maybe trying to prove that its claims are not a matter of money or power, but justice insofar as Libya has had close relationships with some Palestinian groups. And finally, the international relations’ system is based on state-state interactions, and since Palestine is not an official state, it cannot count on broad international support.
Last, but not least is Muammar Gaddafi’s desire not to degrade his image of a leader. If he confesses that the HIV outbreak was caused because of poor hygiene, he undermines his own authority. Furthermore, Benghazi, where Al Fatih Children’s Hospital is located, has long been a place with relative independence and strong tribal chiefs, who are not that submissive to Gaddafi. In fact, some of these chiefs tried to initiate a coup d’etat against him in the past.
To sum up, with the trial against the Bulgarian nurses and the Palestinian doctor, Libya is trying to fix the state’s economic deficit and to regain its role on the international scene after the embargo imposed on the country. Libya hopes to receive some money and after releasing the six accused medical workers (because I doubt that Libya will actually kill them), it will “prove” to the world that Libya is a fair and just country. But should that be achieved after ruining the lives of innocents? Should that be achieved after ugly bargaining for money in exchange for human lives? Should people be tortured and treated like animals? Muammar Gaddafi seems to have no qualms about these transgressions. Meanwhile, the innocent medical workers are wondering everyday whether they will see their countries and relatives again and even whether they will see the sun at the next day.
On February 9, 1999 five Bulgarian nurses, a Bulgarian doctor, and a Palestinian doctor were accused of infecting 393 Libyan children with HIV. This accusation is rather dubious because the evidence presented by the Libyan prosecutors is contradictory. That is why the European Union, USA, and organizations such as Amnesty International have all condemned the trial and demanded the liberation of the accused medical workers. Now, eight years later, the five nurses and the Palestinian doctor are still in custody and have been sentenced to death.
It all began in October 1998, when two children who were treated at the Al Fatih Children’s Hospital in Benghazi, Libya were diagnosed with AIDS. The families of the infected children were eager to find the culprits who caused that tragedy and subsequently made an appeal to Libyan leader, Muammar Gaddafi. Consequently, a hunt for the culprits was initiated. The Palestinian doctor Dr Ashraf al-Hadjudj and the six Bulgarians, from the 23 who were arrested at first, Nassya Nenova, Valya Cherveniashka, Valentina Siropulo, Snejana Dimitrova, Christiana Vulcheva and her husband Dr Zdravko Georgiev were kept in prison. Moreover, Libya interpreted the infections as a plot against Libya initiated by the CIA and Mossad with the six Bulgarians and the Palestinian doctor as secret agents of the two agencies.
The nurses and the two doctors were forced to confess that they have deliberately infected 393 children with HIV, under the duress of torture. The tortures were so intense that one of the nurses, Nassya Nenova, attempted a suicide.
One Bulgarian, Smilian Tachev—who was jailed for 174 days on unrelated charges—was a witness of the tortures. He recalls: “The nurses were beaten with many-stranded wire, for a long time and painfully. Then they were made to run, crawl, stand on one leg with their hands stretched up. When they collapsed totally, they were dragged somewhere and brought back in a helpless state.” Tachev adds that he witnessed the use of probes to force unidentified objects down the women’s throats, electricity applied on their bodies, and dogs set loose upon the screaming victims.
All these actions are prohibited by the Libyan law. The Libyan law safeguards respect for the rights of detainees upon detention and testimony, and if these rights are violated, the charges may be nullified. Libya has also signed the UN Convention against Torture which not only prohibits torture, but also “cruel, inhuman, or degrading treatment or punishment.”
The evidence on which the argument of the prosecution rests is the claim that blood banks with HIV-infected blood in them were found in the apartment of Christiana Vulcheva, the alleged organizer of the infection. The evidence that the prosecution presents, however, is so dubious and untrustworthy that it cannot be taken for granted. First, the confessions of the accused were made as a result of 90-days of torture. The Benghazi Criminal Court, however, refused to acknowledge that the accused were tortured despite the fact that the Libyan People’s Court has accepted that the medical workers were tormented and that there was not enough evidence to prove that they have infected the children, which automatically nullifies the confessions of the six. On the other hand, the Benghazi Criminal Court sentenced the five Bulgarian nurses and the Palestinian doctor to death on the basis of one and the same evidence. In that way, the rulings of the two institutions totally contradict with each other, which is another reason to question the validity of the Benghazi Criminal Court’s verdict.
The defense of the medical workers rejected all claims of the prosecution. As far as the blood banks are concerned, they were found in Christiana Vulcheva’s apartment after a perquisition on which she was not present, which is illegal according to Libyan laws. That means that the blood banks might have been deliberately placed in the apartment of Christiana Vulcheva. In addition, the prosecution never presented the blood banks with infected blood to the court despite the fact that the defense requested them. Isn’t it strange the main evidence in a trial was never presented to the court? Another strange fact is that the date of the perquisition in Christiana Vulcheva’s apartment is in April 1999, while according to the official documents, the examinations of the blood banks found in her apartment were conducted on February 2 and February 15, 1999. How can someone examine something that has not been found yet? So, if the Bulgarian nurses and the Palestinian doctor are innocent, how did the infection occur? Let’s see what some of the most famous AIDS specialists say on the topic.
Prof Luc Perrin, in whose hospital in Switzerland some of the infected children have been treated, has examined 185 of them and concludes that in many the infection is actually older than a year. Prof Perrin comments: “I can tell for sure that the HIV infection occurred before September, 1997.” Nassya Nenova, Valentina Siropulu and Valya Cherveniashka started working in the Al Fatih Children’s Hospital on February 17, 1998, and the Palestinian doctor Dr Ashraf al-Hadjudj—on August 1, 1998. The “organizer” of the group Christiana Vulcheva has never worked in Al Fatih Children’s Hospital.
According to Prof Perrin the AIDS outbreak occurred because of poor hygiene in the hospital. Prof Perrin explains: “If a single source of contaminated blood had caused the HIV outbreak, all the children would be infected by the same hepatitis C subtype. What we observed can instead be explained by the reuse of syringes or poor sterilization procedures.”
The opinions of Prof Luc Montagnier, the co-discoverer of AIDS, and of Professor Vittorio Colizzi, in whose hospital some of the children were treated, coincided with that of Professor Perrin. Prof Montagnier and Prof Colizzi examined separately the HIV outbreak in Al Fatih Children’s Hospital, but they reached to one and the same conclusion. The Libyan court refused to acknowledge the reports of the three professors and even added their names in the list of alleged criminals.
The logical question follows: “Why did Libya sentence six medical workers, who are apparently innocent, to death?” There are a couple of possible explanations. Sadly, they are all connected with either money or political power.
Libya had suffered for years from the embargo imposed on it after the Lockerbie incident in which a Libyan intelligence officer was convicted of aiding a terrorist plot that resulted in the explosion of Pan Am Flight 103 over Lockerbie, Scotland. The incident led to international isolation and economic problems for Libya. It is likely that insufficient funds for healthcare caused the reuse of syringes in Libyan hospitals and the Libyan state needs funding in order to better the condition of healthcare.
Here is where the “money reason” comes. The parents’ organization of the infected children demands that Bulgaria pay 10 million Euros to the families of each infected child. If Bulgaria does that, the Bulgarian nurses will be liberated. The sum 10 million Euros is not picked by chance. It is connected with the sum that Libya paid as reparations after the Lockerbie case; that is clearly an attempt from the Libyan side to regain this money.
But why were citizens of Bulgaria and Palestine accused specifically? The first reason is again connected with money. Libya has to pay a debt of $290 million to Bulgaria. Libya proposed liberating the Bulgarian nurses in exchange of not paying its debt to Bulgaria. Moreover, in 1998 Bulgaria was not member of NATO nor the European Union, so it didn’t have much political influence. As for the Palestinian doctor, he might have been picked for several reasons. First, he is a Muslim, which rejects the possibility of a religious conflict in the trial. Second, by selecting a Palestinian, Libya maybe trying to prove that its claims are not a matter of money or power, but justice insofar as Libya has had close relationships with some Palestinian groups. And finally, the international relations’ system is based on state-state interactions, and since Palestine is not an official state, it cannot count on broad international support.
Last, but not least is Muammar Gaddafi’s desire not to degrade his image of a leader. If he confesses that the HIV outbreak was caused because of poor hygiene, he undermines his own authority. Furthermore, Benghazi, where Al Fatih Children’s Hospital is located, has long been a place with relative independence and strong tribal chiefs, who are not that submissive to Gaddafi. In fact, some of these chiefs tried to initiate a coup d’etat against him in the past.
To sum up, with the trial against the Bulgarian nurses and the Palestinian doctor, Libya is trying to fix the state’s economic deficit and to regain its role on the international scene after the embargo imposed on the country. Libya hopes to receive some money and after releasing the six accused medical workers (because I doubt that Libya will actually kill them), it will “prove” to the world that Libya is a fair and just country. But should that be achieved after ruining the lives of innocents? Should that be achieved after ugly bargaining for money in exchange for human lives? Should people be tortured and treated like animals? Muammar Gaddafi seems to have no qualms about these transgressions. Meanwhile, the innocent medical workers are wondering everyday whether they will see their countries and relatives again and even whether they will see the sun at the next day.
Chavez Finds Some Breathing Room by Andrew Brooks
In recent months, Hugo Chavez has made sweeping reforms to the Venezuelan political system. Chavez supporters have become empowered by his new socialist reforms, while detractors have seen the reforms as a logical step in Chavez’s authoritarian populization of Venezuelan politics. Changes in Venezuelan domestic policy and communications, and in American foreign policy have given Chavez the political space to become aggressive in policy-making. The timing and scope of Chavez’s reforms is strategic, relying in part on changes in US party politics.
A populist, Chavez derives power mainly through aggressive partisan policy, media influence, and by cultivating an image of protector, defender, and revolutionary. His administration floods newspaper and television media with his political message as well as harsh rhetoric against the opposition. He also engages in more subtle forms of media control through a network of loyal supporters placed in high corporate media positions to influence content and, allegedly, to intimidate journalists. While some point to opposition television stations such as Globovision as examples of free press, Chavez refused to renew the operating license for RCTV, Venezuela’s second largest station, and supporter of the 2002 coup attempt. Furthermore, Chavez hosts a live talk show, Alo Presidente, in which he addresses political and social issues. This show was broadcast weekly until January, when Chavez announced that it would become daily.
Chavez’s “Bolivarian Missions” ostensibly constitute a strive towards democratic socialism, emphasizing poverty reduction, free health care, free education, worker-managed governance, and nationalization of communications, industry, and natural resources. In January, Chavez began a fresh six-year term and passed a new enabling act, expanding his powers for the next 18 months to rule by decree. Critics call it a blitz towards authoritarianism, while Chavez and his administration look forward to a new era of “maximum revolution.”
Chavez’s foreign policy has relied on an adversarial position towards the United States. He has drawn legitimacy for a trade agreement and coalition of Latin American leaders Evo Morales and Fidel Castro and for another coalition with Iran and Russia. Branding Bush an imperialist, “el Diablo,” and “pendejo,” Chavez’s image of strength and independence from the world’s greatest power allows him to push harder on anti-market reforms. The two leaders have had harsh rhetorical squabbles that may be coming to an end.
The United States has experienced an enormous shift in its foreign policy discourse. Only months after the 2006 US midterm elections that saw Democrats win control of both the House and Senate, the American foreign policy discourse has shifted. Whether due to failures in Iraq and a worsening situation in Afghanistan, or to a shift in party control of both legislative houses, isolationist and anti-interventionist rhetoric has made a revival. In February, the House voted to reprimand the president for his Iraq policy. Further Iraq involvement, for better or worse, will be hampered by disagreements between President Bush and Democrats and skeptical Republicans in the House and Senate. Furthermore, with discussion of interventions in Iran and North Korea on the rise, the United States is in a difficult position, highly skeptical of any type of escalation in new geopolitical regions.
Chavez now has more space to develop his image as protector of the Venezuelan people. In early March, 2007, he held a protest against President Bush’s Latin American trade talks, setting up rallies virtually next door. The lack of response from Bush or other US policy-makers, whose hands are tied by the new isolationist sentiment, will be seen by many Venezuelans as a sign of defeat or weakness. Rule by decree and increasing media control allow Chavez to broadcast his message of revolution without the delegitimization of international reprimand. Due to the circumstances, we can expect to see Chavez grow even bolder in his rhetoric, policy, and cooperation with states unfriendly to the United States.
A populist, Chavez derives power mainly through aggressive partisan policy, media influence, and by cultivating an image of protector, defender, and revolutionary. His administration floods newspaper and television media with his political message as well as harsh rhetoric against the opposition. He also engages in more subtle forms of media control through a network of loyal supporters placed in high corporate media positions to influence content and, allegedly, to intimidate journalists. While some point to opposition television stations such as Globovision as examples of free press, Chavez refused to renew the operating license for RCTV, Venezuela’s second largest station, and supporter of the 2002 coup attempt. Furthermore, Chavez hosts a live talk show, Alo Presidente, in which he addresses political and social issues. This show was broadcast weekly until January, when Chavez announced that it would become daily.
Chavez’s “Bolivarian Missions” ostensibly constitute a strive towards democratic socialism, emphasizing poverty reduction, free health care, free education, worker-managed governance, and nationalization of communications, industry, and natural resources. In January, Chavez began a fresh six-year term and passed a new enabling act, expanding his powers for the next 18 months to rule by decree. Critics call it a blitz towards authoritarianism, while Chavez and his administration look forward to a new era of “maximum revolution.”
Chavez’s foreign policy has relied on an adversarial position towards the United States. He has drawn legitimacy for a trade agreement and coalition of Latin American leaders Evo Morales and Fidel Castro and for another coalition with Iran and Russia. Branding Bush an imperialist, “el Diablo,” and “pendejo,” Chavez’s image of strength and independence from the world’s greatest power allows him to push harder on anti-market reforms. The two leaders have had harsh rhetorical squabbles that may be coming to an end.
The United States has experienced an enormous shift in its foreign policy discourse. Only months after the 2006 US midterm elections that saw Democrats win control of both the House and Senate, the American foreign policy discourse has shifted. Whether due to failures in Iraq and a worsening situation in Afghanistan, or to a shift in party control of both legislative houses, isolationist and anti-interventionist rhetoric has made a revival. In February, the House voted to reprimand the president for his Iraq policy. Further Iraq involvement, for better or worse, will be hampered by disagreements between President Bush and Democrats and skeptical Republicans in the House and Senate. Furthermore, with discussion of interventions in Iran and North Korea on the rise, the United States is in a difficult position, highly skeptical of any type of escalation in new geopolitical regions.
Chavez now has more space to develop his image as protector of the Venezuelan people. In early March, 2007, he held a protest against President Bush’s Latin American trade talks, setting up rallies virtually next door. The lack of response from Bush or other US policy-makers, whose hands are tied by the new isolationist sentiment, will be seen by many Venezuelans as a sign of defeat or weakness. Rule by decree and increasing media control allow Chavez to broadcast his message of revolution without the delegitimization of international reprimand. Due to the circumstances, we can expect to see Chavez grow even bolder in his rhetoric, policy, and cooperation with states unfriendly to the United States.
The Baby Gorilla: China's Military Ambitions by Claudio Guler
Today, all eyes in the international arena are focused on the events unfolding in Iraq, and with good reason. But for a brief moment on January 11th, 2007, China offered its own glimpse into the future of the international order.
Carried out unilaterally and in complete secrecy, the Chinese tested an anti-satellite intermediate range ballistic missile (IRBM). The target was one of its own aging weather satellites orbiting 537 miles above the surface of the earth. The IRBM successfully hit its target and managed to destroy it through simple collision. Traveling at 4.34 miles per second, the IRBM crumbled the weather satellite and in the process sent harmful space debris spewing into near Earth orbits.
With this test, China has become only the third country in the world, following the US and the former USSR, to develop and test the technology necessary to physically terminate a satellite. This can be considered quite an engineering accomplishment achieved by the Chinese and one that may signify serious consequences for US military power. However, it was the manner in which the test was carried out that raised eyebrows across the international community.
The unilateral and clandestine nature of the test has raised questions about its rationale. In response, the US, Japan, Australia, and South Korea all immediately filed complaints with Beijing, stating they have no intentions of commencing an arms race in space. Although this was a standardized diplomatic reaction, these countries – especially the US – may be overlooking the bold print message the Chinese wanted to send.
Following the fall of the Soviet Union and the dissolution of the bipolar system came the never before seen tranquility of the 1990’s and a world overwhelmingly governed by US hegemony. With the election of George W. Bush in 2000, the US’ superpower status remained, but the tranquility of the 90’s quickly faded. Now, China’s test of an anti-satellite weapon may be implicitly challenging US hegemony with confidence.
The US has recently acted with a great deal of bravado around the world, and this may be an early sign of others’ displeasure. A curiously relevant example of such US bravado has come from President Bush’s review of the US National Space Policy (NSP) in 2006. The opening remarks that state the guiding principles of the unclassified segment of the US NSP are written in a rather one-sided tone. The most controversial of which states: “The United States will: preserve its rights, capabilities, and freedom of action in space; dissuade or deter others from either impeding those rights or developing capabilities intended to do so; take those actions necessary to protect its space capabilities; respond to interference; and deny, if necessary, adversaries the use of space capabilities hostile to U.S. national interests.”
The Bush administration also recently withdrew from the 1972 Anti-Ballistic Missile Treaty in 2002. This treaty was designed to reduce tensions in conjunction with nuclear weapons development. By limiting nations’ legal abilities to construct national safety nets against incoming nuclear weapons, this treaty was an intricate pillar in the international organization and the laws of space. The combination of such actions have made other nations uneasy about the US’ intentions to maintain the non-militarized order of space.
When questioned about the Chinese launch of an anti-satellite IRBM, the White House press secretary responded: “…we do want a civil space cooperation with the Chinese and others.” Cooperation? If cooperation was the policy of the current US administration, why did they in a 2005 UN Security Council vote to call for negotiations on a space treaty to limit the militarization of space, cast their vote as the only ‘no’ against 160 ‘yes?’
Is it possible that this test was meant to send a message to the US to tone down its strutting and to return to the negotiating table? If Bush refuses to see this, China has clearly expressed its right and ability to make future war fighting difficult for the United States. This matter is particularly pertinent when combined with China’s massive military buildup over the past ten years and its express desire to have Taiwan under the Mainland China communist rule. In the past, the US has vowed to defend Taiwanese sovereignty, which has been an underlying tension in international security.
A recent article in the Washington Times by Bill Gertz, entitled “Chinese Dragon Awakes,” outlines the scale of China’s military buildup. Copious amounts of funding from China’s rapidly developing economy have afforded China the opportunity to modernize their armed forces. Although still far behind the US military’s capabilities, Gertz says, “China is building its military forces faster that US intelligence and military analysts expected.” With a revitalized high-tech military that can disrupt US communications, tracking, and guidance systems in times of war, such capabilities would make defending Taiwan and the homeland significantly more difficult.
The prescription is for a change of course. The US should reverse its quasi-imperialistic behavior and not only speak of cooperation, but also pursue it. The Chinese IRBM launch is a rather minor issue that tells a much larger story. By returning to the negotiating table on this issue, the US can begin the process of giving others less reason for concern. At the least, negotiating is better than ignoring. Choosing to ignore will prove deconstructive and, in the long run, damaging.
In conclusion, it should come as no surprise that the Chinese were the ones to audaciously challenge US hegemony. For millennia, the Chinese have been a unified civilization and one that intends to rise again. Right now, the US is the 800-pound gorilla sitting in the room. However, a baby gorilla sits not far away, and it is difficult to imagine this baby gorilla not growing up. When this day comes, do you want to be the one sitting next to the uncomfortable 800-pound gorilla?
Carried out unilaterally and in complete secrecy, the Chinese tested an anti-satellite intermediate range ballistic missile (IRBM). The target was one of its own aging weather satellites orbiting 537 miles above the surface of the earth. The IRBM successfully hit its target and managed to destroy it through simple collision. Traveling at 4.34 miles per second, the IRBM crumbled the weather satellite and in the process sent harmful space debris spewing into near Earth orbits.
With this test, China has become only the third country in the world, following the US and the former USSR, to develop and test the technology necessary to physically terminate a satellite. This can be considered quite an engineering accomplishment achieved by the Chinese and one that may signify serious consequences for US military power. However, it was the manner in which the test was carried out that raised eyebrows across the international community.
The unilateral and clandestine nature of the test has raised questions about its rationale. In response, the US, Japan, Australia, and South Korea all immediately filed complaints with Beijing, stating they have no intentions of commencing an arms race in space. Although this was a standardized diplomatic reaction, these countries – especially the US – may be overlooking the bold print message the Chinese wanted to send.
Following the fall of the Soviet Union and the dissolution of the bipolar system came the never before seen tranquility of the 1990’s and a world overwhelmingly governed by US hegemony. With the election of George W. Bush in 2000, the US’ superpower status remained, but the tranquility of the 90’s quickly faded. Now, China’s test of an anti-satellite weapon may be implicitly challenging US hegemony with confidence.
The US has recently acted with a great deal of bravado around the world, and this may be an early sign of others’ displeasure. A curiously relevant example of such US bravado has come from President Bush’s review of the US National Space Policy (NSP) in 2006. The opening remarks that state the guiding principles of the unclassified segment of the US NSP are written in a rather one-sided tone. The most controversial of which states: “The United States will: preserve its rights, capabilities, and freedom of action in space; dissuade or deter others from either impeding those rights or developing capabilities intended to do so; take those actions necessary to protect its space capabilities; respond to interference; and deny, if necessary, adversaries the use of space capabilities hostile to U.S. national interests.”
The Bush administration also recently withdrew from the 1972 Anti-Ballistic Missile Treaty in 2002. This treaty was designed to reduce tensions in conjunction with nuclear weapons development. By limiting nations’ legal abilities to construct national safety nets against incoming nuclear weapons, this treaty was an intricate pillar in the international organization and the laws of space. The combination of such actions have made other nations uneasy about the US’ intentions to maintain the non-militarized order of space.
When questioned about the Chinese launch of an anti-satellite IRBM, the White House press secretary responded: “…we do want a civil space cooperation with the Chinese and others.” Cooperation? If cooperation was the policy of the current US administration, why did they in a 2005 UN Security Council vote to call for negotiations on a space treaty to limit the militarization of space, cast their vote as the only ‘no’ against 160 ‘yes?’
Is it possible that this test was meant to send a message to the US to tone down its strutting and to return to the negotiating table? If Bush refuses to see this, China has clearly expressed its right and ability to make future war fighting difficult for the United States. This matter is particularly pertinent when combined with China’s massive military buildup over the past ten years and its express desire to have Taiwan under the Mainland China communist rule. In the past, the US has vowed to defend Taiwanese sovereignty, which has been an underlying tension in international security.
A recent article in the Washington Times by Bill Gertz, entitled “Chinese Dragon Awakes,” outlines the scale of China’s military buildup. Copious amounts of funding from China’s rapidly developing economy have afforded China the opportunity to modernize their armed forces. Although still far behind the US military’s capabilities, Gertz says, “China is building its military forces faster that US intelligence and military analysts expected.” With a revitalized high-tech military that can disrupt US communications, tracking, and guidance systems in times of war, such capabilities would make defending Taiwan and the homeland significantly more difficult.
The prescription is for a change of course. The US should reverse its quasi-imperialistic behavior and not only speak of cooperation, but also pursue it. The Chinese IRBM launch is a rather minor issue that tells a much larger story. By returning to the negotiating table on this issue, the US can begin the process of giving others less reason for concern. At the least, negotiating is better than ignoring. Choosing to ignore will prove deconstructive and, in the long run, damaging.
In conclusion, it should come as no surprise that the Chinese were the ones to audaciously challenge US hegemony. For millennia, the Chinese have been a unified civilization and one that intends to rise again. Right now, the US is the 800-pound gorilla sitting in the room. However, a baby gorilla sits not far away, and it is difficult to imagine this baby gorilla not growing up. When this day comes, do you want to be the one sitting next to the uncomfortable 800-pound gorilla?
Iraq: It's Not Over 'til it's Over by Adam Khatib
American intervention in Iraq has failed to establish a stable, democratic Iraq. This statement cannot be denied. However the notion, proposed by members of the Democratic Congress including current presidential frontrunners Hilary Rodham Clinton and Barack Obama, that removing American forces from the situation will come to improve the situation for Iraqis is an inherent absurdity. Scheduled withdrawal dates and caps on troop levels spell disaster for the future of Iraq.
The plan presented by President Bush calls for increased troop involvement in the mixed neighborhoods in Baghdad in which Sunni and Shia temperaments have turned towards abhorrent levels of violence. In order to stem the bloodshed, the plan calls for an American troop increase of approximately 22,000 soldiers and Marines. These added forces will help to halt levels of violence thereby improving the ability of Iraqi politicians to carry out the bargaining processes needed to settle current sectarian differences. Crucial to solving these disagreements is the creation of a constitutional agreement regarding the sharing of funds from oil revenue between the Sunni, Shia, and Kurdish populations.
There is no guarantee that this plan will succeed. Counterinsurgency operations in Iraq would likely be better served by a number closer to 30,000 additional soldiers in order to improve security for the Iraqi people, raising the number of troops currently in Iraq to approximately 170,000. This number, combined with Iraqi and private security forces, will bring the ratio of soldiers per Iraqi civilians close to numbers necessary to effectively battle insurgent forces. In addition, the current increase must be properly managed and sustained for a long enough period as to allow security to take hold, likely a period of 12-18 months. This will certainly have a greater chance of success than leaving inadequate troop levels as they are.
According to the updated counterinsurgency manual, coauthored by newly appointed Multinational Force Iraq commander General Patraeus, minimal troop numbers for security and trust-building operations should be set at 20 soldiers per 1,000 inhabitants. Such was the case in 2005 in the northern Iraqi city of Tal Afar in which American forces under the Col H.R. McMaster were able to institute a “clear, hold, and build” strategy. After clearing the city of insurgent forces, American forces stayed and maintained a daily security presence on the streets while at the same time working to rebuild damaged infrastructure. Such measures focus on stability and gaining the trust of residents. Such measures can only be successful if adequate levels of troops are available to apply them.
Deep-seeded sectarian rifts have undeniably widened in recent months bringing increasing levels of violence. What is certain however is that a withdrawal of American forces in the current lack of instability will fail to bring law, order and democracy to Iraq. What withdrawal will do is increase the rate of a descending spiral into death and destruction. The oft-cited Baker Hamilton report, though calling for a phased withdrawal of American forces, itself notes this grim fact.
In order to have any chance of success, American commanders must be able to evaluate and control the levels of troops needed on a mission specific basis. Setting a troop-level cap would tie the hand of General Petraeus and leave current forces stretched far to thin to accomplish security tasks. Setting troop withdrawal schedules serves only to eliminate any American encouragement for compromise between the Shia, Kurds, and Sunnis.
Abandoning Iraq would likely lead to one of a series of disturbing outcomes. One is a failed Iraqi state, subject to the vying whims of its neighbor nation states. Such an Iraq would be a continually devastated nation in which sectarian violence and terrorism are the perpetual and inevitable way of life. Another outcome is a partitioned Iraq in which the creation of vying Sunni, Shia and Kurdish states is marred by violence over oil resources. Yet another possibility is an Iraq in which the majority Shia government, perhaps under the influence of Iran, fully endorses the wholesale slaughter of the Sunni minority. None of these options are acceptable outcomes for the US or Iraqi interests on the whole. Of course these outcomes are not the only possible ones, however what is impossible is a magical transition towards a viable political arrangement if America leaves Iraq in its current situation.
The idea that removal of US troops will force Malaki into compromise is counter-intuitive at best. Pulling out American troops, as advocated under the guise of “redeployment” or “phased withdrawal” by Senate Democrats such as Hillary Rodham Clinton and Barack Obama, would not have the desired effect. It would leave the legitimate Iraqi government and people mercy to the throes of a full-fledged civil war. Skyrocketing levels of violence far greater than any amounts that have been previously experienced are the likely outcome.
It is not too late for the situation in Iraq to improve. The fatalistic notion that Iraq is a lost cause and that there is no solution for the Iraqi government and people is tantamount only to casting the Iraqis into doom. It is absolutely necessary that Iraqis create compromise and change for themselves. America cannot accomplish these tasks. What America can do is set the stage for the necessary political process to take place. If security levels are increased and the Iraqis still fail to agree to compromise, continuation of civil war will be inevitable and it will be time for American forces to leave. At this point there is still an opportunity for compromise, and as long as there is a possibility, American forces still have a role to play.
The plan presented by President Bush calls for increased troop involvement in the mixed neighborhoods in Baghdad in which Sunni and Shia temperaments have turned towards abhorrent levels of violence. In order to stem the bloodshed, the plan calls for an American troop increase of approximately 22,000 soldiers and Marines. These added forces will help to halt levels of violence thereby improving the ability of Iraqi politicians to carry out the bargaining processes needed to settle current sectarian differences. Crucial to solving these disagreements is the creation of a constitutional agreement regarding the sharing of funds from oil revenue between the Sunni, Shia, and Kurdish populations.
There is no guarantee that this plan will succeed. Counterinsurgency operations in Iraq would likely be better served by a number closer to 30,000 additional soldiers in order to improve security for the Iraqi people, raising the number of troops currently in Iraq to approximately 170,000. This number, combined with Iraqi and private security forces, will bring the ratio of soldiers per Iraqi civilians close to numbers necessary to effectively battle insurgent forces. In addition, the current increase must be properly managed and sustained for a long enough period as to allow security to take hold, likely a period of 12-18 months. This will certainly have a greater chance of success than leaving inadequate troop levels as they are.
According to the updated counterinsurgency manual, coauthored by newly appointed Multinational Force Iraq commander General Patraeus, minimal troop numbers for security and trust-building operations should be set at 20 soldiers per 1,000 inhabitants. Such was the case in 2005 in the northern Iraqi city of Tal Afar in which American forces under the Col H.R. McMaster were able to institute a “clear, hold, and build” strategy. After clearing the city of insurgent forces, American forces stayed and maintained a daily security presence on the streets while at the same time working to rebuild damaged infrastructure. Such measures focus on stability and gaining the trust of residents. Such measures can only be successful if adequate levels of troops are available to apply them.
Deep-seeded sectarian rifts have undeniably widened in recent months bringing increasing levels of violence. What is certain however is that a withdrawal of American forces in the current lack of instability will fail to bring law, order and democracy to Iraq. What withdrawal will do is increase the rate of a descending spiral into death and destruction. The oft-cited Baker Hamilton report, though calling for a phased withdrawal of American forces, itself notes this grim fact.
In order to have any chance of success, American commanders must be able to evaluate and control the levels of troops needed on a mission specific basis. Setting a troop-level cap would tie the hand of General Petraeus and leave current forces stretched far to thin to accomplish security tasks. Setting troop withdrawal schedules serves only to eliminate any American encouragement for compromise between the Shia, Kurds, and Sunnis.
Abandoning Iraq would likely lead to one of a series of disturbing outcomes. One is a failed Iraqi state, subject to the vying whims of its neighbor nation states. Such an Iraq would be a continually devastated nation in which sectarian violence and terrorism are the perpetual and inevitable way of life. Another outcome is a partitioned Iraq in which the creation of vying Sunni, Shia and Kurdish states is marred by violence over oil resources. Yet another possibility is an Iraq in which the majority Shia government, perhaps under the influence of Iran, fully endorses the wholesale slaughter of the Sunni minority. None of these options are acceptable outcomes for the US or Iraqi interests on the whole. Of course these outcomes are not the only possible ones, however what is impossible is a magical transition towards a viable political arrangement if America leaves Iraq in its current situation.
The idea that removal of US troops will force Malaki into compromise is counter-intuitive at best. Pulling out American troops, as advocated under the guise of “redeployment” or “phased withdrawal” by Senate Democrats such as Hillary Rodham Clinton and Barack Obama, would not have the desired effect. It would leave the legitimate Iraqi government and people mercy to the throes of a full-fledged civil war. Skyrocketing levels of violence far greater than any amounts that have been previously experienced are the likely outcome.
It is not too late for the situation in Iraq to improve. The fatalistic notion that Iraq is a lost cause and that there is no solution for the Iraqi government and people is tantamount only to casting the Iraqis into doom. It is absolutely necessary that Iraqis create compromise and change for themselves. America cannot accomplish these tasks. What America can do is set the stage for the necessary political process to take place. If security levels are increased and the Iraqis still fail to agree to compromise, continuation of civil war will be inevitable and it will be time for American forces to leave. At this point there is still an opportunity for compromise, and as long as there is a possibility, American forces still have a role to play.
Interview with Charles C. Sipos (co-counsel for Salim Ahmed Hamdan in Hamdan v. Rumsfeld (2006) by Angad Singh
In the wake of the 9/11 attacks, the executive branch of the US government established special military tribunals to try alleged enemy combatants held in Guantanamo Bay. On June 29th, 2006, the Supreme Court of the United States ruled in Hamdan v. Rumsfeld (2006) that the military tribunals violated both domestic and international law. I had the honor to interview the co-counsel for Salim Ahmed Hamdan regarding the Supreme Court ruling and the Military Commissions Act (MCA) that was passed by Congress as a consequence of the Court’s ruling. Any views presented in the interview do not necessarily reflect those of anyone involved with the International Intelligencer.
Q: On the behalf of the International Intelligencer, I thank you for your participation in this interview. Firstly, could you please tell me your occupation, about your involvement with Hamdan v. Rumsfeld, and what theorists or theories have most influenced your political thinking?
A: I first became involved in the Hamdan case when the law firm where I’m an associate, Perkins Coie in Seattle, was asked to act as co-counsel with Professor Neal Katyal and Lt. Commander Charlie Swift. We helped Prof. Katyal and Commander Swift prepare the initial habeas petition, and ultimately stayed on board throughout the course of the case. We continue on with them as co-counsel to this day. My primary area of responsibility focused on the extent to which the Executive’s system of military commissions complied with the procedures set forth in the Uniform Code of Military Justice (“UCMJ”). The UCMJ sets forth the primary and essential trial procedures for use in courts-martial. The Executive’s commissions were inconsistent with the UCMJ in a number of ways, although perhaps most notably, by allowing the trial to be conducted without the accused present. My own political views didn’t come into play for the representation of Hamdan. The Executive commission process that the Supreme Court ultimately struck down offended domestic and international law, and that conclusion wasn’t dependent on political views. So, I didn’t think about it that much.
Q: The majority opinion, as written by Justice Stevens, states that the military commissions created to try alleged unlawful combatants, such as Hamdan, are unconstitutional as they not only violate the domestic military law as enshrined in the Uniform Code of Military Justice (UCMJ), but also violate international laws of war, specifically, the Geneva Conventions. The main complaint, in terms of domestic law, was that the commissions violated the clause of the UCMJ that states courts-martial and military commissions must be “uniform insofar as practicable.” The Court argues that they were not uniform because of the ability to exclude the accused from being present at one’s own trial and that the accused may not view all the evidence used against one due to national security reasons. Is any aspect of national security at risk if the accused is presented with the evidence against the accused? Does the administration have any evidence of this claim? Is there any historic precedent for withholding evidence from the accused under domestic military law?
A: Although it is certainly possible that evidence presented in commission cases might pose security concerns, courts (including our Federal Courts) are well-equipped to deal with this kind of sensitive material. Numerous procedures already exist – the filing of documents or evidence under seal, presentation to judges in camera, closing the court room for certain portions of the proceeding – that allow courts to effectively address security concerns. We didn’t receive or review any specific evidence in Hamdan’s case (and of course, if we had, we couldn’t discuss it), but we did take the position that our existing Federal Courts and courts-martial could handle trials that implicated security concerns. In preparing Hamdan’s case, we did not uncover any cases where the prosecution was allowed to convict an accused on the basis of evidence that the accused never saw, and the Government did not put in any authority that supported such an argument. As the District Court judge in Hamdan commented, the Government is always free to elect not to put in particular evidence if it feels it is too sensitive. But they can’t have it both ways by withholding that evidence from the accused and then asking the court to nonetheless convict him on the basis of it.
Q: One argument used by the executive to dismiss alien enemy combatants’ claims to protections under the Geneva Conventions is that al-Qaeda is not a signatory to the convention. In terms of international law, the Court opinion, as authored by Justice Stevens, argued that it is irrelevant that al-Qaeda is not a signatory to the Geneva Conventions because Common Article 3 of those conventions still applies to them. However, the DC Federal Court of Appeals ruled that Geneva does not apply. Is it not a requirement that combatants must a) wear a standard uniform or visible emblem b) carry arms openly c) be a part of a chain of command and in general follow the laws of war to be protected under the Geneva Conventions? In light of al-Qaeda’s tactics of attacking civilians and violating the aforementioned requirements, are members of al-Qaeda protected under the Geneva Conventions? Since Geneva requires a competent tribunal to assess whether the combatants are lawful or not, do the Combatant Status Review Tribunals (CSRTs) constitute a competent tribunal to asses al-Qaeda and or the Taliban’s combatant status under domestic and or international law?
A: This area gets a bit complicated, but the short answer is that Common Article 3 of the Geneva Conventions (called “Common Article” because it appears in each of the four Geneva Conventions) protects persons who are not uniformed members of military forces. Hamdan denies he was a member of al-Qaeda, and there was never any hearing that complied with the requirements of the Geneva Convention – called an Article 5 hearing – determining his status to be anything other than a prisoner of war. Our position has been that the CSRT did not meet the requirements of Article 5 and was not a “competent tribunal” for purposes of making this determination. Moreover, it is undisputed that the Government consistently maintained that it need not comply with the Geneva Convention’s Article 5 status hearing requirements.
Q: Justice Stevens has argued that Common Article 3 does afford protections to persons such as Hamdan because he was caught in the territory of a Geneva signatory, Afghanistan, in a conflict not of an “international character.” But, is not the current War on Terrorism global in nature? Should the phrase, “armed conflict not of an international character” be read broadly to include the current War on Terrorism due to the omission of a previous draft of Common Article 3 that clarified the phrase by claiming, “especially in cases of civil war, colonial conflicts, or wars of religion,” as Justice Stevens has argued?
A: I believe Justice Stevens’ analysis was correct in determining that the Geneva Conventions extend to Hamdan and the circumstances of his capture. Whether the Geneva Conventions would apply to every person the Government claims has been captured as part of the “War on Terror” is an open question, but I think the Court in Hamdan was correct to reject the Executive’s argument that its actions in that “War” are somehow universally exempt from the dictates of international law and the Geneva Conventions.
Q: Congress passed the Authorization for the Use of Military Force (AUMF) a week after the 9/11 attacks which authorized the President to “use all necessary and appropriate force” to combat nations, organizations, or persons that were involved or aided the 9/11 attacks in order to prevent such acts from occurring on US soil again. The executive has used the AUMF to argue that Congress had given it powers to establish the tribunals in question in the Hamdan case. How far does the AUMF let the executive conduct the War on Terrorism? Does the AUMF bolster the administration’s argument about the necessity of a unitary executive in a time of war? How much purchase does unitary executive theory have in Court? How can the Court reconcile the demands of war with the demands of domestic and international law? Are there legal gaps that do not address pertinent issues in the War on Terrorism? Should domestic and or international law be updated to take into account the various issues the courts have encountered in the War on Terrorism?
A: As the Court in Hamdan observed, the AUMF did not speak in any way to the President’s authority to conduct trials or to mete out punishment. It simply mobilized military forces, but did not otherwise amplify the Executive’s constitutional powers or authorize unilateral Executive action in spheres of authority committed to the Judiciary or Congress. Again, it is certainly possible to argue that domestic or international law should be modified in order to address threats posed by international terrorism, but one of the key insights of the Hamdan decision is that it is not for the President alone to do so.
Q: The DC Federal Court of Appeals ruled that the Geneva Conventions are not judicially enforceable. Are there any precedents that weaken or strengthen this argument? As precedent is concerned, how much can the courts rely on Ex Parte Quirin (1942), a Supreme Court case that upheld President Roosevelt’s convening of a military tribunal to try captured German spies?
A: The Hamdan Court effectively rejected this reading, by holding that Hamdan had enforceable rights under the Geneva Conventions. Since at least the Head Money Cases, decided in 1884, it has been the law that where treaties provide for private or individual rights (and the Geneva Convention is such a treaty), then those rights are judicially enforceable by courts.
Q: The administration has tried to circumvent terrorism cases from judicial review through clauses in the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA). How have these clauses prevented, or not, court review of writs of habeas corpus, detainee treatment, and other issues? Is Justice Scalia’s argument in Hamdan correct, that the court does not have jurisdiction due to the language of the DTA?
A: The Court in Hamdan rejected the Government’s argument that the DTA stripped federal courts of jurisdiction to hear pending cases filed by detainees challenging their detention or trial before military commissions. Whether or not the MCA accomplishes what the DTA did not, is likely an issue that the Supreme Court will have an opportunity to decide in the coming months.
Q: In light of the massage of the MCA, what course of action has Hamdan taken, or is taking?
A: Hamdan’s case was remanded to the District Court (the trial court level in our Federal Courts). The Judge there ruled that he no longer had jurisdiction over Hamdan’s case, because the MCA had effectively withdrawn that jurisdiction. Hamdan is currently appealing that decision.
Q: Do certain provisions of the MCA violate the ruling of the Supreme Court in Hamdan v. Rumsfeld? Particularly the admission of hearsay evidence and the continued ability of the military judge to exclude the accused from the trial if classified information “could reasonably be expected to cause identifiable damage to the national security.” Do these clauses violate the UCMJ uniformity requirement as the Court has ruled? Do these clauses violate Common Article 3 in its requirement to try the accused in a “regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”?
A: Angad – sorry, but answering this question in full requires discussion of ongoing legal work we’re doing on Hamdan’s case. The rules on attorney-client privilege and attorney work-product make it tough for me to discuss thoroughly.
Q: The MCA states that conspiracy is a triable offense in the new military tribunals. Does this violate the Court’s ruling in Hamdan v. Rumsfeld? Furthermore, does the MCA foreclose the possibility of court review of writs of habeas corpus for unlawful enemy combatants? Does it also foreclose judicial review of such an alien’s condition of detention as pertaining to coercive interrogation/torture domestic or abroad through extraordinary renditions?
A: The MCA attempts to do these things, and whether or not the law is constitutional is something that the Supreme Court will ultimately be asked to decide. My answer to the questions below are pretty much the same, and again because of privilege concerns, am not in a position to provide too much more detail than that. I can tell you that certain aspects of the MCA are being challenged by Hamdan in his appeal, by a group of other Guantanamo detainees whose cases are in the D.C. Circuit Court of Appeals, and by a case in the Fourth Circuit Court of Appeals involving a resident alien whom the government contends is an enemy combatant and is currently held in prison within the United States. At this point, these challenges primarily concern the question of whether or not federal courts still have habeas corpus jurisdiction over detainee cases.
Q: Does the MCA legalize extraordinary rendition in its language that states a convicted alien enemy combatant may be confined in a prison of one of the US’ allies?
No answer.
Q: Does the MCA exclude the US from section 1(d) of Common Article 3 that prohibits “the passing of sentences and the carrying out of execution without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees, which are recognized as indispensable by civilized peoples”? Can the MCA legally exempt the US from this clause? If so, are there not drastic ramifications for international law in general? Does this exemption, if it is an exemption, violate the Supreme Court’s ruling that the military commissions must comply with Common Article 3?
No answer.
Q: Is the MCA constitutional because the most important laws governing these issues are domestic ones, as Justice Kennedy implied in Hamdan v. Rumsfeld? What are, and are not, grounds for determining the MCA as unconstitutional? Is the MCA being challenged through the courts? What is the likelihood of certain aspects of the MCA being deemed unconstitutional?
No answer.
Q: Do you have any closing comments? I thank you very much for your participation in the interview.
A: I appreciate you contacting me, and am glad to hear that students at the collegiate level are taking an interest in the Hamdan case and the important issues that it presents. Good luck with the journal and feel free to contact me if you have any follow-up. Thanks again.
Q: On the behalf of the International Intelligencer, I thank you for your participation in this interview. Firstly, could you please tell me your occupation, about your involvement with Hamdan v. Rumsfeld, and what theorists or theories have most influenced your political thinking?
A: I first became involved in the Hamdan case when the law firm where I’m an associate, Perkins Coie in Seattle, was asked to act as co-counsel with Professor Neal Katyal and Lt. Commander Charlie Swift. We helped Prof. Katyal and Commander Swift prepare the initial habeas petition, and ultimately stayed on board throughout the course of the case. We continue on with them as co-counsel to this day. My primary area of responsibility focused on the extent to which the Executive’s system of military commissions complied with the procedures set forth in the Uniform Code of Military Justice (“UCMJ”). The UCMJ sets forth the primary and essential trial procedures for use in courts-martial. The Executive’s commissions were inconsistent with the UCMJ in a number of ways, although perhaps most notably, by allowing the trial to be conducted without the accused present. My own political views didn’t come into play for the representation of Hamdan. The Executive commission process that the Supreme Court ultimately struck down offended domestic and international law, and that conclusion wasn’t dependent on political views. So, I didn’t think about it that much.
Q: The majority opinion, as written by Justice Stevens, states that the military commissions created to try alleged unlawful combatants, such as Hamdan, are unconstitutional as they not only violate the domestic military law as enshrined in the Uniform Code of Military Justice (UCMJ), but also violate international laws of war, specifically, the Geneva Conventions. The main complaint, in terms of domestic law, was that the commissions violated the clause of the UCMJ that states courts-martial and military commissions must be “uniform insofar as practicable.” The Court argues that they were not uniform because of the ability to exclude the accused from being present at one’s own trial and that the accused may not view all the evidence used against one due to national security reasons. Is any aspect of national security at risk if the accused is presented with the evidence against the accused? Does the administration have any evidence of this claim? Is there any historic precedent for withholding evidence from the accused under domestic military law?
A: Although it is certainly possible that evidence presented in commission cases might pose security concerns, courts (including our Federal Courts) are well-equipped to deal with this kind of sensitive material. Numerous procedures already exist – the filing of documents or evidence under seal, presentation to judges in camera, closing the court room for certain portions of the proceeding – that allow courts to effectively address security concerns. We didn’t receive or review any specific evidence in Hamdan’s case (and of course, if we had, we couldn’t discuss it), but we did take the position that our existing Federal Courts and courts-martial could handle trials that implicated security concerns. In preparing Hamdan’s case, we did not uncover any cases where the prosecution was allowed to convict an accused on the basis of evidence that the accused never saw, and the Government did not put in any authority that supported such an argument. As the District Court judge in Hamdan commented, the Government is always free to elect not to put in particular evidence if it feels it is too sensitive. But they can’t have it both ways by withholding that evidence from the accused and then asking the court to nonetheless convict him on the basis of it.
Q: One argument used by the executive to dismiss alien enemy combatants’ claims to protections under the Geneva Conventions is that al-Qaeda is not a signatory to the convention. In terms of international law, the Court opinion, as authored by Justice Stevens, argued that it is irrelevant that al-Qaeda is not a signatory to the Geneva Conventions because Common Article 3 of those conventions still applies to them. However, the DC Federal Court of Appeals ruled that Geneva does not apply. Is it not a requirement that combatants must a) wear a standard uniform or visible emblem b) carry arms openly c) be a part of a chain of command and in general follow the laws of war to be protected under the Geneva Conventions? In light of al-Qaeda’s tactics of attacking civilians and violating the aforementioned requirements, are members of al-Qaeda protected under the Geneva Conventions? Since Geneva requires a competent tribunal to assess whether the combatants are lawful or not, do the Combatant Status Review Tribunals (CSRTs) constitute a competent tribunal to asses al-Qaeda and or the Taliban’s combatant status under domestic and or international law?
A: This area gets a bit complicated, but the short answer is that Common Article 3 of the Geneva Conventions (called “Common Article” because it appears in each of the four Geneva Conventions) protects persons who are not uniformed members of military forces. Hamdan denies he was a member of al-Qaeda, and there was never any hearing that complied with the requirements of the Geneva Convention – called an Article 5 hearing – determining his status to be anything other than a prisoner of war. Our position has been that the CSRT did not meet the requirements of Article 5 and was not a “competent tribunal” for purposes of making this determination. Moreover, it is undisputed that the Government consistently maintained that it need not comply with the Geneva Convention’s Article 5 status hearing requirements.
Q: Justice Stevens has argued that Common Article 3 does afford protections to persons such as Hamdan because he was caught in the territory of a Geneva signatory, Afghanistan, in a conflict not of an “international character.” But, is not the current War on Terrorism global in nature? Should the phrase, “armed conflict not of an international character” be read broadly to include the current War on Terrorism due to the omission of a previous draft of Common Article 3 that clarified the phrase by claiming, “especially in cases of civil war, colonial conflicts, or wars of religion,” as Justice Stevens has argued?
A: I believe Justice Stevens’ analysis was correct in determining that the Geneva Conventions extend to Hamdan and the circumstances of his capture. Whether the Geneva Conventions would apply to every person the Government claims has been captured as part of the “War on Terror” is an open question, but I think the Court in Hamdan was correct to reject the Executive’s argument that its actions in that “War” are somehow universally exempt from the dictates of international law and the Geneva Conventions.
Q: Congress passed the Authorization for the Use of Military Force (AUMF) a week after the 9/11 attacks which authorized the President to “use all necessary and appropriate force” to combat nations, organizations, or persons that were involved or aided the 9/11 attacks in order to prevent such acts from occurring on US soil again. The executive has used the AUMF to argue that Congress had given it powers to establish the tribunals in question in the Hamdan case. How far does the AUMF let the executive conduct the War on Terrorism? Does the AUMF bolster the administration’s argument about the necessity of a unitary executive in a time of war? How much purchase does unitary executive theory have in Court? How can the Court reconcile the demands of war with the demands of domestic and international law? Are there legal gaps that do not address pertinent issues in the War on Terrorism? Should domestic and or international law be updated to take into account the various issues the courts have encountered in the War on Terrorism?
A: As the Court in Hamdan observed, the AUMF did not speak in any way to the President’s authority to conduct trials or to mete out punishment. It simply mobilized military forces, but did not otherwise amplify the Executive’s constitutional powers or authorize unilateral Executive action in spheres of authority committed to the Judiciary or Congress. Again, it is certainly possible to argue that domestic or international law should be modified in order to address threats posed by international terrorism, but one of the key insights of the Hamdan decision is that it is not for the President alone to do so.
Q: The DC Federal Court of Appeals ruled that the Geneva Conventions are not judicially enforceable. Are there any precedents that weaken or strengthen this argument? As precedent is concerned, how much can the courts rely on Ex Parte Quirin (1942), a Supreme Court case that upheld President Roosevelt’s convening of a military tribunal to try captured German spies?
A: The Hamdan Court effectively rejected this reading, by holding that Hamdan had enforceable rights under the Geneva Conventions. Since at least the Head Money Cases, decided in 1884, it has been the law that where treaties provide for private or individual rights (and the Geneva Convention is such a treaty), then those rights are judicially enforceable by courts.
Q: The administration has tried to circumvent terrorism cases from judicial review through clauses in the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA). How have these clauses prevented, or not, court review of writs of habeas corpus, detainee treatment, and other issues? Is Justice Scalia’s argument in Hamdan correct, that the court does not have jurisdiction due to the language of the DTA?
A: The Court in Hamdan rejected the Government’s argument that the DTA stripped federal courts of jurisdiction to hear pending cases filed by detainees challenging their detention or trial before military commissions. Whether or not the MCA accomplishes what the DTA did not, is likely an issue that the Supreme Court will have an opportunity to decide in the coming months.
Q: In light of the massage of the MCA, what course of action has Hamdan taken, or is taking?
A: Hamdan’s case was remanded to the District Court (the trial court level in our Federal Courts). The Judge there ruled that he no longer had jurisdiction over Hamdan’s case, because the MCA had effectively withdrawn that jurisdiction. Hamdan is currently appealing that decision.
Q: Do certain provisions of the MCA violate the ruling of the Supreme Court in Hamdan v. Rumsfeld? Particularly the admission of hearsay evidence and the continued ability of the military judge to exclude the accused from the trial if classified information “could reasonably be expected to cause identifiable damage to the national security.” Do these clauses violate the UCMJ uniformity requirement as the Court has ruled? Do these clauses violate Common Article 3 in its requirement to try the accused in a “regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”?
A: Angad – sorry, but answering this question in full requires discussion of ongoing legal work we’re doing on Hamdan’s case. The rules on attorney-client privilege and attorney work-product make it tough for me to discuss thoroughly.
Q: The MCA states that conspiracy is a triable offense in the new military tribunals. Does this violate the Court’s ruling in Hamdan v. Rumsfeld? Furthermore, does the MCA foreclose the possibility of court review of writs of habeas corpus for unlawful enemy combatants? Does it also foreclose judicial review of such an alien’s condition of detention as pertaining to coercive interrogation/torture domestic or abroad through extraordinary renditions?
A: The MCA attempts to do these things, and whether or not the law is constitutional is something that the Supreme Court will ultimately be asked to decide. My answer to the questions below are pretty much the same, and again because of privilege concerns, am not in a position to provide too much more detail than that. I can tell you that certain aspects of the MCA are being challenged by Hamdan in his appeal, by a group of other Guantanamo detainees whose cases are in the D.C. Circuit Court of Appeals, and by a case in the Fourth Circuit Court of Appeals involving a resident alien whom the government contends is an enemy combatant and is currently held in prison within the United States. At this point, these challenges primarily concern the question of whether or not federal courts still have habeas corpus jurisdiction over detainee cases.
Q: Does the MCA legalize extraordinary rendition in its language that states a convicted alien enemy combatant may be confined in a prison of one of the US’ allies?
No answer.
Q: Does the MCA exclude the US from section 1(d) of Common Article 3 that prohibits “the passing of sentences and the carrying out of execution without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees, which are recognized as indispensable by civilized peoples”? Can the MCA legally exempt the US from this clause? If so, are there not drastic ramifications for international law in general? Does this exemption, if it is an exemption, violate the Supreme Court’s ruling that the military commissions must comply with Common Article 3?
No answer.
Q: Is the MCA constitutional because the most important laws governing these issues are domestic ones, as Justice Kennedy implied in Hamdan v. Rumsfeld? What are, and are not, grounds for determining the MCA as unconstitutional? Is the MCA being challenged through the courts? What is the likelihood of certain aspects of the MCA being deemed unconstitutional?
No answer.
Q: Do you have any closing comments? I thank you very much for your participation in the interview.
A: I appreciate you contacting me, and am glad to hear that students at the collegiate level are taking an interest in the Hamdan case and the important issues that it presents. Good luck with the journal and feel free to contact me if you have any follow-up. Thanks again.
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