Surprise, Surprise, Surprise…

Poster from the ACLU

Chris Strohm at The Atlantic:

Deserting and embarrassing their GOP House leadership, 26 Republicans–including several members of the Tea Party Caucus–bolted Tuesday night to join Democrats in a surprise rejection of a centerpiece of Bush-era powers to fight terrorism that curbed American civil liberties.

The House Republican leaders had expected an easy victory in their efforts to reauthorize three expiring powers under the PATRIOT Act–among them, allowing ”roving wiretaps” and searches of people’s medical, banking, and library records. It is likely the GOP will succeed in a later vote, but Tuesday night’s rebuff sent a strong message.

By a 277-148 margin, the bill fell just shy of the two-thirds majority needed to pass the House under suspension of the rules, representing somewhat of an embarrassment for House Republicans on a matter of national security. Republicans were accusing Democrats, many of whom had supported the extension of the provisions in the 111th Congress, of hypocrisy.

Robert Costa at The Corner:

“Believe me, House leadership was caught off guard,” says one Republican committee aide. “They really thought that they had everybody contained. They knew there would be a few defections, but they did not expect this group to try and out–Tea Party one another. The Ron Paul influence, especially on civil liberties, is stronger than you think.”

Monday’s vote was proffered under a suspension of the rules, which requires a two-thirds majority. Other House GOP aides tell NRO that the extension will likely brought up again via “regular orders” in the coming weeks; this requires a simple majority, and they expect it to pass.

The White House, one aide points out, will now be forced to work with Congress, especially with three provisions set to expire on February 28. The House GOP would like to extend the provisions until December 8; Senate Democrats and the White House would prefer extending the provisions through 2013, in order to take it off of the table for the election.

With the clock ticking, Republicans believe they can set the stakes, regardless of how they stumbled on the initial vote. On Monday, an aide close to the process notes, many Democrats who are supportive of a one-year extension voted against it, in order to stand with those who would like to see the provisions extended through 2013. So while Republicans will be whipping hard, to be sure, Democrats, too, he predicts, will be having their own internal debate about a short-term extension.

Conn Carroll at Heritage:

The three amendments voted on last night have been extensively modified over the years and now include significant new safeguards, including substantial court oversight. They include:

Roving Surveillance Authority: Roving wiretaps have been used routinely by domestic law enforcement in standard criminal cases since the mid-1980s. However, national security agents did not have this garden-variety investigative tool until the passage of the PATRIOT Act in 2001. Section 206 of the PATRIOT Act allows law enforcement, after approval from the FISA court, to track a suspect as he moves from cell phone to cell phone. The government must first prove that there is “probable cause” to believe that the target is a foreign power or an agent of a foreign power. It further requires continuous monitoring by the FISA court and substantial reporting requirements to that Court by the government.

Business Record Orders: Domestic law enforcement, working with local prosecutors, routinely rely on business records through the course of their investigations, oftentimes through the use of a subpoena. However, national security agents did not have the same authority to acquire similar evidence prior to the passage of Section 215 of the PATRIOT Act. This provision allows law enforcement, with approval from the FISA court, to require disclosure of documents and other records from businesses and other institutions (third parties) without a suspect’s knowledge. The third-party recipients of 215 orders can even appeal any order to the FISA court.

The Lone Wolf Provision: Section 6001 of the Intelligence Reform and Terrorism Prevention Act allows law enforcement to track non-U.S. citizens acting alone to commit acts of terrorism that are not connected to an organized terrorist group or other foreign power. While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.

At least 36 known terrorist plots have been foiled since 9/11. The United States continues to face a serious threat of terrorism. National security investigators continue to need the above authorities to track down terror leads and dismantle plots before the public is any danger. Opponents of these provisions have produced little evidence of any PATRIOT Act misuse. All of the provisions above are subject to routine oversight by both the FISA court and Congress, and no single provision of the PATRIOT Act has ever been found unconstitutional. Congress should not let the sunset provisions expire and should instead seek permanent authorization.

David Weigel:

So did the Tea Party movement beat reauthorization? Here’s a list of the 26 Republicans who voted no. In italics — the eight members who were elected in 2010 in the Tea Party wave.

Justin Amash
Roscoe Bartlett
Rob Bishop
Paul Broun
John Campbell
John Duncan
Mike Fitzpatrick*
Chris Gibson
Tom Graves
Dean Heller
Randy Hultgren
Tim Johnson
Walter Jones
Jack Kingston
Raul Labrador
Connie Mack
Kenny Marchant
Tom McClintock
Ron Paul
Denny Rehberg
Phil Roe
Dana Rohrabacher
Bobby Schilling
David Schweikert
Rob Woodall
Don Young

Many of the big Tea Party names, like Michele Bachmann, Kristi Noem, and Allen West, voted to pass the authorization. I break this out because there’ll be a temptation to say “the Tea Party and its isolationist elements beat the reauthorization,” and that’s not quite it.

Glenn Greenwald:

But what happened last night highlights the potential to subvert the two-party stranglehold on these issues — through a left-right alliance that opposes the Washington insiders who rule both parties.  So confident was the House GOP leadership in commanding bipartisan support that they put the Patriot Act extension up for a vote using a fast-track procedure that prohibits debate and amendments and, in return, requires 2/3 approval.  But 26 of the most conservative Republicans — including several of the newly elected “Tea Party” members — joined the majority of Democratic House members in voting against the extension, and it thus fell 7 votes short.  These conservative members opposed extension on the ground that more time was needed to understand whether added safeguards and oversight are needed.

The significance of this event shouldn’t be overstated.  The proposed Patriot Act extension still commanded support from a significant majority of the House (277-148), and will easily pass once the GOP leadership brings up the bill for a vote again in a few weeks using the standard procedure that requires only majority approval.  The vast majority of GOP members, including the leading Tea Party representatives, voted for it.  The Senate will easily pass it.  And the scope of the disagreement even among the Democrats opposing it is very narrow; even most of the “no” votes favor extending these provisions, albeit with the types of tepid safeguards proposed by Leahy.  So in one sense, what happened last night — as is true for most political “victories” — was purely symbolic.  The White House will get what it wants.

But while it shouldn’t be overstated, there is a real significance here that also shouldn’t be overlooked.  Rachel Maddow last night pointed out that there is a split on the Right — at least a rhetorical one — between what she called “authoritarian conservatives” and “libertarian conservatives.”  At some point, the dogmatic emphasis on limited state power, not trusting the Federal Government, and individual liberties — all staples of right-wing political propaganda, especially Tea Party sloganeering — has to conflict with things like oversight-free federal domestic surveillance, limitless government detention powers, and impenetrable secrecy (to say nothing of exploiting state power to advance culture war aims).   Not even our political culture can sustain contradictions as egregious as (a) reading reverently from the Constitution and venerating limits on federal power, and then (b) voting to vest the Federal Government with extraordinary powers of oversight-free surveillance aimed at the American people.

Adam Serwer at Greg Sargent’s place:

Sadly, the revolt probably won’t last, as there are more than the 218 votes needed to pass reauthorization under normal procedures. What’s uncertain is whether the reauthorization will contain mild oversight provisions, and when the provisions will actually sunset. As Cato’s Julian Sanchez notes, there are two Democratic Senate versions that reauthorize these provisions for three years, but the Republican House version sunsets them until December 2011, while the Republican Senate proposal makes them permanent. Democratic Vermont Sen. Patrick Leahy’s  version of the bill would reign in Section 215 orders and provide some key oversight over the use of the widely abused National Security Letters, but those modest reforms were too much for Sen. Dianne Feinstein (D-Calif.), so she introduced an alternate bill without them.

The Republican House version places reauthorization right in the middle of presidential primary season, while the Democratic versions kick the can down the road three years. That means that we might be looking forward to the Republican candidates’ positions on the Patriot Act becoming an issue, which may lead to some irresponsible grandstanding about the necessity of passing the Patriot Act without any meaningful oversight. Remember “double Guantanamo?”

The News Out Of Stockholm

The Jawa Report:

Forbes:

STOCKHOLM — Two explosions shook central Stockholm on Saturday, killing one person and injuring two, rescue officials said.Police spokeswoman Petra Sjolander said a car exploded near Drottninggatan, a busy shopping street in the center of the city. Shortly afterward, a second explosion was heard higher up on the same street, and a man was found injured on the ground. He was later pronounced dead.

…”I saw some people crying, perhaps from the chock,” he said. “There was a man lying on the ground with blood coming out in the area of his belly, and with his personal belongings scattered around him.”

Gabiro said the blast was “quite loud” and he saw smoke coming from the area where the man was lying.

Few details except one familiar item. The vehicle was stuffed with gas canisters, which I take as propane cylinders and gasoline. Gee I wonder if anyone has tried that before?And it appears they wanted to blow up Christmas, excuse me, Cross Worshiping Shoppers.

Must have been those pesky Lutherans protesting the commercialization of Christmas?

Michelle Malkin:

They’re at it again. Cartoon jihadists hit Stockholm yesterday in a suicide bombing. Two innocent bystanders were injured; the jihadist died of stomach wounds. All for the pretextual crime of “insulting” Islam.

Lisa Lundquist at The Long War Journal:

Swedish police confirmed that the owner of the car used in the bombing has been identified as Taimour Abdulwahab, born Dec. 12, 1981; today would be his 29th birthday, according to Swedish journalist Per Gudmundson. The car was purchased as late as November of this year.

There was an R.I.P. page on Facebook for Abdulwahab, created earlier today, noting he “died an heros dead in Stockholm” on Dec. 11. Abdulwahab’s own Facebook page, which appeared under the nom de guerre “Taimour Al-Abdaly,” is replete with references to militant Islam and videos from Iraq and Chechnya, and listed “favorites” include “Islamic Caliphate State” and Sheikh Abu Muhammad al Maqdisi, the radical Jordanian cleric and mentor of Abu Musab al Zarqawi. Within the past few hours, both Facebook pages have been taken down.

One of the links on Abdulwahab’s Facebook page shows photos of him in what appears to be Jordan.

The warning emailed to Swedish authorities shortly before the bombing yesterday contained a request for forgiveness from the plotter’s family for deluding them about a recent trip to the Middle East; the trip was made for terrorist training purposes.

“I never went to the Middle East to work or earn money. I went there for Jihad,” he stated.

Jim Hoft at The Gateway Pundit:

Suspected Swedish bomber Taimour Abdulwahab Al-Abdaly used the Muslim dating site Muslima.com in his search for a second wife. (Daily Mail) The Swedish suicide bomber was a trained jihadist who was recently looking for a second wife.
He was a father of two young children.

Legal Insurrection

Aaron Goldstein at The American Spectator:

In an interview with the BBC, Swedish Prime Minister Fredrik Reinfeldt said he is “not sure” if e-mail threats sent minutes before two bombs exploded in downtown Stockholm are connected to yesterday’s bombing which killed the attacker and injured two civilians.

The threat stated in part, “Our actions will speak for themselves, as long as you do not stop your stupid war against Islam.”

While Prime Minister Reinfeldt (the leader of Sweden’s ostensibly conservative Moderate Party) might not be sure if the e-mail threat and subsequent bombings are connected, an Islamist website is very sure.  The website, Shumukh al-Islam, identified the bomber as Taimour Abdulwahib Al-Abdaly.  The jihadist forum referred to Al-Abdaly as “our brother” and indicated that Al-Abdaly had “carried out the martyrdom operation in Stockholm.”

The Daily Mail reports that Al-Abdaly was born in Iraq, had moved to Sweden nearly twenty years ago and had attended university in England.  The British daily also indicated that Al-Abdaly had a history of expressing jihadist sympathies posting videos concerning the War in Iraq, Chechnya and Guantanamo Bay.

mistermix:

How in the hell do you detonate a huge car bomb, and a suicide bomb, in the middle of a busy shopping area a couple of weeks before Christmas without killing anyone but yourself? I’m sure we’ll learn every little detail about the person who did this, and maybe there are more attacks to follow, but at the moment this looks like more confirmation of DougJ’s thesis that terrorism is for losers.

James Joyner:

We’ve been lucky in two respects.  First, most of the terrorist attacks in the West since the 9/11 attacks — now more than nine years ago — have been spectacularly inept.  Second, we’ve thus far been spared by the classical suicide bombers of the type that have plagued Israel for something like a quarter century.

Given that the security measures needed to defend against the latter are so onerous that they’re intolerable in a free society — indeed, a society which would tolerate them for more than the occasional high value target could not reasonably be described as “free” — it’s only a matter of time.

Bruce McQuain at Q and O:

As is obvious, people are out to kill Swedes and they don’t much care who it is that’s unlucky enough to be around the next bombing attempt (of course, the probability of being killed in a terror attack in the West is probably akin to the probability of being struck by lightning as it is – but it still scares people excessively.).

So … they can roll over, give up their liberty and freedom and someday see their children grow up in an oppressive culture that doesn’t value anything the Swedes value today.   Or Sweden can take a deep breath, hitch up its courage, declare real war on radical Islam and the killers it creates and sweep them from their country.  By doing so they can also serve notice that the dominant culture – Swedish culture – will remain as such and that those who’ve immigrated from other lands and other cultures can adapt to that culture or leave.  Here’s a basic truth that needs to be heeded: You cannot be tolerant with the intolerant.

When those who would kill you declare war on you as these killers have, you have two choices – fight the war or surrender.  You can’t decide not to participate.  It doesn’t work that way.  Hopefully Sweden will understand that and choose the former over the latter.

Moe Lane

The Pepto And The Dry Run

Richard Esposito, Christine Brouwer and Brian Ross at ABC News:

Two men taken off a Chicago-to-Amsterdam United Airlines flight in the Netherlands have been charged by Dutch police with “preparation of a terrorist attack,” U.S. law enforcement officials tell ABC News.

U.S. officials said the two appeared to be travelling with what were termed “mock bombs” in their luggage. “This was almost certainly a dry run, a test,” said one senior law enforcement official.

A spokesman for the Dutch public prosecutor, Ernst Koelman, confirmed the two men were arrested this morning and said “the investigation is ongoing.” He said the arrests were made “at the request of American authorities.”

Frank James at NPR:

NPR’s Carrie Johnson has a bit more information from law enforcement officials on the detention of the two men in Amsterdam from a United Airlines flight from Chicago:

“One of the men is from Yemen. Another man who joined him lives in the Detroit area.

Officials say the Yemeni man taped cell phones, watches and other items together in his suitcase. But that doesn’t necessarily mean he had a dangerous intent.

Under Dutch law, the men can be detained while the investigation continues.

She also passes along the following statement from U.S. law enforcement:

“Suspicious items were located in checked luggage associated with two passengers on United Flight 908 from Chicago O’Hare to Amsterdam last night. The items were not deemed to be dangerous in and of themselves, and as we share information with our international partners, Dutch authorities were notified of the suspicious items.  This matter continues to be under investigation.”

The Jawa Report:

The test involved traveling separately to Chicago’s O’Hare airport with a fake bomb or two in a suitcase (not to mention a box cutter and three large knives). The suitcase was then checked onto a flight to Dulles, with connecting flights to Dubai, and finally Yemen. The two suspects having met up at O’Hare, boarded a flight to Amsterdam instead. The luggage with the fake bombs was recovered at Dulles when it was realized that the suspect who checked it had not actually boarded the flight from Chicago to Dulles. The Chicago to Amsterdam flight being rather long, there was at least time to notify the Dutch who were happy to arrest the men upon landing. I assume the fly team has already been dispatched to Schiphol to collect these gentlemen and return them to the USA. The fake bombs were first discovered at the airport in Birmingham, where al-Soofi boarded his flight to O’Hare. He was allowed to proceed, suggesting either incompetence or brilliance on the part of federal officials – I’m not sure which. In addition to the objects in his luggage he was carrying $7,000 in cash and arrived at the airport wearing bulky clothing out of season…

John Schulenburg at Gateway Pundit:

What’s shocking about this is that before he even got to Chicago he was stopped in Alabama for “further screening” because of “bulky clothing” and then upon further investigation of his checked baggage, they found all sorts of shady things including 7 grand in cash,  a cell phone taped to a Pepto-Bismol bottle, three cell phones taped together, several watches taped together, a box cutter and three large knives.

Daniel Foster at The Corner

Weasel Zippers

Allah Pundit:

When they saw the cell phone taped to the Pepto Bismol bottle, did they … run a test to make sure it was Pepto in there or did they just wave it through? And if they were so concerned about the contents that him checking his luggage on one flight and boarding another in Chicago triggered a panic response, why on earth did they let him fly with that bag at all? It’s not like a jihadi would refuse to remotely detonate a suitcase in the cargo hold just because he’s aboard the same plane.

Basically, it sounds like this guy wanted to see just how many red flags he could send up and still be allowed to board an intercontinental flight. Answer: Quite a few, as it turns out. Which was also true of Flight 253, of course, another attempted terror attack that involved a bomber trained in … Yemen, the new number-one hot spot of international terrorism. Stay tuned.

UPDATE: Justin Elliott at Salon

“Top Secret America” Burning Up The Tubes

Dana Priest and William Arkin at WaPo:

The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.

These are some of the findings of a two-year investigation by The Washington Post that discovered what amounts to an alternative geography of the United States, a Top Secret America hidden from public view and lacking in thorough oversight. After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine.

The investigation’s other findings include:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.

* Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.

* Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year – a volume so large that many are routinely ignored.

These are not academic issues; lack of focus, not lack of resources, was at the heart of the Fort Hood shooting that left 13 dead, as well as the Christmas Day bomb attempt thwarted not by the thousands of analysts employed to find lone terrorists but by an alert airline passenger who saw smoke coming from his seatmate.

They are also issues that greatly concern some of the people in charge of the nation’s security.

“There has been so much growth since 9/11 that getting your arms around that – not just for the DNI [Director of National Intelligence], but for any individual, for the director of the CIA, for the secretary of defense – is a challenge,” Defense Secretary Robert M. Gates said in an interview with The Post last week.

In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials – called Super Users – have the ability to even know about all the department’s activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation’s most sensitive work.

Andrew Sullivan has a round-up

Spencer Ackerman and Noah Shachtman at Danger Room at Wired:

Figuring out exactly who’s cashing in on the post-9/11 boom in secret programs just got a whole lot easier.

U.S. spy agencies, the State Department and the White House had a collective panic attack Friday over a new Washington Post exposé on the intelligence-industrial complex. Reporters Dana Priest and William Arkin let it drop Monday morning.

It includes a searchable database cataloging what an estimated 854,000 employees and legions of contractors are apparently up to. Users can now to see just how much money these government agencies are spending and where those top secret contractors are located.

Check out the Post’s nine-page list of agencies and contractors involved in air and satellite observations, for instance. No wonder it scares the crap out of official Washington: It’s bound to provoke all sorts of questions — both from taxpayers wondering where their money goes and from U.S. adversaries looking to penetrate America’s spy complex.

But this piece is about much more than dollars. It’s about what used to be called the Garrison State — the impact on society of a praetorian class of war-focused elites. Priest and Arkin call it “Top Secret America,” and it’s so big and grown so fast, that it’s replicated the problem of disconnection within the intelligence agencies that facilitated America’s vulnerability to a terrorist attack.

With too many analysts and too many capabilities documenting too much, with too few filters in place to sort out the useful stuff or discover hidden connections, the information overload has become its own information blackout. “We consequently can’t effectively assess whether it is making us more safe,” a retired Army three-star general who recently assessed the system tells the reporters.

Julian Sanchez at Cato:

Intel-watchers have been waiting with bated breath for the launch of the Washington Post’s investigative series “Top Secret America,” the first installment of which appeared today, along with a searchable database showing the network of contractors doing top-secret work for the intelligence community. Despite the inevitable breathless warnings that the Post’s reporting would somehow compromise national security, there’s nothing online as yet to justify such fears, as even the Weekly Standard notes: The information was vetted by intel officials before being posted, and a good portion of it was already in the public domain, if not necessarily collated in such a convenient form.  Indeed, writers like Tim Shorrock, author of the invaluable Spies for Hire, have been reporting on the explosion of intelligence contracting for some time now—and in some instances the information you’ll find in Shorrock’s own contractor database is more usefully detailed than what the Post provides. None of this, to be clear, should at all diminish the enormous achievement of Dana Priest and William Arkin here: The real threat of their damning exposé should be to the job security of intelligence officials and contractors.  They paint a portrait of a sprawling intelligence-industrial complex drowning in data they’re unable to effectively process, and choked by redundancy

Gabriel Schoenfeld at The Weekly Standard:

The first installment of the Washington Post blockbuster, “Top Secret America,” by Dana Priest and William Arkin, two years in the making, is finally out today. It paints a surprisingly unsurprising picture of duplication and triplication in the intelligence world.

The story had provoked alarm among officials, and in some conservative quarters, that vital secrets would be spilled. “Is Wash Post harming intelligence work?” asked the Washington Times on Friday.  For its part, the Office of the Director of National Intelligence even put out a preemptive memo:  “We will want to minimize damage caused by unauthorized disclosure of sensitive and classified information. “

[…]

Indeed, it is hard to spot anything particularly damaging in the story. Its massive database and accompanying map of top-secret facilities in the United States, available on the Web, have been compiled from open-source material.

Leaks of highly classified information can pose a serious threat to our security. But in foreign policy reporting, leaks are also the coin of the realm.  Some of them pose no danger at all. Indeed, they are a principal channel by which the public is informed, which is why the  subject is so contentious.  In this particular instance, there does not even appear to have been a leak.  There is nothing top secret about “Top Secret America” (at least in its first installment). In this respect it is a case of false—and very smart—advertising.

Carol Platt Liebau at Townhall:

Priest intends the article to be scary, and to a certain degree, it certainly is. It’s a searing reminder of how much a “big government” is out of the control even of those who purport to run it.   Although the tone of the piece seems to intend the criticism to be directed toward “Top Secret America” (i.e., the post 9/11 security complex) — any thinking person will realize what the nub of the problem is, and that’s this: Government grows — always, always, always — because that’s the nature of government unless citizens are fortunate enough to have leaders who actually care about restraining it.

Peter Huessy at Big Government:

The Washington Post has published massive amounts of secret intelligence material in the interests, they say, of improving US national security. The two authors, Dana Priest and William Arkin, complain about a national security enterprise that has grown by leaps and bounds since 9/11. The reveal in detail the firms working for the US intelligence community including their location, contracts, and work subjects, whether border security, cyber-security or counter proliferation.

There are two common explanations for the story. First, it is juicy story. It has lots of secret information. And for two reporters, pursuing a Pulitzer Prize in journalism, well isn’t this what reporters do? The second explanation: their view is that the national security establishment represented by the $75 billion intelligence community and its network of firms, organizations and contractors is not serving the American people, that it is bloated, redundant and need of serious downsizing. But all, mind you, to make our security better.

There may be a third explanation. It may be they think little if any of this intelligence work is necessary. Nearly a decade ago, on October 12, 2002, William Arkin, the co-author of the article, spoke at the Naval War College. One key part of his talk is nearly identical to the thesis of the Post article.  He said: “More than 30 billion of our tax dollars each year go towards government generated intelligence information. We had, and have, a CIA and an intelligence community that has a fantastic history of failure, that is mostly blind to what is going on in the world, that seems to know nothing and at the same time is so bombarded and overwhelmed with stimuli from its millions of receptors it can hardly sense what is happening.”

Arkin goes on in his 2002 speech to blame America for the terrorist attacks of 9/11.  He says our military prowess forced our adversaries to use attacks against our vulnerable infrastructure, such as airplanes or trains because they could not successfully fight our military. And he says our support for Gulf autocracies and stationing troops there gave cause for the attacks of 9/11. The implied solution is very simple: stop supporting harsh regimes, withdraw our forces from the Gulf and terrorism disappears.

This underlying view of what we are supposedly facing permeates the Post story as well. They describe what they think this vast intelligence enterprise is trying to do: “defeating transnational violent extremists,” “fortify domestic defenses and to launch a global offensive against al-Qaeda,” and find “clues that lead to individuals and groups trying to harm the United States.”

Daniel Drezner:

I have one small quibble, however, which is with the “redundancy and waste” argument about multiple agencies doing the same work.  This is a standard argument in favor of rationalization, and it’s not always wrong.  It should be noted, however, that some redundancy is actually a good thing, particularly on an issue like counter-terrorism.

Say a single bureaucracy is tasked with intelligence gathering about threat X.  Let’s say this bureaucracy represents the best of the best of the best — the A-Team.  The A-Team does it’s job and catches 95% of the emergent threats from X.  That’s still 5% that is missed.

Now say you have another independent bureaucracy with a similar remit.  This agency is staffed by different people with their own set of blind spots.  Let’s even stipulate that we’re talking about the B-team here, and they’ll only catch 80% of the emergent threats from X.

If thesr two bureaucracies are working independently — and this is an important if — then the odds that a threat would go unobserved by both bureaucracies is .05*.2 = .01 = 1%.  So, by adding another bureaucracy, even a less competent one, the chances of an undetected threat getting through are cut from 5% to 1%.  That ain’t nothing.

Glenn Greenwald:

What’s most noteworthy about all of this is that the objective endlessly invoked for why we must acquiesce to all of this — National Security — is not only unfulfilled by “Top Secret America,” but actively subverted by it.  During the FISA debate of 2008 — when Democrats and Republicans joined together to legalize the Bush/Cheney warrantless eavesdropping program and vastly expand the NSA’s authority to spy on the communications of Americans without judicial oversight — it was constantly claimed that the Government must have greater domestic surveillance powers in order to Keep Us Safe.  Thus, anyone who opposed the new spying law was accused of excessively valuing privacy and civil liberties at the expense of what, we are always told, matters most:  Staying Safe.

But as I wrote many times back then — often by interviewing and otherwise citing House Intelligence Committee member Rush Holt, who has been making this point repeatedly — the more secret surveillance powers we vest in the Government, the more we allow the unchecked Surveillance State to grow, the more unsafe we become.  That’s because the public-private axis that is the Surveillance State already collects so much information about us, our activities and our communications — so indiscriminately and on such a vast scale — that it cannot possibly detect any actual national security threats.  NSA whistle blower Adrienne Kinne, when exposing NSA eavesdropping abuses, warned of what ABC News described as “the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack.”  As Kinne put it:

By casting the net so wide and continuing to collect on Americans and aid organizations, it’s almost like they’re making the haystack bigger and it’s harder to find that piece of information that might actually be useful to somebody.  You’re actually hurting our ability to effectively protect our national security.

The Government did not fail to detect the 9/11 attacks because it was unable to collect information relating to the plot.  It did collect exactly that, but because it surveilled so much information, it was incapable of recognizing what it possessed (“connecting the dots”).  Despite that, we have since then continuously expanded the Government’s surveillance powers.  Virtually every time the political class reveals some Scary New Event, it demands and obtains greater spying authorities (and, of course, more and more money).  And each time that happens, its ability to detect actually relevant threats diminishes.  As Priest and Arkin write:

The NSA sorts a fraction of those [1.7 billion e-mails, phone calls and other types of daily collected communications] into 70 separate databases. The same problem bedevils every other intelligence agency, none of which have enough analysts and translators for all this work.

The article details how ample information regarding alleged Ft. Hood shooter Nidal Hassan and attempted Christmas Day bomber Umar Abdulmutallab was collected but simply went unrecognized.  As a result, our vaunted Surveillance State failed to stop the former attack and it was only an alert airplane passenger who thwarted the latter.  So it isn’t that we keep sacrificing our privacy to an always-growing National Security State in exchange for greater security.  The opposite is true:  we keep sacrificing our privacy to the always-growing National Security State in exchange for less security.

Matthew Yglesias:

Beyond this, my main reaction is to think Glenn Greenwald draws too sharp a dichotomy between the view that Priest and Arkin are detailing a story of too much waste and inefficiency and the view that Priest and Arkin are detailing a story of “an out-of-control, privacy-destroying Surveillance State.” The point, as I see it, is that the one necessarily leads to the other. A surveillance state that sucks in everything creates an unmanageable flow of information. Pervasive secrecy makes coordination impossible. The scope and covert nature of the enterprise destroys accountability. In fact, it’s so unaccountable that even the people to whom it’s supposed to be accountable have no idea what’s going on:

In the Department of Defense, where more than two-thirds of the intelligence programs reside, only a handful of senior officials – called Super Users – have the ability to even know about all the department’s activities. But as two of the Super Users indicated in interviews, there is simply no way they can keep up with the nation’s most sensitive work.

“I’m not going to live long enough to be briefed on everything” was how one Super User put it. The other recounted that for his initial briefing, he was escorted into a tiny, dark room, seated at a small table and told he couldn’t take notes. Program after program began flashing on a screen, he said, until he yelled ”Stop!” in frustration.

You can’t possibly run an effective organization along these lines, and the idea that pouring even more hazily defined powers to surveil and torture people is going to improve things is daft. The potential for abuses in this system is tremendous, and the odds of overlooking whatever it is that’s important are overwhelming. Meanwhile, though it’s hardly the key point I note that for all the vast sums of resources poured into the national security state since 9/11, the US government’s foreign language capabilities remain absurdly limited. But it seems to me that just being able to talk to people (and read the newspaper, watch the news, etc.) in their native tongue would produce much more in the way of useful information than all the wiretapping in the world.

UPDATE: Henry Farrell and Daniel Drezner at Bloggingheads

Not-So-Sweet Charity

Erin Miller at SCOTUSBlog:

In Holder v. Humanitarian Law Project (08-1498; 09-89), the Court affirms in part, reverses in part, and remands on a 6-3 vote.  Chief Justice Roberts writes the Court’s opinion, while Justice Breyer dissents, joined by Justices Ginsburg and Sotomayor.

• Holding: The federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations.  The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment.
• Note: On the bench, Justice Breyer read from his dissent.

The full texts of the four opinions, and the briefs in the granted cases, appear after the jump.

American Constitution Society:

The Supreme Court, voting 6-3, upheld a federal law that bars “material support” of groups the government deems are terrorist organizations.  The Associated Press reports that the majority opinion, written by Chief Justice John Roberts, finds that the government “may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities.” Roberts wrote that the “material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.”In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government “has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens.”

The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.

Ed Morrissey:

Hamas would be one such example.  It conducts terrorist attacks against Israel with one part of its organization while running charitable endeavors with another.  Fundraising for Hamas to support its outreach programs would allow Hamas to use the money elsewhere, or even if the specific money was applied to the charitable work, it would allow Hamas to not have to dip into the charity funds for its terrorist activities.

That has long been accepted legal theory in the US, but until now it hasn’t been applied to non-monetary support.  It’s a murkier question, as “advice” is not a fungible commodity.  Assistance in building a proposal to the UN doesn’t translate into terrorist activity as easily as money does, mainly because it’s specific to the task.  However, the Supreme Court has wisely decided that the basic issue is one of terrorist intent on the organization as a whole, and not the subordinate intentions of its internal agencies.  Supporting a designated terrorist group in anything is in essence material support for terrorism.

Justice Stephen Breyer, the AP reports, read his dissent aloud in a show of frustration with the majority opinion, rather than just release the written brief.  Breyer was joined by Sonia Sotomayor and Ruth Bader Ginsburg, in what would be no great shock.  The report fails to mention that John Paul Stevens, soon to retire from the Court, joined the conservative majority on this question.  That seems rather newsworthy, and the AP’s failure to mention it seems equally newsworthy.

Jacob Sullum at Reason:

Today the Supreme Court upheld the federal ban on providing “material support” to groups identified as “foreign terrorist organizations” by the secretary of state. The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department’s list, to pursue their goals through nonviolent means. As described by the district court, the plaintiffs wanted to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,” “engage in political advocacy on behalf of Kurds who live in Turkey,” “teach PKK members how to petition various representative bodies such as the United Nations for relief,” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” The Supreme Court’s ruling (PDF) says the activists were correct to worry that such projects, though speech aimed at promoting lawful activities, would be considered “material support,” which includes the broad categories of “training,” “expert advice or assistance,” “personnel,” and “service.” But in the view of six justices, this restriction on freedom of speech is justified as part of the fight against terrorism. While not ruling out the possibility that future applications of the law might violate the First Amendment, the majority opinion by Chief Justice John Roberts says the Constitution allows Congress to criminalize the speech contemplated by the plaintiffs in this case, based on the premise that any assistance to terrorist groups, no matter its nature or aim, helps legitimize them and continue their violent activities.

Eugene Volokh:

Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them.

Speakers can also independently write newspaper editorials or op-eds praising the PKK and the LTTE, and arguing that they should be taken off the foreign terrorist organization list, or even be supported by the U.S. government. They can independently organize demonstrations making the same arguments. They can independently write academic papers making the same argument, or appear on television making it. Politicians and candidate for office can make the same arguments.

And all these things, both those coordinated with the groups (the first paragraph) and those done entirely independently will undermine “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.” The undermining will be indirect, and will happen through means such as increasing the groups’ perceived legitimacy, helping them acquire more resources to engage in terrorism, and letting them reroute their already-acquired resources to terrorism. (It might even embolden the groups to keep fighting, in the hopes that if they hold out long enough, the politicians who praise them might gain power and change American foreign policy in a way that supports the groups.) But as the Court pointed out in Holder v. Humanitarian Law Project, such indirect threats to the compelling government interest may nonetheless be real threats. Therefore, if one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.

But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”

If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest. The free speech rule there isn’t that the restriction is valid only if it passes strict scrutiny — it’s that the restriction is per se invalid. That’s the argument I make as to other restrictions in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997); and I think that the majority’s ruling in Holder v. Humanitarian Law Project is not inconsistent with that argument. To be sure, the majority doesn’t hold that a ban on independent advocacy would be unconstitutional even though such a ban might be necessary to serve a compelling government interest; it expressly reserves that question. But I think that the majority’s repeated stress that the law doesn’t restrict independent advocacy suggests that the Court would indeed strike down such a ban that applied to independent advocacy. And I think it would have to do that, if it takes seriously the importance of speech to democratic self-government (which I think the Court has indeed done in recent decades).

The Jawa Report:

Good on them! Now add IHH to the list, the so called Humanitarian aid group that sponsored, along with the backing of the Turkish Prime Minister, the Jihadi Flotilla of hate.

Digby:

The bottom line is that money is now considered equivalent to speech in more ways than just electioneering. If you believe that multi-national corporations are exercising a right to free speech by spending unlimited funds to influence elections to their benefit, then you would naturally assume that exercising your right to free speech to influence organizations is equivalent to giving them money. The consistent concept for this court isn’t free speech at all, it’s their belief that money equals speech. I don’t find this outcome surprising in the least. Once you make the leap then this is the logical outcome. And I would guess it won’t be the last time we see this.

Wikiarrest

Kevin Poulsen and Kim Zetter at Wired:

Federal officials have arrested an Army intelligence analyst who boasted of giving classified U.S. combat video and hundreds of thousands of classified State Department records to whistleblower site Wikileaks, Wired.com has learned.

SPC Bradley Manning, 22, of Potomac, Maryland, was stationed at Forward Operating Base Hammer, 40 miles east of Baghdad, where he was arrested nearly two weeks ago by the Army’s Criminal Investigation Division. A family member says he’s being held in custody in Kuwait, and has not been formally charged.

Manning was turned in late last month by a former computer hacker with whom he spoke online. In the course of their chats, Manning took credit for leaking a headline-making video of a helicopter attack that Wikileaks posted online in April. The video showed a deadly 2007 U.S. helicopter air strike in Baghdad that claimed the lives of several innocent civilians.

He said he also leaked three other items to Wikileaks: a separate video showing the notorious 2009 Garani air strike in Afghanistan that Wikileaks has previously acknowledged is in its possession; a classified Army document evaluating Wikileaks as a security threat, which the site posted in March; and a previously unreported breach consisting of 260,000 classified U.S. diplomatic cables that Manning described as exposing “almost criminal political back dealings.”

“Hillary Clinton, and several thousand diplomats around the world are going to have a heart attack when they wake up one morning, and find an entire repository of classified foreign policy is available, in searchable format, to the public,” Manning wrote.

Marc Ambinder:

How did Manning get caught? He bragged about his exploits to a reformed ‘Net hacker named Adrian Lamo, who is famous for turning himself in to to authorities after he hacked into the New York Times in 2004. Lamo, who goes by the Twitter handle @6, contacted the Army’s Criminal Investigative Division when Manning boasted to him that he had leaked more than 250,000 highly classified diplomatic cables to Wikileaks. That, Lamo felt, could seriously endanger national security.

After Wired posted its story, Lamo began to receive inquiries over Twitter. He responded with a series of Tweets acknowledging he played the snitch.

“I outed Manning as an alleged leaker out of duty.I would never out an Ordinary Decent Criminal. There’s a difference,” he said in one. “I’m heartsick for Manning and his family. I hope they can forgive me some day for doing what I felt had to be done.”

Jullian Assange, the founder of Wikileaks, responded with a furious barrage of Tweets a bit later in the evening. “If Brad Manning, 22, is the ‘Collateral Murder’ & Garani massacre whistleblower then, without a doubt, he’s a national hero.” He called Lamo and one of the journalists who wrote the story “notorious felons, informers and manipulators.” And allegations that “we have been sent 260,000 classified US embassy cables are, as far as we can tell, incorrect.”

Uncle Jimbo at Blackfive:

I love the fact that what this loser did was repulsive enough to convince a former computer hacker to turn him in. The worst security breaches always com from inside the network and now we have this fool giving away tons of info to a collection of left wing hacks with an anti-American agenda. Well done dipshit, you are gonna love Leavenworth.

Matthew Yglesias:

It’s really no surprise that the Army is interesting in arresting leakers, but it’s a reminder of what weak tea the notion that there can be no prosecutions of Bush administration officials because that would be “looking backwards” instead of forwards is. Investigatory agencies are always looking back, it’s just a question of what they look for. And under Barack Obama we’re basically looking at the things the permanent national security state wants looked into. An alternative investigation might focus not on who leaked classified video of a U.S. military operations, but on the question of why that sort of video should be classified. Certainly I can see why the Army might have preferred to keep it under wraps—in the eyes of many it reflected poorly on their conduct—but it hardly contained operational military secrets. In general, we expect things undertaken by America’s public servants in America’s name on America’s dime to be matters of public record. The security services have, however, largely managed to leverage the legitimate need for some level of operational secrecy into a fairly broad exemption of themselves from this basic principle.

Jim Hoft at Gateway Pundit:

As Confederate Yankee reported,

“In every instance cited above by Manning there are avenues to blow the whistle on corruption and illegality through channels that would bring wrongdoers to justice.”

But, instead Manning released the video to Wikileaks where they were doctored to smear our troops in Iraq.
What a loser.

Emptywheel at Firedoglake:

The military is likely to be most interested in learning how the encryption on the video(s) was broken–and whether Wikileaks allegedly got that from Manning or not. That, plus I would imagine they’re interested in breaking Wikileaks’ own code to prevent any further leaking. But if Manning’s telling stories about what he leaked to Wikileaks, it might mean he’s not the guy–or the only guy–who leaked this.

UPDATE: Glenn Greenwald

Adrian Chen at Gawker

The Lack Of Preparation And Focus On The Imminent Zombie Problem Is Disturbing

Max Fisher at The Atlantic with the round-up.

Josh Rogin at Foreign Policy:

In unveiling his first formal National Security Strategy Thursday, U.S. President Barack Obama called for “a strategy of national renewal and global leadership,” emphasizing U.S. economic strength as the foundation of American power and promising to deepen U.S. alliances and partnerships around the world.

The Cable has obtained the text of the 52-page document, which the White House is planning to roll out later today.

The NSS was the product of months of deliberation and consultation inside the administration. Its lead author is Ben Rhodes, the president’s lead foreign-policy speechwriter and a deputy national security advisor. It represents both a repudiation of some of the most controversial aspects of the Bush-era strategy and a continuation of many of its key elements.

The opening letter from President Obama begins with a call to arms:

“Time and again in our nation’s history, Americans have risen to meet — and to shape — moments of transition. This must be one of those moments,” it starts. “We live in a time of sweeping change. The success of free nations, open markets, an social progress in recent decades has accelerated globalization on an uprecedented scale.”

He then pivots sharply to the tense national security atmosphere and the war against Islamic extremism — though the word “Islamic” is no longer in the document, as the administration seeks to head off concerns that the United States is at war with the Muslim world:

“For nearly a decade, our nation has been at war with a far-reaching network of violence and hatred,” it reads. “Moreover, as we face multiple threats — from nations, non-state actors, and failed states — we will maintain the military superiority that has secured our country, and underpinned global security, for decades.”

Daniel Drezner:

Through the magic of the search function, here’s a short list of what’s hot and what’s not in the NSS:  Here are the number of mentions for the following words:

Russia:  12

China:  9

Europe:  7

Japan:  2

Brazil:  3

India:  7

Africa:  12

Israel:  9

Palestine:  1

Al Qa’ida:  21

North Korea:  3

Iran:  9

Iraq:  19

Afghanistan:  16

Pakistan:  11

nonproliferation: 13

terrorism:  14

pandemic:  7

volcano:  0

cyber:  11

Doha round:  1

zombies:  0

Peter Feaver at Foreign Policy:

The roll-out of President Obama’s National Security Strategy tries to frame the strategy as a repudiation of his predecessor’s. But the reality is that the new strategy is best characterized as “Bush Lite”, a slightly watered down but basically plausible remake of President Bush’s National Security Strategy. If you only read the Obama Team’s talking points, or only read the mainstream media coverage, which amounts to the same thing, this assessment may come as a big surprise. But if you actually read the Obama’s NSS released today, and President Bush’s most recent NSS released in 2006, the conclusion is pretty obvious.

• President Bush’s NSS emphasized effective, action-oriented multilateralism to address the challenges of the day: to “strengthen alliances to defeat global terrorism and work to prevent attacks against us and our friends” and to “develop agendas for cooperative action with the other main centers of global power.” Obama’s NSS emphasizes “comprehensive engagement” built on the “cornerstone” of our traditional allies but expanding outwards to include “more effective partnerships with other key centers of influence.”
• Bush’s NSS emphasized that our national security did not rest solely on material factors (eg., the balance of military forces) but also on the strength and appeal of our moral values, especially America’s commitment to defend and advance “human rights protected by democratic institutions.” Obama’s NSS makes the same point: “The United States rejects the false choice between the narrow pursuit of our interests and an endless campaign to impose our values.”
• Bush’s NSS recognized that international institutions were flawed but essential and thus needed to be reformed. Obama’s NSS makes the exact same point: “we need to be clear-eyed about the strengths and shortcomings of international institutions that were developed to deal with the challenges of an earlier time and the shortage of political will that has at times stymied the enforcement of international norms. Yet it would be destructive to both American national security and global security if the United States used the emergence of new challenges and the shortcomings of the international system as a reason to walk away from it. Instead, we must focus American engagement on strengthening international institutions and galvanizing the collective action that can serve common interests…”
• Bush’s NSS identified the most urgent threat to be the nexis of WMD proliferation (especially nuclear), terrorists, and state sponsors of terrorism. Obama’s NSS makes the same determination, “there is no greater threat to the American people than weapons of mass destruction, particularly the danger posed by the pursuit of nuclear weapons by violent extremists and their proliferation to additional states.”
• Bush recognized that the war on terror would require all elements of national power, from military to law enforcement to soft power, and Obama’s NSS makes the same point.
• Obama’s NSS even explicitly endorses America’s prerogatives to use military force well before it is a last resort — “While the use of force is sometimes necessary, we will exhaust other options before war whenever we can (emphasis added)” — and unilaterally — “The United States must reserve the right to act unilaterally if necessary to defend our nation and our interests.” (emphasis added)

Perhaps the most striking continuity is in the recognition that America must lead. This was an important theme of Bush’s NSS. Effective action depended on American leadership – “the international community is most engaged in such action when the United States leads.

Marc Lynch at Foreign Policy:

It’s an impressive document, and goes a long way towards providing a coherent framework for American foreign policy and national security which makes sense of what the administration has been doing and offers a roadmap to where it wants to go. From my perspective, the most interesting — and strongest — part of the NSS deals with the administration’s new approach to al-Qaeda. The most problematic is the gap between its strong commitment to civil liberties and the rule of law and its practice thus far with regard to things like drone strikes.

The NSS lays out “a comprehensive strategy” in what it repeatedly calls a war against al-Qaeda and its affiliates, one “that denies [al-Qaeda and its affiliates] safe haven, strengthens front-line partners, secures our homeland, pursues justice through durable legal approaches, and counters a bankrupt agenda of extremism and murder with an agenda of hope and opportunity.” It defines this in narrow terms: “this is not a global war against a tactic — terrorism or a religion — Islam. We are at war with a specific network, al-Qa’ida, and its terrorist affiliates.” It places this war within the perspective of broader foreign policy concerns, and warns against overreaction to terrorist provocations — pointing out, correctly, that al-Qaeda’s strategy hopes to trigger such American overreactions, leading to counterproductive political responses and interventions which drain our resources, alienate our friends, and radicalize Muslims around the world. Much of the NSS can be read as a multi-level, robust strategy to prevent such self-defeating responses, while doing everything actually necessary to disrupt and defeat the threat which actually exists.

Spencer Ackerman at Washington Independent:

There’s a certain caricature of Obama on the right that holds he only accepts American exceptionalism — the view that America has an outsize role to play in global affairs — in the sense that he finds America exceptionally blameworthy. The responsible exercise of U.S. foreign policy for Obama, goes this view, is to restrain it until it withers away. Charles Krauthammer offered that thesis. Mitt Romney put it in hardcover. Sarah Palin put it on Facebook. And it won’t go away with the National Security Strategy, because it was never tethered to reality. But the National Security Strategy demonstrates how it’s the exact opposite of what the Obama presidency is about.

Every single focus outlined in the National Security Strategy is about the maintenance of American power on the international stage in an era when the international order is less tethered to the traditional power of big alliances of states than ever, thanks to global financial destabilization, super-empowered individual extremists or proliferating nuclear weapons. American power, Obama argues, rests on insolvent foundations if it doesn’t invest in domestic priorities, principally “the long term growth of our economy and competitiveness of our citizens.” It won’t rally global actors to a common purpose if it doesn’t pursue “comprehensive engagement” with the world, predicated on the international institutions that represent and reflect the world’s forums for expression of consensus standards of behavior. And it won’t possess credibility if it violates “respect for universal values at home and around the world.”

That creates an interlocking series of obligations for implementing the strategy. “National security draws on the strength and resilience of our citizens, communities, and economy,” Obama argues, so that requires the maintenance and integration of not only military, diplomatic, development, intelligence and economic power, but also of domestic prosperity and justice. This is a blueprint for investing in health and education as much as it is a blueprint for investing in the military. When you think about it, how can you really separate the two? The military is worried about the security implications of the obesity epidemic, after all. This is a broad expansion of a military concept known as “interdependent capabilities,” where the assets within one service or branch or department can support and magnify those of others — applied across the government, and across governments.

Second, it requires a “a rules-based international system that can advance our own interests by serving mutual interests. International institutions must be more effective and representative of the diffusion of influence in the 21st century. Nations must have incentives to behave responsibly, or be isolated when they do not.” International power isn’t a “zero-sum game,” Obama argues — a central refutation of Bush’s insistence that the U.S. ought to never allow a new superpower to develop — with one major conceptual exception. Isolated nations and actors really do face zero-sum situations against an international community united around common norms. And that’s how Obama argues American leadership can marshal institutions for common objectives over the long term.

Eli Lake at The Washington Times, before the release, on John Brennan’s speech about the NSS:

The new strategy, according to Mr. Brennan, will continue the George W. Bush administration strategy of seeking to distinguish al Qaeda terrorism from the religion of Islam. Mr. Brennan specifically said the Obama administration would no longer use the terms “Islamist” and “jihadist” “because jihad is holy struggle, a legitimate tenet of Islam, meaning to purify oneself or one’s community.”

At the same time, the new strategy states that the United States remains on a war footing against al Qaeda and seeks to destroy the group and its affiliates, Mr. Brennan said. He further noted that the group behind the Sept. 11 attacks is different from other Muslim terrorist groups that might have local grievances.

The emphasis on homegrown radicals reflects the recent trend of attacks and attempted attacks in the United States by U.S. citizens or residents who were inspired to wage terrorism as a result of information posted on the Internet.

The latest such attempt was purportedly made by Faisal Shahzad, a Pakistan-born naturalized American arrested in connection with an unsuccessful attempt to detonate a homemade car bomb in New York City’s Times Square.

Andrew Exum:

In summary, I would have liked to have seen a more ruthless prioritization of efforts. If I were a reporter working the national security beat and could ask Sec. Clinton just one question today, my question would be, “Madam Secretary, this strategy lays out some very ambitious goals for the United States. But if we could only do three of the things on the list of activities, what would they be? What, in other words, are this nation’s top priorities in national security — whereby if we get other stuff wrong but get these specific things right, we can sleep soundly at night?”

UPDATE: A couple of my friends have written some good dissenting opinions in reply to my comments. The first objection (written by my officemate, the GZA aka The Genius, and soon-to-be-posted in full on Tom’s blog) is basically, “Exum, as usual, you’re complaining too much. The NSS is not meant to match ends, ways and means. It is intended to outline the broader way in which the administration thinks about the contemporary security environment. The NSS can’t allot resources because we have this thing called the legislative branch — you may have heard of it? — which does that. The QDR and QDDR are the documents that should then identify ends, ways and means.”

My response to that is, uh, first off, the QDR preceded the NSS. Which, we can all agree, is as f***ed up as a football bat. Also, the QDR also punted on setting priorities, something that has frustrated both allies with whom I have spoken as well as key legislators. (See, Abe! I am aware of the Congress!) I will note my major complaint about all of this, though, after I cover the second objection.

The second objection is that these kinds of “strategies” are really just long political speeches focused on national security. There is a little in there for everyone, and everyone’s activities and opinions are at least acknowledged if not promoted. The document is, at the end of the day, intended more for external consumption than for internal use.

The problem with this is the internal leadership vacuum that results. Like it or not, people in the Departments of Defense, National Intelligence and State — not to mention USAID and the combatant commands — will refer back to this document to justify their programs and budget requests before both the administration and the Congress. And who can blame them? It’s an official document signed off on by POTUS himself. All of those good progressive voices who fret the military has too much power and is dictating strategy from below need to take note here: when you produce something-for-everyone documents like this NSS and the QDR which do not set firm priorities, you’re essentially asking departments and commanders below you in the food chain to set their own priorities. Or, at best, you are forcing them to constantly be seeking guidance as to what your true priorities are.

I may be asking for too much — I don’t know. But both the QDR and this NSS strike me as thoughtful, intelligent, comprehensive and … kinda empty. Because these documents do not establish clear priorities or recommendations, I am left studying the budget like everyone else for clues as to what the U.S. government’s real priorities are for national security.

UPDATE: More Drezner

The Code Name For This Blog Post Is Guacamole

Mark Mazzetti at NYT:

The top American commander in the Middle East has ordered a broad expansion of clandestine military activity in an effort to disrupt militant groups or counter threats in Iran, Saudi Arabia, Somalia and other countries in the region, according to defense officials and military documents.

The secret directive, signed in September by Gen. David H. Petraeus, authorizes the sending of American Special Operations troops to both friendly and hostile nations in the Middle East, Central Asia and the Horn of Africa to gather intelligence and build ties with local forces. Officials said the order also permits reconnaissance that could pave the way for possible military strikes in Iran if tensions over its nuclear ambitions escalate.

While the Bush administration had approved some clandestine military activities far from designated war zones, the new order is intended to make such efforts more systematic and long term, officials said. Its goals are to build networks that could “penetrate, disrupt, defeat or destroy” Al Qaeda and other militant groups, as well as to “prepare the environment” for future attacks by American or local military forces, the document said. The order, however, does not appear to authorize offensive strikes in any specific countries.

In broadening its secret activities, the United States military has also sought in recent years to break its dependence on the Central Intelligence Agency and other spy agencies for information in countries without a significant American troop presence.

Marc Ambinder:

The Times did not report its original classified codename, “Avocado.” The name has since been changed.

Other “ex-ords” signed by combatant commanders include provisions for secret American bases and operations in countries like Georgia, Turkey, Azerbaijan, Uzbekistan and in the Dagestan region of the North Caucuses. In the latter space, U.S. soldiers were tasked with tracking down members of identified separatist groups with loose ties to Al Qaeda. One of those groups was responsible for the March 31 bombings in Kizlyar, according to American intelligence officials.

The Obama administration had been reluctant to allow such an expansion of nontraditional military activities in countries where the U.S. formally has no presence. That practice was unfavorably associated with the Bush-Cheney administration’s disregard for international norms.

But political imperatives, the threat of terrorism, and the knowledge of what the U.S. military can accomplish if its strings are cut away has slowly changed the minds of some of Obama’s senior advisers. It is helpful that Congress has generally given the military a wide berth to conduct activities that intelligence agency paramilitaries would find objectionable.

Spencer Ackerman at The Washington Independent:

Petraeus’ spokesman declined comment. But if that’s faithfully reported, it sounds a lot like uniformed personnel could assume civilian cover for intelligence purposes. And that carries the non-trivial risk of unaffiliated businesspeople or academics or journalists or tourists in the Middle East or South Asia being presumed to be spies — and, hence, targets — by local security forces or extremists. Foreign allied governments in the region might also not like the U.S. sponsoring “local indigenous groups” that might destabilize their countries or threaten their rule.

Kenneth Anderson:

The document does not authorize any offensive use of force activities; the purposes are apparently intelligence-gathering and relationship building, in friendly and hostile countries.   Contingency plans related to thwarting expansion of terrorist networks as safe havens in AfPak and, presumably, Yemen are disrupted to other lightly governed or hostile places such as Somalia or Iran are important; likewise contingency plans around Iran nuclear weapons acquisition.   Of particular interest, beyond the news report itself, is the article’s discussion of the relationship between “clandestine” military activities and “covert” CIA actions (the statutory definition of “covert” for purposes of the intelligence community is found at USC Title 50, 413(b)(e)).  According to the article:

The order … calls for clandestine activities that “cannot or will not be accomplished” by conventional military operations or “interagency activities,” a reference to American spy agencies …  Unlike covert actions undertaken by the C.I.A., such clandestine activity does not require the president’s approval or regular reports to Congress, although Pentagon officials have said that any significant ventures are cleared through the National Security Council. Special Operations troops have already been sent into a number of countries to carry out reconnaissance missions, including operations to gather intelligence about airstrips and bridges.

One of the assumptions many people seem to have is that the military is more accountable than the CIA in such activities.  I’m not suggesting any problem with the activities described in this article by the military — far from it — but as the article says, these clandestine activities do not require the regular covert action accountability mechanisms required of the CIA as a matter of law, although NSC is involved in anything significant.

However, as these activities get closer to, well, “spying” in the traditional sense, then the line between clandestine and covert risks becoming blurred.  Besides the statutory definition of covert, the term also refers to the fact that US military personnel, even though acting clandestinely, will be acknowledged by the US if taken prisoner and it will demand Geneva III treatment for them.  But the article says that many in the military “are also concerned that as American troops assume roles far from traditional combat, they would be at risk of being treated as spies if captured and denied the Geneva Convention protections afforded military detainees.”

CIA civilian operatives do not have that assurance of being avowed, and of course in many circumstances — though not all, because covert refers to many things beyond the use of force, including information and disinformation activities, things that are not necessarily illegal under a country’s local law — their activities will be illegal espionage, and in other more extreme cases murder under local law.  This is the whole issue of NOC.  (BTW, there is a fun and useful FAQs page at the CIA’s website that covers a number of questions both policy and practical, including internship opportunities at the CIA.)  Here is what the CIA itself tells the public about covert action on its web page (emphasis added):

7. Who decides when CIA should participate in covert actions, and why?

Only the president can direct the CIA to undertake a covert action. Such actions usually are recommended by the National Security Council (NSC). Covert actions are considered when the NSC judges that US foreign policy objectives may not be fully realized by normal diplomatic means and when military action is deemed to be too extreme an option. Therefore, the Agency may be directed to conduct a special activity abroad in support of foreign policy where the role of the US government is neither apparent nor publicly acknowledged. Once tasked, the intelligence oversight committees of the Congress must be notified.

These activities are not illegal under US law, of course, provided that the requirements of the different services — the military or the civilian agencies — are followed, including required accountability and oversight.  Nor are they illegal, in my view, under international law; state practice by a wide variety of states has sanctioned espionage, up to and including uses of force illegal under the local law of the sovereign, so widely and for so long that the rule would have to be something like, “liable under local sovereign law but not contrary to international law,” including uses of force if they are correctly described as “self-defense.”

However, as a matter of US policy, the divisions between the various services matter over the long run, and so there are important questions as to the proper division of roles.  Many people in the international law community — believing that all lawful use of force divide into law enforcement and armed conflict — naturally believe that as domestic law and policy, the CIA should not have a role in using force.  As I remarked in a second round of Congressional hearings a few weeks ago on drone warfare (I’ll post this soon to SSRN), states have not generally found that the best solution to real-world problems.  States want, and in my view of international law, have plainly preserved, the ability to use covert force and preserve deniability and indeed in an extreme situation disavow the civilian agent.  It appears to many states an important security capability, including the United States.

On another hand, there are real questions as to whether — as a matter of policy, not law — the CIA is the right agency to conduct what increasingly looks to amount to a parallel conventional war using drones in Pakistan, not in a pure counterterrorism strategy, but really in support of the conventional war by Pakistan against the Pakistan Taliban.  As a matter of internal US division of labor, there are policy (again, not legal) questions as to whether the CIA should be engaged in overt conventional war, or something starting to approach that.  Yet the real world constraint — trumping, it would appear up to this point and probably for quite some time — is Pakistan’s desire to have a fig leaf of deniability as to a US military role.

Conversely, as the Mazzetti article signaled there are important questions as to whether it is a good idea to have the US military expanding further into clandestine, secret — covert, in the vernacular, not legal term-of-art, sense — operations.  As I said, in some important respects, civilian oversight and accountability is stronger regarding the CIA — although I believe that in any case, the rise of new technologies such as smaller and smaller drones that allow for still more discrete uses of force argue for a review and revamping of oversight and accountability.

Uncle Jimbo at Blackfive:

Once again the NY Times is announcing a covert program to the world. The problem for us and anyone actually interested in vigorously prosecuting the overseas contingency operation to eliminate man-caused disasters is that there are those in DoD and other government agencies who don’t want us to. So when something happens that offends their delicate sensibilities they call the NYT who has proven they value anything that can draw attention to their dying rag more than they do our national security.

[…]

Publishing this is disgraceful and now has given ammunition to the most dangerous regime on Earth as they avoid sanctions and take the last few steps to become the least stable nuclear power on Earth. Well done you worthless scum. Just what is the justification for releasing this extremely sensitive information? There is no indication any laws are being broken by the military. There is simply disagreement about a policy. That does not and should not justify exposing classified information and endangering our operators in the field

Emptywheel at Firedoglake:

And to a detail Jeremy Scahill pointed out via Twitter this morning.

interesting that the Petraeus directive for Junc-WTF is exactly what Erik Prince discussed in January

Scahill’s talking, of course, of the big Vanity Fair piece in which Prince revealed that Blackwater had been tasked with just the kind of mission that JUnc-WTF envisions.

That’s the background, then, against which the military continues to build permanent prisons–at which we continue the abuse Cheney instituted–in Afghanistan and Obama prepares to ask Congress for more money to support the seemingly endless war there.

Video Killed The JihadTube Star

Maamoun Youssef at The Associated Press:

A U.S.-born cleric who has encouraged Muslims to kill American soldiers called for the killing of U.S. civilians in his first video released by a Yemeni offshoot of al-Qaida, providing the most overt link yet between the radical preacher and the terror group.

Dressed in a white Yemeni robe, turban and with a traditional jambiyah dagger tucked into his waistband, Anwar Al-Awlaki used the 45-minute video posted Sunday to justify civilian deaths — and encourage them — by accusing the United States of intentionally killing a million Muslim civilians in Iraq, Afghanistan and elsewhere.

American civilians are to blame, he said, because “the American people, in general, are taking part in this and they elected this administration and they are financing the war.”

“Those who might be killed in a plane are merely a drop of water in a sea,” he said in the video in response to a question about Muslim groups that disapproved of the airliner plot because it targeted civilians.

Al-Awlaki, who was born in New Mexico and is believed to be hiding in his parents’ native Yemen, has used his personal website to encourage Muslims around the world to kill U.S. troops in Iraq.

The Jawa Report:

Jihadist forums, such as this one, announced the AQAP (alQaeda in the Arabic Pennisula) release of Awlaki interview, gave download links and voila it’s on JihadTube. Then on to embedding on websites such as this one.

Same ole kill stuff & praise for those doing the attempted/killing. It’s in Arabic but never fear, someone will translate it soon.(Video with English subtitles)

[…]”Those who might be killed in a plane are merely a drop of water in a sea,” he said in the video in response to a question about Muslim groups that disapproved of the airliner plot because it targeted civilians. Al-Awlaki used the 45-minute video to justify civilian deaths — and encourage them — by accusing the United States of intentionally killing a million Muslim civilians in Iraq, Afghanistan and elsewhere.

American civilians are to blame, he said, because “the American people, in general, are taking part in this and they elected this administration and they are financing the war.”

He added that the Prophet Muhammad also sent forces into battles that claimed civilian lives.[Trying to smooth things over – Mo ordained it so it’s OK…ed]

The video was produced by the media arm of al-Qaida in the Arabian Peninsula, though the exact nature of al-Awlaki’s ties with the group and possible direct role in it are unclear. The U.S. says he is an active participant in the group, though members of his tribe have denied that. [It’s called Taqiyya ― Islamic Principle of Lying for the Sake of Allah]

For its part, al-Qaida appears to be trying to make use of his recruiting power by putting him in its videos. Its media arm said Sunday’s video was its first interview with the cleric.

Splode him already.

Jules Crittenden:

Awlaki’s the guy who preached to 9/11 plotters and inspired Maj. Nidal Hasan. Now he’s rationalizing the murder of civilians. There’s the usual tired canard about the infidels killing Muslims. Come on. Al-Qaeda and its assorted offshoots have killed thousands more Muslim civilians on purpose than the U.S. has ever killed in accidents of war, or through war-crime incidents engineered by the Taliban, etal. Go to Iraq and Afghanistan. They’ll tell you.

Thomas Joscelyn at The Weekly Standard:

The Obama administration has rightly decided to target Awlaki inside Yemen, authorizing military and intelligence officials to kill the cleric if given the opportunity. But the administration should also declassify and release Awlaki’s emails with the Fort Hood Shooter, as well as any other threads of evidence that have been missed. Those bits of intelligence that are still highly sensitive because they deal with current operations can be redacted.

But the American people deserve to see the evidence that their counterterrorism officials have repeatedly failed to understand.

Ben Geman at The Hill:

White House Press Secretary Robert Gibbs said the U.S. is hunting for American-born Yemeni cleric Anwar al-Awlaki, who called for killing U.S. civilians in a new video released Sunday.

“We are actively trying to find him and many others throughout the world that seek to do our country and to do our interests great harm,” Gibbs said Sunday on CBS’s “Face the Nation.”

The U.S. has authorized operations to kill or capture al-Awlaki, according to press reports last month. Gibbs said Sunday that al-Awlaki “supports al-Qaeda’s agenda of murder and violence.”

And These Visions Of Miranda That Conquer My Mind

Max Fisher at The Atlantic:

Naturalized American citizen Faisal Shahzad, arrested late last night for the failed car bomb in Times Square, is in U.S. custody. Should he be read his Miranda rights? The question has a complicated recent history in U.S. policy.

In December, the Nigerian Umar Farouk Abdulmutallab was Mirandized after his failed attempt to blow up a U.S. flight, which provoked outrage among some Republican legislators. Critics insisted that the Miranda reading made Abdulmutallab less likely to share intelligence, although administration officials say he continued speaking openly. The current rift among some conservatives over Shahzad’s Miranda rights reveals a tension within the party between two core issues: Civil liberties, which is emphasized by those saying Shahzad’s rights as a citizen must be respected, and national security, which some Republicans say is better served by not Mirandizing.

Conservatives For Mirandizing

Glenn Beck: Read Him His Rights On Fox & Friends, Glenn Beck said, “He’s a citizen of the United States, so I say we uphold the laws and the Constitution on citizens.” Fox New’s Brian Kilmeade pushed back, calling Shahzad “a threat to the country.” Beck sighed, “So are a lot of citizens. If you’re a citizen, you obey the law and follow the Constitution. He has all the rights, under the Constitution.” He added, “We don’t shred the Constitution when it’s popular. We do the right thing.” Kilmeade suggested that Beck’s approach could risk the lives of his family.

[…]

• Sen. John McCain: ‘Serious Mistake’ Appearing on the radio show Imus In The Morning, McCain warned, “Obviously that would be a serious mistake…at least until we find out as much information we have. … Don’t give this guy his Miranda rights until we find out what it’s all about.”

• Rep. Peter King: Should Have Talked to Intelligence Community First The New York Republican worries, “Did they Mirandize him? I know he’s an American citizen but still. … I hope that if they did read him his rights and if they are going for an indictment as opposed to a tribunal that he did discuss it with the Director of National Intelligence, the Central Intelligence Agency, all the component parts of the intelligence community.”

• Sen. Joe Lieberman: Remove His Citizenship Appearing on Fox News, the Connecticut Independent suggested a process to strip “American citizens who choose to become affiliated with foreign terrorists” of their U.S. citizenship, which would presumable include their Miranda rights. He asked “whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.”

Mark Kleiman:

John McCain, who might have been elected President last year, thinks that according American citizens their constitutional rights is a “terrible mistake.” Presumably he still thinks so despite the fact that Faisal Sharad, after being given the Miranda warnings, promptly spilled his guts. Not merely did he confess, he apparently gave up the names of at least eight associates who have now been arrested by Pakistani police.

The fervent desire on the extreme right wing – which is to say, at the center of the Republican Party – to allow terrorists to bluff us out of our way of life ought to seem puzzling. The world is full of third-world dictatorships where the secret police get to hold enemies of the state incommunicado and torture them. I have no desire to live in such a place. If John McCain’s tastes are different, no doubt Saudi Arabia would be delighted to have him as a subject.

Steve Benen:

Look, I know McCain’s in a tough primary and has to prove himself to the far-right, but this Miranda-related demagoguery is growing stale.

Najibullah Zazi was Mirandized, and the entire case went beautifully. Umar Farouk Abdulmutallab was Mirandized, and the results have been excellent. When shoe bomber Richard Reid was taken into custody, the Bush/Cheney administration read him his rights five minutes after he was taken off the plane he tried to blow up, and McCain never said a word. It’s been standard practice, especially with American citizens upon their arrest, for years — spanning administrations of both parties.

Can’t McCain just let the grown-ups do what they do without offering suggestions from the peanut gallery? The Joint Terrorism Task Force caught the suspect 48 hours after the attempted bombing; the frequently-confused Arizonan should probably trust them to know how best to proceed.

John Cole:

“I hope that [Attorney General Eric] Holder did discuss this with the intelligence community. If they believe they got enough from him, how much more should they get? Did they Mirandize him? I know he’s an American citizen but still,” King told POLITICO.

“I know he’s and American citizen, but still” really says it all, doesn’t it?

Half our political leadership wants a banana Republic, and our media is just treating it like it is another opinion. At what point do we start calling these people what they are?

And I just don’ know what to say about the obviously insane John McCain. You would think that someone who spent half a decade in a cage with no rights whatsoever in the defense of this nation and our laws and legal tradition and way of life, would have the slightest bit of respect for the rule of law. You would, of course, be wrong.

Moe Lane at Redstate:

Anyway, this isn’t a case of a non-citizen captured overseas as an illegal combatant, or even one of a non-citizen captured here: there are existing Constitutional mechanisms in place. Including this one:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Of course, that assumes that this administration will seek to have this man charged and tried with what is unambiguously a capital crime. I leave it to the reader to contemplate the implications of a refusal to do so.

Ed Morrissey:

Shahzad is an American citizen, arrested by law enforcement in America. As a US citizen, Shahzad has the right to remain silent. In that sense, he differs from the EunuchBomber, who attempted to enter the country (our airspace) to conduct a sabotage mission for an enemy of the US. Ambdulmuttalab should have immediately been taken into custody by military and intelligence agencies, not the FBI, in order to make his status as an enemy combatant clear.

Rick Moran:

First of all, it is never a “mistake” to follow the law. Mr Shahzad is an American citizen, and even if he had murdered thousands, he would still be entitled to the protections guaranteed under our Constitution.

And yet, this is one instance where the “ticking bomb” scenario might very well be a reality. Newsweek reports there may be a connection between Shahzad and the Pakistani Taliban leader Hakimullah Mehsud:

A prominent expert on Jihadist media says there is an apparent link between the new video message in which Pakistani Taliban leader Hakimullah Mehsud, once thought to have been killed, proclaims he is still alive, and a message posted overnight Saturday in which the Pakistani Taliban appears to claim credit for the failed Times Square car bomb attack.

Rita Katz, founder of the Site Intelligence Group, a private organization that monitors and translates extremist Web postings, late on Monday outlined a timeline her organization put together that suggests that the Hakimullah video and the U.S. attack claim were both posted, at least on some sites, by the same person or persons.

Terrorists are notoriously full of bombast but just for the record, Meshud made some bloodthirsty threats toward America in his latest video:

In the videos, Hakimullah Mehsud vows attacks on U.S. cities, which he says his suicide bombers have penetrated. The videos provide the first solid evidence that he survived the missile strike, and they come after the Pakistani Taliban’s widely dismissed claim of responsibility for the failed attack in New York’s Times Square. In that case, authorities were zeroing in on a naturalized U.S. citizen from Pakistan. A suspect was arrested late Monday, though reports of his ties to extremist groups in Pakistan could not be substantiated.

Might there be other terrorists in other major American cities waiting to strike as I write this? And would that be a good enough excuse for the government to arbitrarily waive Mr. Shahzad’s Constitutional rights, designate him an “enemy combatant,” and interrogate him using all legal means at our disposal (I take it as a given that President Obama has rejected “enhanced interrogation” as an option)?

For some on both sides of the argument, this is an easy question to answer in the affirmative or negative. However, knee jerk ideological reactions from civil liberties absolutists or bloodthirsty right wingers are just not good enough in this situation.

The threat is real and immediate. Hundreds – perhaps thousands – of American lives may be at stake. Wouldn’t it be easier just to forget the Constitution in this one instance and treat this terrorist as the enemy he himself claims to be?

It would be easier. But would it be the right thing to do? I daresay if there is another terrorist attack – this one successful – and we followed the law to the letter by allowing the suspect to remain silent despite the fact that it is later revealed he could have given us information that would have stopped the attack, the political ramifications would be severe. And the fact that our police obeyed the Constitution would give cold comfort to the families of those who lost a loved on in a preventable attack.

It’s an easy choice – unless you lose someone because of that choice. Then it becomes a little more complicated, yes? Or, on the other side of the coin, if Mr. Shahzad knows nothing of any other attacks and precious little about his overseas connections, violating his constitutional rights would be seen as dramatic overkill. The law would have been violated for, what in retrospect, would be seen as no good reason.

You might argue that postulating outcomes is a fool’s game and that holding fast to Constitutional principles or making the exception in Shahzad’s case is a decision for the moment and no thought should be given to relative consequences. I disagree. This decision would be all about “relevant consequences.” If we violate the suspect’s Constitutional rights and the information we are able to wean out of him prevents an attack, is that justification for tossing the Constitution aside? Or if he has no information relevant to accomplices or other plots, must we automatically assume that what was done was a travesty?

Herein lies the conundrum over Mirandizing Shahzad. Whether we do or don’t, our actions will have profound consequences.  Even if no other terrorist attacks are being planned, finding that out is almost as important as discovering another plot to kill Americans. And as with any other decisions made by policymakers, the potential harm must be weighed against any positive outcome to their actions.

James Joyner:

First off, we can’t designate American citizens as “enemy combatants.”  The Supreme Court has made that quite clear, in case it wasn’t absolutely obvious upon reading the Bill of Rights.  Second, while the Constitution isn’t a suicide pact, it is supposed to limit government’s powers over its citizens.  Rule of law and all that.   Third, lest we forget, Shahzad is merely accused of a crime.   The government not infrequently accuses the wrong people.  Even, it turns out, for terrorism.

Now, I suppose, if the president or the attorney general felt strongly enough about the matter, they could order their subordinates to flout the law.  But that would mean that Shahzad would be much harder to jail.  And it would mean possible criminal charges against those ordering the unconstitutional acts and those carrying out those unlawful orders.

But let’s be clear:  Just as I didn’t trust President Bush, for whom I voted twice, to decide when to deprive citizens of their rights, I don’t trust his successor.  And neither should you.   That is, after all, the very definition of absolute power.  And we all know what that does.

UPDATE: John McCormack at The Weekly Standard

Marc Thiessen at The American Enterprise Institute

Conor Friedersdorf on Thiessen

UPDATE #2: Orin Kerr

UPDATE #3: Ramesh Ponnuru at The Corner

Andy McCarthy at The Corner

More Ponnuru at The Corner

Matthew Yglesias