Flit

Alien Acts then and now

The new U.S. Torture act is probably most similar historically to the 1798 Alien and Alien Enemies Acts, passed by John Adams, which gave the government the power to deport any alien (non-citizen) considered dangerous from the United States, in peace (Alien Act) or open war with their home country (Alien Enemies Act).

One difference is the peacetime provisions found in the Alien Act had a two-year expiry date on them, while the wartime restrictions did not. Their expiry in 1800 coincided with the peaceful termination of the undeclared Quasi-War with France which had led to their enactment in the first place.

Another difference is that the Alien Act, unlike the more controversial Sedition Act with which they are frequently associated, never appears to have resulted in any actual imprisonments or deportations. (The Alien Enemies Act remains in force today, now known as 50 USC Sections 21-24.)

Due to the new provisions for indefinite imprisonment, combined with the lack of an expiry date and the fact that some hundreds of people are already known to be affected by the withdrawal of any habeas recourse, it's fair to say that the current Torture Bill's provisions are more severe than those passed against resident aliens by the Adams government in the 1798 Alien Act.

UPDATE: Faithful reader Joe B. points out that the above should have read "signed by John Adams." The Alien and Sedition acts had their roots in Congress, specifically the Hamiltonian wing of the Federalist Party, not the Adams administration itself. As Joe writes, the original post "repeats a mistake often made by people used to parliamentary government" of assigning responsibility for all laws enacted to the current executive.

We're all Arars now

Commentary on the U.S. Torture Bill was so scattershot this week, I eventually gave up and read the darn thing myself. Here's the one big upshot, from a Canadian perspective, and the headline that should have been in Canadian papers all this week: foreign nationals and non-citizen residents taken into U.S. military or CIA custody will, once this bill is signed, have no resort to habeas corpus (the right to be brought before a judge)... more or less allowing their indefinite detention without charge, unless their home government were to strenuously intervene (or American authorities concluded they were utterly innocent and without intelligence value, which doesn't seem to be happening as often or as promptly as it should in most cases)*. Because the new act also declines to in any way limit American claims of their right to seize and hold those they believe are supporters of terrorism anywhere, including in the U.S., this is not just an issue of concern to Afghans and Iraqis, either.

This obviously has to be taken into consideration from now on by any Canadian citizen living in or visiting the United States, or for that matter any other nation with lax extradition procedures to that country. Moving to, or travelling in or through the United States, if you have any reason to believe you might be a subject for U.S. security service scrutiny, would appear to be even less wise now than it was before.

What it does mean is that the Maher Arar case will likely never happen again, but not for the reasons one might have hoped. Had this act been in place in 2002, the U.S. would have been fully within its rights to put Arar on indefinite ice in Guantanamo, and pursue his interrogation using their own methods there, rather than render him to Syria to be interrogated. Future Arars will undoubtedly receive this treatment instead: probably an improvement over a Syrian dungeon, but still a shattered life.

The long-term upshot of this, combined with the recent Arar inquiry, will, sooner or later, be a significant tightening of restrictions on Canadian intelligence and security services from sharing information with their American counterparts about Canadian citizens. In the Globe today, John Ibbotson bemoans the chilling effect the Arar inquiry will have on cross-border intelligence-sharing. The fact that he doesn't even mention the more chilling effect of the simultaneous passing of the Torture Bill is hardly a credit to him or his paper. The risk of another intelligence-sharing lapse leading to another innocent Canadian stuck in Guantanamo is too high to be ignored this way, and it seems certain that eventually the government and the media will catch on and act to rein in what our intelligence services can say or do collaboratively with Americans, regrettably for them and us, and to the advantage of real international terror groups.

ADDENDUM: Does this mean, BruceR, that, having adopted this new approach to fighting terror, retroactively and with broad popular support, the United States government has nothing left to apologize for re the Arar case anymore? No! Because the worst transgression in the Arar case wasn't the Americans' disregarding of their own laws regarding due process or conventions against torture, it was their complete refusal to inform Canadian authorities of Arar's disposition, as guaranteed under their Vienna Convention obligations. Recall it was the oh-so-respectable Syrians who finally officially told Canada where their citizen was. Combine that prospect with the new U.S. law denying anyone but the citizen's government standing to intervene in their imprisonment on a terror rap, and you have a highly likely prospect that a non-U.S. citizen could easily be internally rendered to their detention system and held for some considerable time without anyone knowing about it or being able to intervene. If the revoking of the 1963 Vienna Convention is also part of U.S. policy now, then they should say so... if not, then they still owe Canada and Mr. Arar a profound apology.

*By my reading, the bill expressly does not suspend habeas for U.S. citizens, so I do think some web commenters I generally favour have overreached here. The language on this point does pretty clearly limit the suspension of habeas to "aliens," or non-citizens. The exact quote: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." Can't get much clearer than that... which is also why today's protest by Volokh et al and Instapundit that they are not "experts on habeas law" fall so hollow.

Not a good ratio

From Austin Bay:

The new leader of al Qaeda in Iraq said in an audiotape posted on the Internet Thursday that more than 4,000 foreign insurgent fighters have been killed in Iraq since the U.S.-led invasion in 2003.

Now, keep in mind that the point of this statement is to emphasize the contribution of non-Iraqis to the struggle, not downplay their losses, so there is a high probability of this being at least an honest attempt at an estimate of total fatal foreign-fighter casualties on al-Qaeda-in-Iraq's part.

Current U.S. and coalition fatalities in Iraq: 2,944.

I'm thinking that at a less than 1.5-to-1 attrition loss rate U.S. forces are more likely to run out of soldiers than the entire Arab world will run out of willing volunteers.

Now, the obvious counter to this is it doesn't include any of the Iraqi fighters killed by U.S. forces. The counter-counter to that is that the 2,944 number doesn't include the thousands of Iraqi security personnel killed by insurgents, either, so it's still somewhat apples-to-apples. But still one hopes al-Muhajir is either dissembling or misinformed here, even if there's no obvious reason he would be.

The vultures descend

From the Washington Post, today:

BAGHDAD, Sept. 27 -- A $75 million project to build the largest police academy in Iraq has been so grossly mismanaged that the campus now poses health risks to recruits and might need to be partially demolished, U.S. investigators have found.

The Baghdad Police College, hailed as crucial to U.S. efforts to prepare Iraqis to take control of the country's security, was so poorly constructed that feces and urine rained from the ceilings in student barracks. Floors heaved inches off the ground and cracked apart. Water dripped so profusely in one room that it was dubbed "the rain forest..."

The academy was built by the Parsons Corporation, which you may remember from previous stories such as this one, from the New York Times:

A $243 million program led by the United States Army Corps of Engineers to build 150 health care clinics in Iraq has in some cases produced little more than empty shells of crumbling concrete and shattered bricks cemented together into uneven walls, two reports by a federal oversight office have found.

The reports, released yesterday, detail a close inspection of five of the clinics in the northern city of Kirkuk as well as a sweeping audit of the entire program, which began in March 2004 as a heavily promoted effort to improve health care for ordinary Iraqis. The reports say that none of the five clinics in Kirkuk and only 20 of the original 150 across the country will be completed without new financing...

Something else probably worth noting about Parsons Corp:

"...as of April 16, 2003, in 2002 Parsons Corp. ranked seventh in total campaign contributions among construction services firms, giving $153,051 (61 per cent to Republicans)"

Back in the 1990s, it was widely assumed Saddam Hussein had fired Parsons and ended their megaproject to build him a subway system for Baghdad, because he wanted to use their unfinished tunnels for WMD storage: allegations later proved by the Duelfer Report to be false. The recent experiences tend to indicate instead that it could just be that Saddam knew a crook when he saw one.

A curious silence

Instapundit, on the Cory Maye case, Sept. 24:

"This is wrong. It's not only a reason why no-knock raids should be banned except in life-or-death situations, but it's also an example of how unfettered prosecutorial discretion is unfair and dangerous. In cases like this, there should be much more accountability for decisions to prosecute, or not to prosecute."

Instapundit, on this week's compromise Torture Bill's removal of habeas corpus appeal from anyone suspected of supporting terrorism, allowing them to be held forever by the army or CIA without trial, pretty much the ultimate in "unfettered prosecutorial discretion":

*chirp, chirp*

Volokh.com, it bears noting, has been similarly silent so far on the compromise legislation.

The whole point of having a couple of law professors on your list of readable blogs is that they might have something informative to say on, you know, legal issues. Unfortunately, neither Reynolds nor the Volokh gang are reliable in this regard any longer.

Indeed, it's fair to say that both law blogs have become pretty reliable barometers on the times when government critics have a strong point to make, purely because on those issues they habitually decline to say anything at all.

UPDATE: That goes for Althouse and her little dog, too.

I guess it's official now

We've started rolling back the Enlightenment. Pity: it's a beautiful opera.

NOTE: To be fair, I haven't seen this 2003 German remake the fuss is about, or even the opera itself: I've only ever listened to it on recording and radio (let's just say Texaco's Saturday Afternoon at the Opera broadcast was a big weekend afternoon favourite in our house when I was young). The original was hardly a condemnation of religion, and any Muslim complaints seem entirely to do with tacked-on props and stage direction.

Peter Sellars also did a controversial Ideomeneo in England in 2003, with the Cretan King costumed as a Republican and Ilia as an Iraqi detainee. Maybe Berlin should try staging that one instead.

Keep it up, Steve

Tories to use $13.2-billion surplus to pay down debt

Freaking amazing: At 7.5% interest, that's a billion dollar a year cut into perpetuity in our national debt payments. *This* is responsible government. (It almost makes up for the Martin Liberals' complete renege during 2004-5 on the impressive late-Chretien record in debt reduction.)

Airplane restrictions: 3 ounces or less okay

Well, looks like some sanity is returning to the airways, with the lifting of U.S. restrictions on liquid and gel containers weighing less than 3 ounces (.09 kg) or purchased in the airport itself.

This is entirely sane, and should have been the rule from the beginning of this hysteria. As discussed previously here, the amount of high explosive required to reliably bring down a plane is in the area of .45 kg. Historically, onboard explosions involving less than .1kg of nitroglycerin or its equivalent have done little damage to the plane, only to seat occupants in the immediate vicinity of the explosion.

It's fun here at the centre of the world

And so, it looks like Canada's natural governing party is set to replace one U of T alumnus with another U of T alumnus. Yes, one's from St. Mike's and the other's from UC... just goes to show the incredible diversity of that little vertical mosaic we like to call Canada.

This is what's left to laud

Quoth Glenn Reynolds:

STRATEGYPAGE OFFERS A RATHER POSITIVE TAKE on what's going on in Anbar province:

Coalition forces in Iraq have suddenly received the manpower equivalent of three light infantry divisions...

The story, if you actually read it, is how the ongoing power vacuum in Anbar has led to local warlords there forming their own 30,000 strong Sunni militia. Hey, it worked, for the Shiites and Kurds. The idea that it will somehow contribute to stability, is of course illusory.

About the Mosul chemical weapons lab

Every now and again I see reference to the Iraq insurgency's "chemical weapons lab" found in Mosul a year ago. The initial story was fairly alarming.

There's a slightly more revealing story in the Air Force Times that really should be read in conjunction. It's here.

Initial testing by chemical teams from the 1st Brigade, 25th Infantry Division (Stryker Brigade Combat Team) found no evidence of chemical warfare agents, but more detailed tests are being conducted in Baghdad as well as the United States, said Maj. Michael Petrunyak, chemical officer for Task Force Freedom.

The plant is a one-story, concrete building in an industrial area of eastern Mosul. Inside there are several containers of Formaldehyde and bags of Sodium Hydroxide, or caustic soda which can be used as a strong base, Petrunyak said.

Of course, formaldehyde and sodium hydroxide can also be found in close conjunction with each other in a meth lab, but let's say that the int guys got that much right and this was actually an insurgent hideout. The most likely explanation is that the bad guys had acquired two-thirds of a common recipe for HMTD high explosive. The missing third ingredient would have been ammonium sulfate, found in fertilizer.

What it could be is evidence that, at least around Mosul, insurgents are finally beginning to run out of easily procurable surplus explosives and have had to start making their own. What it is definitely not is evidence they were in the chemical weapons game, which requires somewhat different ingredients.

On the incompetence dodge

Re Matthew Yglesias v. Jonathan Chait on the incompetence dodge in Iraq:

The debate is whether Iraq was lost from the beginning, or lost through American incompetence in execution. Well, the history of this blog shows my own extreme skepticism that the fantasies of the war backers were achievable months before the actual invasion. But I still thought then there was a long-shot chance of eventual success, and I wouldn't retract that now.

Why? Well, because of the successful historical examples of West Germany and Japan to start with. Both countries had as little a successful history of non-authoritarian rule as Iraq did, in a way, but they were effectively reconstructed. Looking at the history of German reconstruction in particular shows two huge political differences with Iraq, and the Marshall Plan isn't one of them.

First off, much of the German army was kept in being or reconscripted into labour battalions to assist in early rebuilding. I identified the May 23, 2003 decision to permanently disband the Iraqi military and aggressively de-Baathify the civil service as a huge error in September of that year, and nothing that's happened since has changed that opinion.

The other big difference between Iraq and Germany was the way German politics were slowly reconstructed democratically from the municipal level on up, starting with town and city elections in January, 1946, through provincial elections, and then national elections and the passing of the Basic Law (the new constitution) in 1949. By comparison, the American model in Iraq was inordinately rushed, with U.S. appointed, undemocratic local councils within two months of Baghdad falling and a series of increasingly divisive national election events since. In Germany, the Americans gave Germans time to learn democracy at the most immediate levels before forcing them to use it to solve national problems... a lesson that was completely lost in Iraq. A German model would have seen an Iraqi constitution and elected national legislature still off in the distance (late 2007). This, however, would have meant a greater commitment to the long haul than Americans this time proved capable of selling to their public.

It's hard to overstate the political impact of these two errors. Corruption and cronyism in colonial occupations is historically pretty much a given, regardless of the intentions of the occupiers. So are immediate post-war enrichment and looting. So is the intrusion of externalities like neighboring nations complicating your efforts. But to make these other gigantic errors on top of the usual factors has proved unforgivable, and unfixable.

The difference is, of course, that there was no real commitment from the Bush administration to democratizing Iraq. They clearly expected pre-war to hand the country over to another strongman (Chalabi) and make another Egypt out of the place: a friendly authoritarian regime, with basing rights. If they had been truly committed to rebuilding Iraq in America's image, they would have taken a more measured course. In this way, they, not their opponents, sold their pro-democracy supporters, right and left, in-blogosphere and out, completely downriver.

History will show that these early political errors of the summer of 2003 contributed greatly to the climate that led to the onset of increasing military errors in early 2004, particularly the April 2004 failed assault on Fallujah, where Marine Commander Gen. Conway and his superiors in Washington not only overruled, it now turns out, the advice of the division commander on the ground that they should adopt a more measured response to the deaths of four U.S. paramilitaries, but did so at the same time that the CPA chose to launch its ultimately ineffective political offensive against Sadrism. In retrospect, the U.S. came astonishly close to losing the whole country that summer, ultimately settling for the achievement of none of their original stated aims: neither the capture of the contractors' killers, nor Sadr and his henchmen, either. But the important point is that the political errors clearly preceded these military ones.

The other important point is that to say that the Bush administration conduct of the occupation was of average competence in the face of an insoluble solution is the same as to say that the entirely successful and nearly violence-free reconstruction of West Germany in the face of similar pressures was one of the most unlikely and remarkable achievements of an impossibility in all of human history. Impressive it was, yes, but you only need to attribute a divine infallibility and brilliance to Harry S Truman if you still believe the Bush performance to this point has been average or better: that's not tenable.

It should probably also be noted that a country that took mobilization to a cause as seriously as the U.S. did after 1941 is going to be better equipped to put the right people in the right jobs for a subsequent reconstruction than a country that did nothing much in the way of national rededication after 2001 and that accepted persistent and ongoing mistruths from their leaders about the cost, duration, and reasons for their foreign adventurism. The U.S. Army was able to put a lot of good people into important administrative roles in Germany in 1945 because by that point the U.S. Army had a significant portion of the nation's good people in their ranks and already pre-committed to a cause greater than their own personal interest.

UPDATE: The secondary-level U.S. military error, which did compound the effects of the errors above, was undermanning the mission. I really don't think they undermanned by a completely unrealistic amount, however: at most a factor of two. Historical comparisons would tend to suggest that a coalition with a maximum surge capability of up to 250,000 non-Iraqi troops during the immediate postwar phase and available again in the case of crisis, something less than that (the current 150,000 or perhaps less) the rest of the time, throughout the first three years of occupation, probably would have blunted a lot of the impact of the political screwups, and things would be much better today than they were. That force level might have been achievable with a greater attempt by the Bush administration to build a pre-war consensus, bringing in India, Turkey, and Egypt for starters (good, with the right incentives, for 20,000 men each). Which is basically what I said back in February, 2003: that it would be better to wait and coalition-build some more then attack when they did, and that chances of long-term success if they went right away were slim at best.

Things you won't hear me say too often, no. 43

Good for the Pope.

Canadian casualties: now #4 on the balance sheet

Once again, I must say it gives me no pleasure at all to say this, but by either proportional measure (size of military or size of national population), recent fatal casualties among the Canadian military have put the nation in a higher place among nations involved in the Iraq and Afghanistan campaigns.

Here are the total fatal casualties in Iraq and Afghanistan since Sept. 11 combined, by nation:
1. United States 2,991
2. United Kingdom 154
3. Italy 38
4. Canada 32
5. Spain 30
6. Ukraine 18
7. Germany 18
8. Poland 17
9. Bulgaria 13
10. France 9

Here are the fatal military casualties per 1,000 military service personnel (all arms):
1. United States 2.14
2. United Kingdom 0.73
3. Canada 0.57
4. Spain 0.21
5. Bulgaria 0.19

Here are the fatal military casualties per million population:
1. United States 10.49
2. United Kingdom 2.61
3. Bulgaria 1.75
4. Canada 1.00
5. Spain 0.75

I suspect most Americans would not reflexively rate Canada, Bulgaria, and the pusillanimous Spanish as their greatest allies after Britain. I do wish they'd start.

A compelling video from Lebanon

Close-quarters combat footage from the Israel-Lebanon border. Definitely worth watching.