Jamie Gorelick has received most of the blame for the sequestering of the ABLE DANGER information. She makes an inviting target given her role in reinforcing the Wall and her position on the 9-11 Commission. However, the actions of the DOD lawyers deserve further scrutiny. It is not so much the particulars of their role in ABLE DANGER. Rather, it is that this is one more example of a deeply disturbing pattern of behavior by DOD lawyers in the War on Terror.
I posted this in May 2004 when the first Sy Hersh stories about Abu Ghraib appeared.
The revelation is the aggressive actions by military lawyers to undermine the war on terror (not just black ops in Iraq). Hersh admits that the some of the impetus behind Rumsfeld's decision to use special operations began in Afghanistan when a military lawyer refused to OK an air strike against a convoy believed to include Mullah Omar in October 7, 2001. JAG lawyers began to fume about "being cut out of the policy formulation process." But here is the kicker:
In 2003, Rumsfeld's apparent disregard for the requirements of the Geneva Conventions while carrying out the war on terror had led a group of senior military legal officers from the Judge Advocate General's (jag) Corps to pay two surprise visits within five months to Scott Horton, who was then chairman of the New York City Bar Association's Committee on International Human Rights. "They wanted us to challenge the Bush Administration about its standards for detentions and interrogation," Horton told me. "They were urging us to get involved and speak in a very loud voice. It came pretty much out of the blue. The message was that conditions are ripe for abuse, and it's going to occur."
A bunch of JAG lawyers went to an outside group to encourage them to agitate against our actions in the war on terror. They had no specific examples of abuse, just a belief that "it's going to occur." They did not raise their voices publically or go up the chain of command: they opted for behind the scenes manipulation. Is that the conduct of an officer or a gentleman? Moreover, is it possible that the some of these JAG lawyers are assigned to the Abu Ghraib cases? If so,they are primed to paint the abuse by the guards as a systemic problem and to go public with the pictures This both helps their clients and makes their case against the special operations tactics employed against al Qaeda?
The DOD lawyers are important for two reasons. One: ABLE DANGER is symptomatic of their habitual foot-dragging that persisted after 9-11. Gorelick is out of government, but the lawyers in the Pentagon are still making policy, raising objections, and leaking to reporters. Two: Those lawyers may have a role in determining what ABLE DANGER information will be released and how it will be framed.
This is important in light of Andy McCarthy's question in the Corner:
What does the Pentagon have to say about all this? I repeat: it has been four years and there have been a zillion investigations during which the Defense Department (and other organs of government that may be relevant here) have been directed, re-directed, and re-re-directed to probe every scrap of paper, every databyte and every source in their possession in order that the country could understand what the state of our intelligence was prior to 9/11 and why we were unable to thwart the attacks. Why does it take more than 10 seconds at this point, August 2005, for DoD to say: "yes, we have documentation showing an identification of Atta and/or other hijackers prior to 9/11," or "no, we don't."
Other related point: AJSrata points to some other legalistic roadblocks pre-911.
Bill West at the Counterterrorism blog makes the point that the roadblocks to using ABLE DANGER were not all internal to DOD.
If the news about the DoD intelligence is true, that infamous intelligence "wall" truly did create a huge missed opportunity in this...along with what was then the Clinton Administration's generally fouled-up Immigration and Naturalization Service (INS), where I served in the Investigations Division for 25 years.
The INS Headquarters National Security Unit (NSU), which was created in the late 1990s in spite of considerable obstacles generated by the INS High Command, was one of the few and small success stories within the INS. The INS/NSU, circa 1999-2000, tried to post a liaison officer to the Defense Intelligence Agency (DIA) specifically to tap into DoD intelligence on counter-terrorism matters. The NSU Director at the time approved it and DIA bought off on the plan...but INS senior management above the NSU Director nixed it so it never happened. When I was on the job, I dealt with the NSU folks regularly...at times almost daily...on various operational matters.
Contrast that this obstructionism on a reasonable counter-terrorism matter with the high level urgency the senior ranks of the INS brought to a routine child custody case in Florida (Elian Gonzalez). Now tell me again how dedicated to proactive anti-terrorism Reno, et. al. were.
In light of this information, Richard Clarke really tried to sell the Commission a bill of goods with the help of "60 Minutes."