Judge Claims No Jurisdiction Over Force-Feeding at Guantanamo

Yesterday, multiple news outlets reported that despite efforts by defense attorneys for Guantanamo Bay detainees, federal courts do not have the power to stop Guantanamo personnel from force-feeding the detainees.  U.S. District Court Judge Gladys Kessler handed down a quick decision stating that federal courts simply do not have the jurisdiction or authority to order the military to stop using force-feeding tactics in response to hunger strikes implemented by detainees to protest their detention status at Gitmo.

The decision was handed down quickly in part because the court and attorneys on both sides wanted an answer before the beginning of Ramadan, the traditional Muslim holy month that requires Muslims to fast during daylight hours.  One of the main concerns was that force-feeding detainees during fasting hours would violate this core tenant of the Islamic religion.  As I noted when I first wrote about this lawsuit, in the past the military has agreed not to force-feed detainees during these hours so that detainees could observe their holy month.  In fact, in the response to the suit filed by the pentagon, the government stated that barring any emergency situations, they would agree to only force-feed detainees after sunset.  So even though we’re going to keep shoving tubes into detainees’ (that we have already admitted are not being charged with crimes) orifices while they are strapped down to chairs, we’re at least going to let them maintain the last shred of religious dignity they might have left.  Take from that what you will.

The basis for the lawsuit was not just religious.  Detainees and human rights advocates have long claimed that force-feeding is akin to torture, especially when implemented on detainees who are of sound mind and have made conscious decisions to partake in the hunger strikes.  The legal brief submitted by defense attorneys called the process “dishonorable” and “degrading.”

Although Judge Kessler admitted that the courts could not rule on the issue, she made her personal opinion known in her decision by echoing many of the above concerns, calling the force-feeding process “painful” and “degrading.”  She not-so-subtly called on the Obama administration to take action where the courts could not and shut down force-feeding itself.  Judge Kessler singled out President Obama for a speech given back on May 23rd, which some of you may recall:

“Look at the current situation, where we are force-feeding detainees who are holding a hunger strike.  Is that who we are?  Is that something that our founders foresaw?  Is that the America we want to leave to our children?  Our sense of justice is stronger than that.”

This coming from the same president that promised to close down Guantanamo Bay when he was first elected, and yet here we are.  I understand that it’s not that simple and that there’s a lot of politics behind the decision to keep it open.  There are a lot of politicians (and members of the public) who want to keep Guantanamo open and it’s not exactly President Obama’s unilateral decision to make.  But his administration has a chance to make a statement here and restore some level of civility to a system that’s drawn an awful lot of criticism for alleged human rights violations in recent years.  Shutting down force-feeding isn’t going to erase those incidents, but it could go a long way toward easing the tension surrounding Guantanamo Bay, at least in the short-term.  Most importantly, it would show the world that we DO respect human rights.  And as of late the world has plenty of reasons to question whether we actually do.

Sidenote – My blogging compatriots have gone into detail on what exactly the force-feeding process entails, and you can read about it here.  Seeing it in print is disturbing enough, but if you still want a better picture of the process, you’re in luck.  Over the weekend, Yasiin Bey, better known as hip-hop artist Mos Def, took the plunge and agreed to undergo the force-feeding procedure in London.  I don’t recommend clicking that link if you’re squeamish.  Keep in mind that there are 106 prisoners partaking in the hunger strikes at the moment, and 45 of them undergo this 2-hour process twice a day.

Chris Whitten, Research Fellow
Center for Policy and Research

Detainees Turn to Courts to Stop Force-Feeding

Despite prior rulings that federal courts have no jurisdiction over the treatment of detainees at Guantanamo Bay, attorneys for detainees at the detention center have now turned to the court system for help in putting a stop to force-feeding at the GTMO Detention Camp.  Over the weekend, defense attorneys filed a motion with a federal district court in Washington DC requesting an immediate hearing on the legality of tactics used by military personnel at Guantanamo to keep hunger-striking prisoners alive.  In the 30-page motion, defense attorney Jon B. Eisenberg stated, “There cannot be a legitimate penological interest in force-feeding petitioners (detainees) to prolong their indefinite detention.”

The military continues to defend the use of force-feeding as a necessary step to maintain order at Guantanamo, but the defense attorneys and detainees argue that it is a direct violation of human rights.  Detainee Nabil Hadjarab claims that he is taking part in the hunger strikes to protest his detention despite the fact that no formal charges have been lodged against him.  Hadjarab stated, “I am doing this because I want to know my destiny.  I cannot abide not knowing anymore.”  Force-feeding at Guantanamo has been criticized for months now but this is one of the first instances where the detainee’s defense counsel has turned to the courts for relief.

The motion specifically names four detainees, and there might be a reason for its timing.  The Islamic holy month of Ramadan starts next week, and any force-feeding that might occur during daytime hours could violate detainees’ religious beliefs.  Even if the motion is not presented to the court by next week, the detainees are seeking a temporary order that would prohibit guards from force-feeding them from sunup to sundown.  This would probably be granted as guards at Guantanamo have agreed in the past to only force-feed detainees after sundown in observance with Ramadan.

Even so, guards at Guantanamo are unlikely to change their ways without a specific court order.  Army Colonel Greg Julian stated, “Until we are told to do differently the practice will not change.”  I can understand that guards at Guantanamo are simply following orders.  They aren’t exactly in the best position.  They don’t get to make the call on whether or not the detainees are charged or released.  As for the overarching policy, I agree that it isn’t a good look to have detainees dying from malnutrition at Guantanamo.  But it isn’t much better to shove tubes into detainees’ stomachs in response to a protest that has a perfectly legitimate aim.

We aren’t talking about detainees with high intelligence value or detainees that have been charged with crimes.  I can see a better argument for force-feeding detainees in that category, even if it might still be a human rights violation.  We could at least justify it since keeping them alive might save more lives if they have information on any impending attacks.  Instead, we’re talking about men who have been told by the government that there are no charges against them due to lack of evidence, but they are still not allowed to leave Guantanamo Bay.  These are men who have made a conscious decision to protest a policy that many Americans don’t even like.  And if the courts put a stop to force-feeding it might force the government’s hand into making a decision as to their fate.

Either way, this has turned into an issue that the courts will now have to address.  And with the total number of hunger-strikers at 106 and the number of detainees being force-fed at 45, it will be interesting to see how this plays out in the next week or so.

Chris Whitten
Center for Policy and Research

Court of Appeals upholds denial of FOIA request seeking Bin Laden photos

The Court of Appeals for the District of Columbia yesterday decided to uphold a district court ruling that the US did not have to release photos of taken during and after the raid on Osama Bin Laden’s compound in Abbottabad, Pakistan. The photos were sought by a conservative watchdog group, Judicial Watch, under a Freedom of Information Act request. The court found, however, that since the photos were used to conduct facial recognition to verify the body as Bin Laden, releasing the photos could endanger intelligence methods.

While I do not dispute that ruling, I am happy about the outcome on another ground altogether. John Bennett, director of the CIA’s National Clandestine Service, described the photos in a declaration to the court as “quite graphic, as they depict the fatal bullet wound to and other similarly gruesome images of his corpse.” And according to the Appeals Court,

“As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al-Qaida could cause exceptionally grave harm.”

To my mind, this decision validates an important reason for the Freedom of Information Act: informational transparency. Congress did not pass it to give the media free access to salacious material to boost their ratings.

As citizens of an open democracy, Americans have a right to information about their government and its activities. But where the government has a legitimate reason for withholding a document, even if it is on grounds such as diplomatic “embarrassment,” as happened in the Bradley Manning Wikileaks case, a FOIA request should as a matter of policy only be granted if there is a legitimate informational purpose. Judicial Watch could identify no cognizable information contained in the pictures that was not already publicly known. Thus, releasing the photos would not serve FOIA’s purpose of informational transparency, only the media’s purpose of generating buzz.

A vastly undervalued aspect of protecting our rights as citizens of an open society is to avoid abusing those rights. One example of the dangers that fear of unwarranted disclosure can cause can be found in the case of the CIA interrogation tapes. Fearing that these tapes may at some point become public, the CIA destroyed them. The courts yesterday thus did us a favor in protecting the government from unnecessary disclosure of gruesome photos, helping to ensuring that the government can do its job without fear that anything and everything will wind up on Fox, MSNBC, and Al Jazeera.

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

Speedy trial chickens may be coming home to roost

In a previous post, I mentioned the possibility of speedy trial problems arising if terrorism suspects are treated differently than other violent criminals. And we are now seeing signs that this may be true.

The defense for Guantanamo Bay prisoner Ahmed Gilani, who is so far the only GTMO detainee to be tried in Federal court rather than in a Military Tribunal, is now seeking to have his conviction overturned due to his long detention prior to trial (see also, here). Gilani was sentenced to life in prison for his role in the 1998 embassy attacks in Tanzania and Kenya. After his capture in Pakistan in 2004, he was held in incommunicado by the CIA for two years, then by the military at Guantanamo Bay, Cuba until 2009, when the Obama Administration transferred him to civilian custody for trial.

But I suspect that while this delay is truly significant, and under normal circumstances would be a clear violation of the constitutional requirement for a speedy trial, I think there is a clear difference between this case and the Boston bombing case. Where Tsarnaev was a civilian captured in the US with no apparent ties to a foreign enemy entity (state-based, state-sponsored, or otherwise), Gilani was captured on foreign soil in the course of a foreign war authorized by Congress. As such, the US was authorized to hold Gilani without charge as a suspected enemy combatant, regardless of his activities in 1998.

Where one might decide to draw the line between these two poles, with arrest under civilian authority on the one end, and capture under foreign relations/law of war authority on the other, I don’t exactly know. However, it is clear that these two cases fall on opposite sides of that divide. So even if Gilani’s speedy trial appeal is defeated, as I suspect it will, that does not limit the concern that such an appeal could lead to the release of convicted terrorists if pre-trial detention is prolonged for intelligence-gathering purposes. Such concerns are very real, and should not be taken lightly.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

Fed’s handling of Tsarnaev draws criticism (and praise)

After capturing the second Boston Marathon bombing suspect on Friday, the FBI decided to invoke the public safety exception to the Miranda requirement. This decision has generated much debate about the rights that should be afforded to terrorism suspects, whether a distinction should be drawn between foreign and domestic terrorist suspects, and who qualifies as which.

According to the ACLU, while authorities should be able to question Tsarnaev about imminent threats, using the public safety exception “to create the case against the suspect” would be “wholly inappropriate and unconstitutional.”  In this they are absolutely correct. This exception was created not as an investigatory tool, but as an excuse for officers who, under pressing circumstances and in the heat of the moment, ask a question of a suspect, such as “where is the bomb?” or “which way did your accomplice run?” It was a failsafe to allow officers who ask questions with the sole purpose of ensuring public safety before read the suspect their rights to still be able to introduce the suspects responses in court. It was not intended to create a tactic by which police could intentionally delay mirandizing suspects.

Relatedly,  several Republican politicians have argued that Tsarnaev should be officially labelled an “enemy combatant” in order to remove procedural hurdles to national security investigations. For example, as an enemy combatant, Tsarnaev would not be entitled to the a lawyer during interrogation. These lawmakers hope that by removing the Miranda warning and its attendant rights, the authorities may be  better able to probe possible links to al Qaeda or other terrorist groups.

Of course, there is as yet no indication that there are any such links, and if there are, the 4th and 5th Amendments have generally not gotten in the way of finding out. For example, “Millennium Bomber”Ahmed Ressam gave up all of his contacts shortly after being caught and interrogated by the FBI under full Constitutional protection. In fact, facing 130 years in prison, he sang like a bird for 4 years while his sentencing was put on hold. (The uber-liberal Ninth Circuit has since ruled that Ressam’s 22-year sentence was too lenient, and placed an effective floor of 65 year on the sentence.)

But this has not stopped some Republican lawmakers from claiming the need to apply extraordinary measures to “foreign” terrorists. However, they seem to have hit a snag here, since Tsarnaev is a naturalized US citizen, not that they let this get in the way. In fact, Senator Lindsey Graham went so far as to advocate using racial and religious profiling to to determine if Constitutional protections should apply:

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that. But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

So, according to Senator Graham. if they are Chechen and/or Muslim, screw their rights.

Discrimination aside, Sen. Graham seems to have forgotten that we don’t need to hold Tsarnaev for intelligence gathering purposes, since he’s already being held for criminal prosecution. This gives the FBI and other Federal investigators ample access to him for intelligence gathering purposes.

Indeed, holding Tsarnaev as an enemy combatant could jeopardize the government’s ability to try him, since Military Commissions have no jurisdiction over US citizens, and the latter trying him in civilian courts could trigger problems with speedy trial protections and admissibility of the evidence obtained without 4th and 5th Amendment protections.

For additional commentary on the Tsarnaev case, the following were collected by Fordham’s Center on National Security:

New York Times: “Mr. Graham’s reckless statement makes a mockery of the superb civilian police work that led to the suspect’s capture….Fortunately the Obama administration has ignored the posturing and declared that Mr. Tsarnaev, like all citizens and even alien terrorists captured on American soil, will be tried in the federal courts.”

Wall Street Journal: “The flap over reading [Tsarnaev] his Miranda rights is a largely irrelevant distraction. … The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful.”

New Yorker: Does the public exception to the Miranda “grant the police a limited ability to ask where a bomb is or which way an accomplice ran, and use the answers in court? Or is it a free forty-eight-hour questioning coupon the government gets for calling someone a terrorist?”

Paul W. Taylor, Senior Fellow
Center for Policy & Research

Abu Ghaith Trial Postponed Due to the Sequester

It seems as though the already controversial Federal trial of Usama Bin Laden’s son-in-law, Sulaiman Abu Ghaith, may be in jeopardy- at least temporarily.

Abu Ghaith’s trial began on March 8 when he pled not guilty to conspiracy charges based on intelligence pointing to possible connections with Al-Qaida and the 9/11 attacks.  Prior to Monday, Abu Ghaith’s trial was scheduled to begin as early as September.  However, the recent sequester that has slashed federal government spending will now push proceedings back as far as 2014.

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Abu Ghaith’s public defenders argued that blanket budget cuts of 5.1 per cent would not allow them to adequately defend their client, especially given the gravity of the charges against him.  In addition, the budget cuts will force the defense team to take at least a five-week unpaid furlough this fall.  The prosecutors also requested a postponement, agreeing with the defense that the sequester will place a heavy burden on both sides during trial preparation.  Judge Lewis Kaplain called the delay “troublesome,” noting that it was difficult to contemplate that such a high-profile case would be delayed due to budget difficulties.  Still, he agreed and set the trial date for January 7, 2014.

In addition to pushing the trial back, the defense also moved to strike a 22-page statement made by Abu Ghaith shortly after he was turned over to U.S. forces in Jordan.  They also said they will seek a venue change, partly due to the close proximity to the Manhattan federal courthouse to the former site of the World Trade Center, which they believe may have an effect on the jury’s verdict.

Chris Whitten, Research Fellow
Center for Policy and Research

Seeking Sanity in the Drone Debate

Drone bashing seems to be in vogue these days, especially in on the liberal end of the media spectrum. Many of these critiques are based on faulty information or focus entirely on the most extreme examples or hypothetical situations, such as whether the government could target a US citizen sitting at a Starbucks in NYC. Of course, these arguments are feed by our own elected officials, sometimes of the conservative bent (I’m pointing at you, Rand Paul).

I would like to point out one beacon of sanity among these shrill arguments. Hassan Abbas, in his article at the Atlantic, criticizes US drone policy in Pakistan, does a remarkable job of producing a relatively balanced argument, while still clearly landing on the liberal end of the spectrum. I don’t agree with all of his assessments, or even all of his “ground realities.” For example, it is particularly questionable that we know that around 50-60% of all drone victims have been civilians. Verifying just the numbers is a difficult task, and classifying the victims into combatants and civilians even harder–and his reliance on “local estimates” falls prey to his own critique of the bias in other studies.

However, I actually do agree with his basic assessment of the situation. The use of drones allows policy-makers to feel like they are doing something about the situation, while they are in fact ignoring the underlying issues. For example, as Abbas notes,

“There were roughly 350 drone strikes in the tribal areas since 2004, at an exorbitant cost (even though drone strikes offer a cheaper option in comparison to “boots on ground”). But how many schools were opened in the region over the same period of time? The answer is distressing, as the number of schools has actually declined sharply.”

This is a relatively common argument among the few drone critics who go beyond the temptation to focus on gore or appeals to sovereignty, and take a more nuanced view. But Abbas goes one step further, pointing out the role of those the US drone campaign targets:

“Damages to more than 460 schools throughout the tribal belt at the hands of Taliban has in fact displaced 62,000 children, including 23,000 girls, from school. It doesn’t require very high intelligence to guess that in the absence of schools, and with an increase in violence, what kind of future awaits these kids. Drone strikes may take out some of those who destroyed these schools, but that is hardly a sustainable solution to the larger problem.”

And in this, he is absolutely right. The situation in which the youth were placed in the 1980s and 90s was one of the factors leading to the rise of the Taliban. And as Abbas points out, drones can do little to protect the youth, and nothing to build them new school or provide quality teachers. The drone campaign doesn’t even try to do these things.

After all, our drone policy is basically a band-aid solution. It is designed to keep the leadership of al-Qaeda and the Taliban on the run, but has no hope of finally defeating either organization. However, it is folly to think that just because drones will not solve the security or humanitarian issues in Pakistan and Afghanistan, we should abandon the policy. That said, Abbas is perfectly correct that the solution is not sustainable. It must be augmented (and eventually entirely replaced) by policy directed at the human dimension.

One problem there, though: No one knows how to do that. Any ideas?

Paul Taylor, Senior Research Fellow
Center for Policy & Research

Ramifications of Federal Court Trials vs. Military Commission

 

Earlier this month, on March 8, Sulaiman Abu Ghaith, Usama Bin Laden’s son-in-law, pleaded not guilty to a charge of conspiracy to kill Americans in a federal courthouse in Manhattan.  Although his connections with the infamous 9/11 attacks are disputed, he is charged with publically praising the attacks and providing support to Al Qaeda for roughly 15 years.  This will undoubtedly be one of the most high-profile terrorist-related trials to take place since the beginning of the War on Terror given the Abu Ghaith’s alleged ties with Bin Laden, but the circumstances surrounding it have already given rise to harsh criticism from politicians and the general public.

In particular, the main cause for concern is the curious decision to try Abu Ghaith in a federal court rather than a military commission trial at Guantanamo Bay, as is normally the course of action in terrorism-related cases.  Lawmakers argue that this decision could have far-reaching implications not only for the Abu Ghaith trial, but for future terrorism-related trials as well.

But what are these implications?  For starters, the Abu Ghaith trial begins a new chapter in a fight between President Obama’s administration and Congress.  In 2009, President Obama announced that he would transfer five Guantanamo detainees to the United States to face criminal charges in federal court.  Opponents of Obama’s plan argued that transferring suspected terrorists to U.S. soil would compromise national security and could lead to wrongful acquittals of guilty parties.  Those in favor of the plan countered by pointing out the efficiency and fairness of the American justice system.

Congress ultimately responded by enacting legislation that froze the funds needed to make those transfers happen.  The Obama administration has seemingly found a loophole in the Congressional act, which only covers Guantanamo detainees, by bringing suspected terrorists to the United States without first holding them at Guantanamo.

Beyond policy considerations, there are legal implications at the heart of the discussion.  In regard to the Abu Ghaith trial, critics argue that Abu Ghaith will be granted rights under the Due Process clause of the Constitution during his trial in federal court that would not exist if he were tried at Guantanamo Bay.  For instance, a military commission does not grant the right to a speedy trial that would be applicable in federal court.  However, the Supreme Court has yet to voice its opinion on whether these rights would also be applicable in a military court, which leaves some uncertainty as to whether these concerns are legitimate.

The type of evidence allowed also differs between military commissions and federal courts.  While both would allow coerced testimony obtained at the point of capture, military commissions typically allow hearsay evidence, which will be barred in federal court.  This will be a significant difference, especially because the federal prosecutor will have a higher burden of proof than a military commission would require.  However, this burden may not pose problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.

Along those same lines, defendants in the federal court system may have greater access to witnesses than in military commissions.  In military commissions, the defendant would have no right to subpoena witnesses.  Also, although the judge in a military commission has the power to compel witnesses to appear, he does not have to do so depending on the circumstances.  During the course of his trial, Abu Ghaith will have a better opportunity to call witnesses in support of his defense.  Critics argue that these differences may lead to a wrongful acquittal of a suspected terrorist.  However, the extra burden may not pose the problem that critics cite, as federal courts have had a 91% conviction rate in terrorism-related cases since the 9/11 attacks.

The human rights group Human Rights First points out that a trial at federal court will protect defendants from being convicted ex-post facto.  In other words, defendants will not be convicted of crimes that were not articulated by the legislature at the time they were allegedly committed.  Military commissions allow such convictions, meaning that a defendant may have no prior notice that he is committing a criminal act at the time of his actions.

Finally, the process of selecting the judge and jury are much different in federal court than in a military commission.  In a military commission, the U.S. military handpicks the judge and selects the panel (the equivalent of a jury) from the enlisted military.  In federal court, judges are appointed for life before hearing any cases and the jury is picked from the general public.  Those in favor of federal court trials argue that these procedural steps will lead to a fairer trial for defendants.

 

As the son-in-law of Usama Bin Laden, Sulaiman Abu Ghaith’s trial will naturally catch the public’s eye.  The publicity will only be heightened by the controversy surrounding the Obama administration’s decision to try Abu Ghaith in federal court rather than in a military commission, the type of trial Guantanamo Bay was created specifically for.  With so many differences in procedural, evidential, and political matters, it will be interesting to see how the Abu Ghaith trial plays out.

Christopher Whitten, Research Fellow
Center for Policy & Research

Sulaiman Abu Ghaith Prosecution Begins in NYC

This morning Sulaiman Abu Ghaith, a son-in-law of Usama Bin Laden, pleaded not guilty to the charge of conspiracy to kill Americans. Interestingly, this took place not in a military commission at Guantanamo Bay, but in federal court in lower Manhattan, just a few blocks from the site of the 9/11 attacks.

While Abu Ghaith’s connection to the 9/11 attacks is disputed, he is charged with publicly praising the 9/11 attacks and supporting al Qaeda/UBL for nearly 15 years. Numerous sources cite him as being the most senior al Qaeda member to be tried in the United States.

Not surprisingly, the decision to hold his trial in federal court has drawn significant criticism from the press, politicians, and the public- and it was just announced yesterday. NYC Mayor Michael Bloomberg is quoted as saying “Would I prefer to have it [the prosecution of Abu Ghaith] elsewhere? I’m not going to get involved in that because I don’t want to make the president’s job any more difficult.” Other political leaders were not so diplomatic, Republican Senators Lindsey Graham and Kelly Ayotte described the Obama administration’s decision to prosecute Abu Ghaith in federal court as “sneaky” and contradictory to the will of Congress.

Today was just a simple 20-minute arraignment, but given the press and publicity Abu Ghaith has received thus far, his prosecution seems like it will be a lengthy and contentious process.

Kelly Ann Taddonio, Research Fellow
Center for Policy and Research

Redefining Victory in Afghanistan

Sometime in the last twelve years, someone moved the goalposts. We’ve gone from wanting to crush the Taliban like the backwater illiterates they are, to wanting to abide their trouble while we slowly secure the country.

And according to then-outgoing commander of our troops in Afghanistan, General John Allen, “This is winning, this is what victory looks like.”

What he did not add was that winning would look like this for years to come. 2014 has come to be seen as what one Afghan official has called a “magical date”, a make-or-break date by which the conflict will effectively be determined one way or the other. But the truth is that there is little reason to believe that it will all be sorted out by then.

This is a sad result for the most powerful military the world has ever seen, but realizing the limits of our ability to drive the outcome is an appropriate and helpful adjustment to the factual situation.

The time in which a decisive battlefield victory over Taliban was possible ended sometime in late 2001 or very early 2002, and was given up when we decided not to press Pakistan to seal off its border (or allow us to do so). Since then, the US and the Afghan government it helped into being have been engaged in a cross-border insurgency, and it is by the fundamental laws of insurgency that the conflict will be won or lost.

We need to abandon the naïve idea that we can crush the Taliban on the field of battle, and realize the truth that has been recognized by the Taliban since the beginning: winning will be determined by which side can be relied upon to provide basic governmental services like security and justice.

Chart-Afghan Issues

And while some may have read my earlier post as entirely pessimistic, there is reason to hope that Afghanistan is at least generally headed in the right direction. First, Afghans themselves are making the investment, in very real terms. According to General John Allen:

“[E]very Sunday when we’ve read the names of our Coalition dead, the Afghan National Army steps up to recognize the sons of Afghanistan, also who have sacrificed in this conflict.  And every week there are 25 or 35 or 45 killed in action and 50 or 60 or 70 wounded.  There can be no doubt that Afghanistan is investing in its own future.  The cost is paid in the blood of their finest young warriors.”

A report by CSIS indicates the total ANSF deaths are now well over 4,000, and it seems likely they are growing faster than those of ISAF.

In addition, the Afghan Army have been largely successful in keeping civilian casualties to a minimum, despite the increased combat pressure they are bearing and the fact that are not yet as professional as their mentors. According to the CSIS report:

“Between 1 January and 30 June, UNAMA documented 20 civilian deaths and 12 injured from search and seizure operations by Pro-Government Forces, a decrease of 27 percent compared with the same period in 2011. This is consistent with the downward trends documented in the same periods in 2009, 2010 and 2011. Civilian casualties as a result of ANSF and ISAF escalation of force incidents continued to decrease in 2012.”

The Afghan Government is also working to reduce its reputation for brutal interrogation and detention. For example, in response to recent reports detailing the prevalence of torture in Afghan detention centers, President Karzai has ordered that all interrogations be video recorded to ensure that the detainees are properly treated.

Such hard-fought successes can be short-lived, as can be seen in Karzai’s ban on ANSF calls for close air support in residential areas in response to an incident that caused severe collateral damage. However, this may be a good development in the long run. Remember that the Taliban cannot be defeated on the field of battle: the flip-side of that coin is that the Government can lose the population’s support by a too-aggressive approach. The French learned this same lesson in Algeria, where their brutal tactics won them a very shallow and self-defeating victory over their insurgent foes. Reducing civilian casualties is an important component of providing civilians a sense of security.

The other major good that the government must provide to the people in order to bolster its legitimacy and weaken the Taliban’s appeal is in the area of governance, justice and civil conflict resolution. Here, the vast majority of the damage done to its reputation has been entirely self-inflicted: endemic corruption in the courts and police has caused many in the south to turn to the Taliban to help them resolve their disputes with one another. While the Taliban verdicts are swift and harsh, they are also perceived as untainted by biased and corruption.

Unfortunately, there is little indication that the highest levels of the US or Afghanistan governments are very interested in tackling the corruption issue. Few official statements by either government ever mention the issue as more than a passing reference. Furthermore, little progress has been made in the past decade. Indeed, a recent report by the UN Office of Drugs and Crime found that while the number of Afghans who have to pay bribes has been dropping since 2009 (from 59% of Afghans to a mere 50%), the total cost of the corruption has risen 40%. And those who find themselves in the position where they must pay a bribe are subjected to higher bribes more often.

While there is good news in that there has been a 10% drop in the incidence of police bribery, this is counterbalanced by the fact that there has been no improvement in the judicial branch. Indeed, while the reporting rate of bribery appears to high by international standards, only one fifth of these reports lead to any investigation.

Since it’s speedy and reliable night courts are the one of the Taliban’s greatest selling points, it is imperative to Afghanistan’s long term stability that the epidemic of corruption be brought to heel. While it would be pie in the sky to think that success ending corruption could be quickly and easily be achieved by any means, the Afghan government and the US as its partner must secure steady and visible progress in reducing the corruption that impacts the day-to-day lives of Afghan citizens. This is perhaps especially important in the sectors that are mandated to combat corruption, such as the police and courts.

Thankfully, the lower levels of the US government have begun to take some steps in this direction. In the last few years, the Special Inspector General for Afghanistan Reconstruction (SIGAR) has quietly begun to tackle the US military’s enormous contribution to the climate of corruption (as well as some of its absurdly wasteful practices), while USAID’s Assistance for Afghanistan’s Anti-Corruption Authority program has helped Afghanistan develop its High Office of Oversight and supported civil watch-dog groups. Clearly, much more must be done, but it is precisely these sorts of quiet efforts that will prove most effective in the long run.

Pakistan’s Cooperation

Even if the Afghan government is able to reduce the corruption that encourages support for the Taliban, the insurgency will continue to drag on for years so long as they have a sanctuary in which to rest, recover, and prepare for the next operation. This is even more true if they may continue to rely on a state sponsor for support. Because of this, Pakistan plays a pivotal role in determining the longevity of the Taliban movement.

Thankfully, here too there is some reason for hope. With its increased internal instability, Pakistan has recently changed its strategic goal, limiting their references to “strategic depth” (read proxy government in Afghanistan) and calling instead for “power sharing” between the Afghan government and the Taliban. With its interest in stability along its border, the more Pakistan can be convinced that the Afghan state will not crumble in the wake of the US withdrawal, the less support it will provide to the opposition.

As with governance and security, progress in this regard will likely come in small and barely-noticeable form. It will not come as an announcement of a new policy or realignment on the part of Pakistan, but as changes in the attitudes of Pakistani leadership, declines in public support for the Taliban or in opposition to the US, or incremental reduction of support from the military.

This is What Victory Looks Like

Afghanistan has not been a stunning success by any metric. It was badly bungled, then pushed onto the back burner for years. By the time Americans noticed that it was still going on, the Taliban had regained much of their previous strength and had plenty of opportunity to hone their skills.

Yet it may yet be true that, from our current vantage point, this is what success looks like. Securing Afghanistan will require the long and tiring process of building state legitimacy while wearing down, coopting, and waiting out the insurgency.

“[O]ur victory here may never be marked by a parade or a point in time on a calendar when victory is declared.  This insurgency will be defeated over time by the legitimate and well-trained Afghan forces that are emerging today, who are taking the field in full force this spring.  Afghan forces defending Afghan people and enabling the government of this country to serve its citizens.  This is victory.  This is what winning looks like, and we should not shrink from using these words.”

General John Allen

Paul Taylor, Senior Research Fellow
Center for Policy & Research