Viva L' Espana

From the Guardian:

Criminal proceedings have begun in Spain against six senior officials in the Bush administration for the use of torture against detainees in Guantánamo Bay. Baltasar Garzón, the counter-terrorism judge whose prosecution of General Augusto Pinochet led to his arrest in Britain in 1998, has referred the case to the chief prosecutor before deciding whether to proceed.

The case is bound to threaten Spain's relations with the new administration in Washington, but Gonzalo Boyé, one of the four lawyers who wrote the lawsuit, said the prosecutor would have little choice under Spanish law but to approve the prosecution.

"The only route of escape the prosecutor might have is to ask whether there is ongoing process in the US against these people," Boyé told the Observer. "This case will go ahead. It will be against the law not to go ahead."

In truth, Eric Holder and the Justice department have little choice under US law but to prosecute the torturers. Under Article 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is the supreme law of the land in the US:

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The article names the alleged torturers as

Alberto Gonzales, a former White House counsel and attorney general; David Addington, former vice-president Dick Cheney's chief of staff; Douglas Feith, who was under-secretary of defence; William Haynes, formerly the Pentagon's general counsel; and John Yoo and Jay Bybee, who were both senior justice department legal advisers.

...

And then there is this

Obama administration officials have confirmed that they believe torture was committed by American interrogators. The president has not ruled out a criminal inquiry, but has signalled he is reluctant to do so for political reasons.

How exactly is it that the President can decide whether a criminal act is prosecuted or not. I understand he has the right to pardon but from this it seems he is taking on the right to decide whether to prosecute. It seems the days of the Attorney General being the lawyer for the President, rather than the lawyer for the people, did not end with Alberto Gonzales.

Brilliant?

Poking around on the internets I found this article by Stephen Walt in which he includes this statement:

The Bush administration started off brilliantly in Afghanistan in the fall of 2001 by toppling the Taliban from power without having to mount a large-scale invasion with U.S. troops.

Stephen Walt is not just any old blogger but the Robert and Renée Belfer Professor of International Relations at Harvard University, so seeing such an idiotic statement coming from him was disconcerting.

The US had initially said that they had evidence connecting Bin Laden to the September 11 attacks and would be providing that evidence as part of a demand for the Taleban to hand him over. By initially saying that and then not following through the US put question marks where none needed to be. To offer the evidence first then back down was a lot worse then simply making a demand for Bin Laden's head because it hurt the factions within the Taleban - never a particularly monolithic group - that would have used it as an opportunity to weaken Mullah Omar. But the US was in full unilateral mode at that time. The Bush administration instead of capitalizing on the global revulsion caused by the murderous assaults of 9/11 laid the seeds for the conflict raging today. The US proceeded with high altitude bombings which lead to civilian deaths - IIRC the first wedding party bombing was from around this time. The outrage over the civilian deaths was in large part responsible for the victory of the collection of religious parties, the MMA, in the Pakistani provinces bordering Afghanistan. These provincial governments would play a significant role in helping the Afghan Taleban develop sanctuaries on the Pakistani side of the border. Because of the lack of troops on the ground the US could not stop the Northern Alliance from entering Kabul further alienating the Pushtoon population and allowing the NA warlords to establish a hold that they have never relinquished. A hold which has contributed significantly to the corruption that the US now rails against. The increasing presence of India, which had backed the Northern Alliance inflamed the paranoia of the Pakistani Army whose support we needed and established facts on the ground that will be hard to reverse.

How anyone can look at the stupid blunderings of the Bush administration in Afghanistan, initial or otherwise, and call it brilliant is beyond my ken. I suppose which is why I am not the Robert and Renée Belfer Professor of International Relations at Harvard University, and Stephen Walt is.

Its just not a slogan

Haaretz has a story about the "most moral army." Lawrence of Cyberia puts the story in context.

JDL vs. George Galloway

The British MP George Galloway has been banned from entering Canada supposedly for his views on Afghanistan ... or maybe not. (h/t Pulse)



The FBI calls the JDL a "right-wing terrorist group."

Finally, some good news

This is indeed good news:

ISLAMABAD, March 16 (Reuters) - Pakistan's government agreed on Monday to reinstate Iftikhar Chaudhry as chief justice to defuse a political crisis and end street agitation that threatened to turn into violent confrontation, officials said.

"Chaudhry will be restored, and there will also be a constitutional package," a government official with knowledge of the deal told Reuters.

...

Zardari finally conceded as the opposition leader and the lawyers held a day of protest in Lahore on Sunday, and set off for Islamabad for the climax of a series of protests they had dubbed "the Long March".

To stop them driving into Islamabad, authorities positioned containers and trucks across roads outside the capital.

Paramilitary troops are camped in a city sports complex and deployed at entry points, while, officials say, the army has been put on stand-by.

Pressure on the government has been growing for a while with the Pakistani news media (one of Musharraf's good legacies) focusing more and more attention on the "long march." The governments attempts to silence the media lead to the resignation of the information minister. Various senior members of the civilian bureaucracy resigned on Sunday to protest government suppression of the protesters. The civil society organizations and the various student organizations had also increased their pressure. Regardless, I think the deciding factors were probably the last point in the news report about the army being put on stand-by, and pressure from the US government. The army at various times in Pakistan's history has been brought out to put down popular unrest and the results have never been good - for the country or the army. The army is in a particularly vulnerable state right now with the mismanagement of the economy as well as their incompetent handling of the extremist threat fresh in people's minds. The US government has other things on its mind - most of them not good for Pakistan - and it really did not want the country's political unrest to interfere with their plans.

While this is good news it is hardly a panacea for all that ails Pakistan. Progress will not occur until the "feudals" are ready to give up some of their power to the people. The restoration of the chief justice might be an indication that the ruling elites are finally waking up to the fact that the collapse of Pakistan will probably mean a collapse of their lifestyles as well. At least one hopes that they are rational enough to see that. Rageh Omaar, in his book talks about how middle class Somali welcomed the armed uprisings in Somalia seeing them more as an adventure than anything else. They never thought their own positions in society could ever be shaken. This seems to be the story told by every elite to itself as the world falls to pieces around them. Perhaps the Pakistani elite will turn out to be smarter than their Somali counterparts.

Criminal Accountability

Richard Falk, professor emeritus of international law at Princeton University and UN Special Rapporteur on Palestinian human rights is hopeful that there will be some actual repercussion to Israel's slaughter in Gaza. He sees the recent (and continuing) slaughter as different from previous Israeli use of force (h/t Pulse):

In my view, what made the Gaza attacks launched on 27 December different from the main wars fought by Israel over the years was that the weapons and tactics used devastated an essentially defenceless civilian population. The one-sidedness of the encounter was so stark, as signalled by the relative casualties on both sides (more than 100 to 1; 1300-plus Palestinians killed compared with 13 Israelis, and several of these by friendly fire), that most commentators refrained from attaching the label “war”.

...

The Gaza operation brought these concerns to the fore as it dramatised this shift away from fighting states to struggles against armed resistance movements, and with a related shift from the language of “war” to “criminality”. In one important respect, Israel managed to skew perceptions and discourse by getting the media and diplomats to focus the basic international criminal law question on whether or not Israeli use of force was “disproportionate”.

This way of describing Israeli recourse to force ignores the foundational issue: were the attacks in any legal sense “defensive” in character in the first place? An inquiry into the surrounding circumstances shows an absence of any kind of defensive necessity: a temporary ceasefire between Israel and Hamas that had been in effect since 19 July 2008 had succeeded in reducing cross-border violence virtually to zero; Hamas consistently offered to extend the ceasefire, even to a longer period of ten years; the breakdown of the ceasefire is not primarily the result of Hamas rocket fire, but came about mainly as a result of an Israeli air attack on 4 November that killed six Hamas fighters in Gaza.

...

The Gaza form of encounter almost by necessity blurs the line between war and crime, and when it occurs in a confined, densely populated area such as Gaza, necessarily intermingles the resistance fighters with the civilian population. It also induces the resistance effort to rely on criminal targeting of civilians as it has no military capacity directly to oppose state violence. In this respect, the Israeli attacks on Gaza and the Hamas resistance crossed the line between lawful combat and war crimes.

These two sides should not be viewed as equally responsible for the recent events. Israel initiated the Gaza campaign without adequate legal foundation or just cause, and was responsible for causing the overwhelming proportion of devastation and the entirety of civilian suffering. Israeli reliance on a military approach to defeat or punish Gaza was intrinsically “criminal”, and as such demonstrative of both violations of the law of war and the commission of crimes against humanity.

There is another element that strengthens the allegation of aggression. The population of Gaza had been subjected to a punitive blockade for 18 months when Israel launched its attacks. This blockade was widely, and correctly, viewed as collective punishment in a form that violated Articles 33 and 55 of the Fourth Geneva Convention governing the conduct of an occupying power in relation to the civilian population living under occupation. This policy was itself condemned as a crime against humanity, as well as a grave breach of international humanitarian law.

It also had resulted in serious nutritional deficiencies and widespread mental disorders on the part of the entire Gaza population, leaving it particularly vulnerable to the sort of “shock and awe” attack mounted by Israel from land, air and sea. This vulnerability was reinforced by Israel’s unwillingness to allow Gaza civilians to seek safety while the tiny Strip was under such intense combat pressure. Two hundred non-Palestinian wives were allowed to leave, which underscored the criminality of locking children, women, the sick, elderly and disabled into the war zone, and showed its ethnically discriminatory character. This appears to be the first time in wartime conditions that a civilian population was denied the possibility of becoming refugees.

He presents and dismisses the various possible recourse to international law.

What seems reasonably clear is that despite the clamour for war crimes investigations and accountability, the political will is lacking to proceed against Israel at the inter-governmental level, whether within the UN or outside. The realities of geopolitics are built around double standards when it comes to war crimes. It is one thing to proceed against Saddam Hussein or Slobodan Milosevic, but quite another to go against George W Bush or Ehud Olmert. Ever since the Nuremberg trials after the second world war, there exists impunity for those who act on behalf of powerful, undefeated states and nothing is likely to challenge this fact of international life in the near future, thus tarnishing the status of international law as a vehicle for global justice that is consistent in its enforcement efforts. When it comes to international criminal law, there continues to exist impunity for the strong and victorious, and potential accountability for the weak or defeated.

In the end he lays his hopes on international legitimacy

In the end, the haunting question is whether the war crimes concerns raised by Israel’s behaviour in Gaza matters, and if so, how. I believe it matters greatly in what might be called “the second war” – the legitimacy war that often ends up shaping the political outcome more than battlefield results. The US won every battle in the Vietnam war and lost the war; the same with France in Indochina and Algeria, and the Soviet Union in Afghanistan. The Shah of Iran collapsed, as did the apartheid regime in South Africa, because of defeats in the legitimacy war.

It is my view that this surfacing of criminal charges against Israel during and after its attacks on Gaza resulted in major gains on the legitimacy front for the Palestinians. The widespread popular perceptions of Israeli criminality, especially the sense of waging war against a defenceless population with modern weaponry, has prompted people around the world to propose boycotts, divestments and sanctions. This mobilisation exerts pressure on governments and corporations to desist from relations with Israel, and is reminiscent of the worldwide anti-apartheid campaign that did so much to alter the political landscape in South Africa. Winning the legitimacy war is no guarantee that Palestinian self-determination will be achieved in the coming years. But it does change the political equation in ways that are not fully discernable at this time.

The global setup provides a legal framework capable of imposing international criminal law, but it will not be implemented unless the political will is present. Israel is likely to be insulated from formal judicial initiatives addressing war crimes charges, but will face the fallout arising from the credibility that these charges possess for world public opinion. This fallout is reshaping the underlying Israel/Palestine struggle, and giving far greater salience to the legitimacy war (fought on a global political battlefield) than was previously the case.

Where do we go from here

There is a lot of talk in the US press about what to do about Pakistan. In this most militaristic of societies most of the options have something to do with military force. This makes sense if we consider that we are planning to spend somewhere near a trillion dollars on "defense." If you pay that much for something you want to use it. As Madeleine Albright put it "What’s the point of you saving this superb military for, Colin, if we can't use it?" The long term and the not so long term effect of the further militarization of the region will be disastrous, for us and certainly for the hapless Pakistanis. But what then is a superpower to do. Mosharraf Zaidi, a columnist for the Pakistani newspaper The News has a modest suggestion: support the one sector of the Pakistani society that made a difference - the lawyers. You really should read the entire column but here are some extracts: ( Daniel Markey - Senior Fellow for India, Pakistan, and South Asia at the Council on Foreign Relations - had previously suggested to the Bush administration that they not back off their support for General Musharraf. Michael Scheuer, despite having a rather fascist view of the world, became somewhat of a darling of the progressives because of his disdain for the Bush administration handling of the issue of terrorism. )

Daniel Markey suggests to President Obama that his country should "prepare for that unwelcome contingency by formulating a list of its highest-priority demands for any new military regime, including, but not limited to, a timeline and plans for Pakistan's return to constitutional democracy." Say again, Dan? Surely you have been asleep for about a decade. Surely you didn't just give the closest thing to a reverse Amber Alert for another military disaster in Pakistan's unfortunate history.

Surely, the Foreign Policy magazine website has been hacked by the regressive strains within the ISI. Surely, no red-blooded American whose job it is to understand Pakistan, would suggest, in year 2009, that Pakistan has no choice but to turn to its military to solve problems that require political solutions.

Markey's not alone. In an interview with the BBC over the weekend, the former head of the CIA's Bin Laden unit, Michael Scheuer, was livid with his own government for having pressured Gen Musharraf to hold elections and give up his hold on power. With the country in turmoil at home and with friends like Markey and Scheuer, it is hard to have any confidence at all in the future. No one, however, should quite yet start planning the parade route for Al-Qaeda in Pakistan.

...

As long as there is hope that Pakistan's rightful chief justice may yet be restored, there is hope that Pakistan will overcome.

Pakistan is lucky that the world is not painted entirely in the post-modern Orientalism of the Micheal Scheuers of the world. No matter how much protocol low-level representatives of the great world powers receive in Pakistan, this country is not entirely run by the telegrams they send and receive. Americans that delude themselves into thinking that the US has done Pakistan any favours by locking itself in an unsustainable and ignorant embrace with the PPP, should think again. There is nothing quite so un-American as the tolerance of injustice. And there is nothing quite so unjust as the continued absence of Iftikhar Choudhry from the Supreme Court as the decider-in-chief.

The reality is that politicians did not bring democracy back to Pakistan--neither the assassinated Shaheed Benazir Bhutto, heroic and iconic as she was, nor Nawaz Sharif, who is morphing into the same kind of icon as his one-time nemesis. Nor is it any kind of support from the United States government that enabled democracy to rear its unstable, unmanageable, yet glorious and beautiful head forward once more in Pakistan. Democracy came back to Pakistan on the back of several hundred thousand black coats. Those coats have been delayed, and denied, and deferred. Now, by suggesting that it was somehow Uncle Sam that forced Gen Musharraf to retreat to retired life, analysts do a great disservice to Pakistan.

The iron will of an ordinary (perhaps, painfully ordinary) judge defeated the proud and exceptionally talented Gen Musharraf. That will is what steels the lawyers' movement and its resolve for the judge's restoration. Every politician, capitalist, general, diplomat and mullah fears the judge. There are some good reasons to fear him. But there is no reason to deny him the opportunity to be restored. He is the legal and moral Chief Justice of Pakistan.

The big question now about what do with Pakistan is not one that is formulated in punitive language. Smart people in New Delhi, London, Washington DC and Riyadh recognise that Pakistan has punished itself enough. And the smartest ones know that the tools for that punishment have often been sharpened for Pakistan by their countries' governments. The era of blame and punish Pakistan is coming to a close not because it should, or because Pakistanis have somehow won the unwinnable war of perception. It is because Pakistan has gone from flirting with danger and dancing perilously close to the edge, to actually being in free fall. This player has gone off the reservation.

If ever there was a time to get real, and to get real serious about Pakistan, it is now. There is a lot more political instability where Salmaan Taseer has come from. But if Pakistan is to exist in any way as a stable country, order must be restored. That is an awfully short conversation. It starts with the Chief Justice, and ends with the 1973 Constitution.

American spokespeople who feign neutrality can take MSNBC and Fox News for a ride all they please. But they mustn't take the Pakistani people for fools. The firing of Shahbaz Sharif, and the imposition of Governor's Raj in Punjab is not "an internal matter for Pakistan." Not when American engineers are playing Missile Command in Jalalabad, as they navigate Predator drones, and drop bombs on Pakistan, with their remote-control joysticks. Once you penetrate something the way those drones have penetrated Pakistan, you are internal to Pakistan. Therefore, Pakistan's internal matters are America's matters.

The most gripping, most urgent, and most dangerous matter for American foreign policy is the continued free fall of Pakistan from a country that can fake it well, to a country that can't tell what time of day it is. The only parachute Pakistan can deploy is to restore the chief justice.

Will he beat the terrorists? Make peace with India? Restore sanity to FATA? Beat back Sufi Mohammad from Swat? Educate little girls? Vaccinate families? No. Those things are not his job. He will do his job. To dispense justice from his desk.

To see the gavel in his hand, and the gown back on his shoulder, will inspire the kind of confidence in this grief- and panic-stricken nation that Sherry Rehman and the advisory brigade of the PPP never will. That kind of confidence in the state is the beginning of the end for the Taliban and Al-Qaeda in Pakistan.

Liberation

Hearts and minds baby, hearts and minds! (from Lenin's Tomb)