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Police Misconduct Is a Problem. Computer Scientists Could Be a Big Part of the Solution. Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=28887"><span class="small">Lauren C. Williams, ThinkProgress</span></a>   
Tuesday, 23 February 2016 09:14

Williams writes: "Ramachandran works with an interdisciplinary startup project at Stanford University called Law, Order, and Algorithms, which is compiling the demographic data police officers collect during routine traffic stops."

A police officer checks in on a fellow officer during a traffic stop. (photo: Richard Burkhart/Savannah Morning News)
A police officer checks in on a fellow officer during a traffic stop. (photo: Richard Burkhart/Savannah Morning News)


Police Misconduct Is a Problem. Computer Scientists Could Be a Big Part of the Solution.

By Lauren C. Williams, ThinkProgress

23 February 16

 

ut-wrenching video footage of police officers killing unarmed black people or using excessive force has become an everyday reality. With each video, law enforcement officials insist these killings are rare and committed by a few bad actors. The problem is, no one really knows for sure.

But two new data projects funded by the Knight Foundation are primed to change that. Groundbreaking new tools could enhance police accountability by making once-scattered police data open to the public.

Why Police Data Is So Elusive

“Right now, there’s not even a comprehensive look at all 50 states and what data is collected [by police] and what they do with that data,” said Vignesh Ramachandran, a data journalist and managing editor at Stanford’s Peninsula Press.

Police data in any form is hard to come by. Media organizations and federal law enforcement agencies are the primary sources for data on police conduct, such as officer-involved shootings.

But the information collected by the government typically relies on voluntary self-reporting. That system often leads to information being withheld, incomplete, and inconsistent across law enforcement agencies.

Even recent attempts to make government-collected police data more robust, fall short by relying on volunteered information rather than a mandate. The White House launched its police data initiative last year, which allows law enforcement agencies to voluntarily share data regarding officer-involved shootings, incidents, assaults on police, and 911 calls through the Public Safety Open Data Portal.

The FBI is planning to revamp its highly criticized database that tracks fatal police shootings by 2017. The system, which only recorded deadly gun incidents from 3 percent of the nation’s police department, will soon include all serious injuries and deaths caused by police officers, expanding the database beyond officer shootings. The system, however, will still rely on voluntary reporting and may only capture a fraction of incidents.

“The anecdotal stories are always very compelling, firing us all up,” Ramachandran said. But backing up those stories with the raw data enhances those accounts in a new way by statistically showing how the rest of country experiences police stops and pinpointing disparities.

Getting The Numbers On Driving While Black

Fatal confrontations with the police don’t always involve suspicion of a violent crime like armed robbery. They occur during routine traffic stops: Walter Scott of Charleston, South Carolina was shot by a police officer after being pulled over for a broken brake light. Sandra Bland was violently wrestled to the ground by a Texas police officer who pulled her over for improper signaling. She was later found hanging in a jail cell three days after the arrest.

Scott’s and Bland’s deaths after traffic stops escalated were only brought to light because civilians filmed them. But exactly how often these kinds of encounters go wrong is still a murky question.

Ramachandran is trying to make it possible for the public to answer that question. He works with an interdisciplinary startup project at Stanford University called Law, Order, and Algorithms, which is compiling the demographic data police officers collect during routine traffic stops.

“Most of the time it’s innocuous when people are pulled over for speeding,” said Sharad Goel, an assistant computer engineering professor at Stanford University, who also leads the Law, Order, and Algorithms project. “At the same time it’s not clear what’s happening the rest of the time.”

Racial disparities are particularly stark in how traffic law is enforced. In McKinney, Texas, where a young black girl at a pool party was assaulted by a police officer in 2015, white people were were disproportionately ticketed less often than African Americans. Nearly half of all tickets McKinney police issued from 2013 to 2014 were for black drivers, when African Americans only count for a third of the population.

In the case of Walter Scott, officer Michael Slager argued through his attorney that the North Charleston Police Department’s quota system was to blame. The department’s policy mandates that officers make three traffic stops each day and failing to do so could result in a loss of promotion or earned time off. But that same policy was shown to disproportionately target low income residents of color.

The Stanford project, which received a $310,000 grant from the Knight Foundation, has collected information for more than 50 million highway traffic stops across 11 states through public records requests. When it’s up and running, the database will allow media and the public to see where stops are happening, who’s involved, the reason for the stop, and pinpoint down to a county level where discrimination could be a problem.

But the group is still in the midst of cleaning up the data it has already and won’t have preliminary results until the Spring. “It sounds like measuring discrimination would be easy but it’s difficult,” Goel said. “There are a lot of gray areas.”

Piercing The ‘Blue Wall’

Discrimination in police encounters spans more than traffic stops. One of the only ways to document any kind of police misconduct is to file an official complaint.

Every police department has misconduct complaints, but filing and getting access to them isn’t always easy: There’s often a layered bureaucratic process to file complaints, requiring citizens to take off work to get a signed affidavit. And depending on the state, those records aren’t public. Only 12 states require complaints to be a part of the public record, compared to 23 states that keep them confidential, according to data compiled by WNYC.

The Chicago Police Department has been at the center of the debate. The department has been fraught with controversy over discriminatory practices and for failing to discipline police officers who get complaints. The Citizens Police Data Project — a joint venture run by the Experimental Station and the Invisible Institute — is trying to address the issue and released a data tool in November that allows the public to access four years’ worth of Chicago police complaints. But getting the metadata for those 56,000 complaints has hasn’t been easy.

“The story of our data project began about a decade ago, when our founder Jamie Kalven was reporting on the last high-rise housing projects in Southside Chicago,” said Alison Flowers, an investigative journalist with the Invisible Institute, a media production company in Chicago. “He interviewed a resident Diane Bond who said she was sexually assaulted by police and repeatedly harassed,” by a group of officers nicknamed the Skullcap crew.

With Kalven’s help, Bond filed a complaint and a lawsuit against five officers in the Chicago Police Department in 2004. During the course of the trial, Bond’s lawyers asked for a list of police officers who received the most complaints — four of the five accused police officers were on it. But those documents were sealed until 2014, when the Illinois Appellate Court ruled that police misconduct records should be publicly available.

“The work that has brought us to this point has been lean and largely unfunded,” Flowers said, indicating that the legal battle is still going on. Only records from the past four years were released after the 2014 court decision, but all archived misconduct records were requested.

CPDP’s database doesn’t reveal the content of each complaint but allows users to search for currently employed CPD officers by name or badge number to see the reason for the complaint, such as evidence tampering, discharge weapon, use of force, or profanity. A preliminary analysis of the data shows less than 3 percent of complaints end in disciplinary action and the more complaints an officer has, the less likely he or she will be disciplined.

Despite a spotlight on its legal battles, the Chicago police trying to purge misconduct complaints. The Fraternal Order of Police demanded the city destroy complaints older than five years. There’s now a fight over whether records dating back to 1967 could be made publicly available — and ultimately a part of the Citizens Police Data Project — or permanently deleted.

“It would be easy to say we’re anti-police; that’s really not the case,” Flowers said. “We want this tool to promote public safety and to weed out the officers who are contributing to a culture of cover-up in the Chicago Police Department.”

But the data has some good news: About 80 percent of CPD officers receive fewer than four complaints over the course of their career. Ninety percent have fewer than 10 complaints. “It’s not exactly a few bad apples, but it’s not the whole crop,” she said. “It’s barrels of bad apples and they need to be disciplined, some need to be terminated.”

CPDP is still waiting for archived complaints but in the meantime is planning to use their $400,000 grant from the Knight Foundation to build an app that makes it easy for people to file complaints against police officers and incorporate other datasets into the program.

So far, the data has highlighted a concentration of misconduct complaints in the predominantly black South and West sides of Chicago, Flowers said. The project plans to incorporate other demographics — race, gender, socioeconomics, geography, test scores, and public health data — to get a better look at the “abandonment in these communities.”

Data has the potential to improve police interactions with the public nationwide. Police departments already use historical crime data and heat maps to pinpoint where the next 911 call might come from. But data projects focused squarely at police conduct could empower citizens and improve police policy in a way media stories alone can’t.

“We’re living in a complex age with so much data. There is a need now for projects that use data and allow people to make decisions about their own lives,” the Knight Foundation’s VP of media innovation John Bracken told ThinkProgress. “People can learn about the safety of their own bodies and their own person…We’ve always known that these problems exist but both of these projects take us to a place [based on evidence].”


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Debt and Drugs: A Toxic Colonial Legacy for Puerto Rico Print
Tuesday, 23 February 2016 09:13

Lydersen writes: "Drug addiction rates in Puerto Rico are sky high, with an estimated 60,000 intravenous drug users. Injection drug use has fueled HIV and hepatitis C infection rates among the highest in the Western Hemisphere."

Health care, affordable housing and drug treatment services have long been severely lacking in Puerto Rico, and the debt crisis is making the situation much worse. (photo: Bill Healy)
Health care, affordable housing and drug treatment services have long been severely lacking in Puerto Rico, and the debt crisis is making the situation much worse. (photo: Bill Healy)


Debt and Drugs: A Toxic Colonial Legacy for Puerto Rico

By Kari Lydersen, teleSUR

23 February 16

 

The island’s debt crisis and subsequent austerity cuts are exacerbating social problems.

nder a century-old law called the Jones Act, all of Puerto Rico’s imports must come from American ships with American crews. Cargo can’t be purchased and offloaded directly from foreign ships – even if they pass Puerto Rico on their way to mainland ports. The severely inflated prices that result are one more reason that Puerto Ricans see the debt crisis, their dire economic outlook and their colonial status as all intertwined.

But one commodity proves a glaring exception to the import rule: illegal drugs that land in Puerto Rico in massive quantities, from Colombia and other parts of South America and the Caribbean.  

Puerto Rico has long been a major transfer point for drugs thanks to its location and status as a U.S. Commonwealth. Once contraband makes it onto the island’s shores, it can be transported to the mainland with relatively little scrutiny.

The drugs don’t pass through without leaving their mark on the island, however. Drug addiction rates in Puerto Rico are sky high, with an estimated 60,000 intravenous drug users. Injection drug use has fueled HIV and hepatitis C infection rates among the highest in the Western Hemisphere.

Drugs are also the spark for Puerto Rico’s epidemic levels of street violence, including a murder rate that is still four times the U.S. average, even after dropping in recent years. Police officials and studies frequently report that more than two-thirds of murders are drug-related.  

Health care, affordable housing and drug treatment services have long been severely lacking in Puerto Rico, and the debt crisis is making the situation much worse as social services are slashed, government jobs – a mainstay of the island’s economy – are eliminated, and people flee to the mainland. There is a dire health care crisis, with federal health care cuts of up to $3 billion looming along with the possible collapse of Medicaid and Medicare on the island.

The lovely streets of Old San Juan showcase the very different sides of Puerto Rico. The area teems with tourists, who walk without a second glance past destitute people in rags, struggling to scrounge enough money to feed their addictions and to simply stay alive. A plethora of police officers and private security guards patrol Old San Juan to keep it safe and attractive for tourists.

With local residents, law enforcement takes a much different approach. The police department is under federal monitor because of widespread abuse and corruption, revealed by the ACLU in an extensive 2012 report. Nonetheless the problems with police have continued; for example in September, 10 officers were charged with planting evidence, stealing drugs and other misconduct.

The ACLU documented police abuses surrounding a 2011 major drug raid in La Perla, a hardscrabble neighborhood in Old San Juan that clings to the seaside. Tourist guidebooks describe it as a terrifyingly dangerous slum, but in reality, residents say theirs is a vibrant and tight-knit community struggling to survive where jobs are few, and the drug trade is a base of the economy. Neighborhoods like La Perla show how the colonial economy of tourism and tax-free industry once located on the island has failed to sustain regular Puerto Ricans, trapping them in a financial crisis that started long before the debt debacle made headlines on the mainland.

Rafael Torruella is the executive director of the needle exchange and drug policy organization Intercambios Puerto Rico, a San Juan native who cut his teeth on harm reduction work in New York City.

He sees the addiction, health and homelessness crises as directly linked to the island’s colonial status, degraded economy and drastically punitive criminal justice policies that seem designed more to control than to serve the population. He notes that in Puerto Rico simple possession of marijuana in a “recreational area” can bring a 10-year prison sentence. Meanwhile, research shows that more than eight in 10 of Puerto Rican inmates have hepatitis C, as drugs are readily available behind bars but inmates share sparse needles.

Along with sending addicts to jail and prison, Puerto Rican authorities regularly send people with addictions off the island.

Hundreds have been sent to treatment programs in the mainland U.S., including questionable facilities that lack medical staffing and evidence-based treatment and rely on systematic shaming and emotional abuse. As an investigation by journalist Adriana Cardona-Maguigad showed last year, scores of Puerto Ricans have been sent to unlicensed, questionable rehab centers in Chicago, many of them ending up homeless and desperate in a city where they have no safety net.

Puerto Rican authorities readily acknowledge that they send people to these and other treatment centers on the mainland. “There finding work is easier, we have a small island,” said Alexander Santiago Martinez, an administrator of the Nuevo Amanecer program in the city of Bayamon.

But Puerto Rican authorities have provided no evidence to show their charges find work on the mainland, and the phenomenon equates to the island exporting its social problems. This could be seen as only fair, given that the colonial relationship with the U.S. is interwoven with the island’s problems. But for individuals it can mean a limbo-like existence moving between the two locations, without needed resources at home and cast adrift without community on the mainland.

There is a serious shortage of substance abuse-related resources and health care on the island. Public institutions make up only a small fraction of the treatment that is available, with those scant options surely in the cross hairs of debt-related cuts. The vast majority of harm reduction and drug treatment work is done by private providers often operating on shoestring budgets.

Intercambios Puerto Rico and the organization Iniciativa Comunitaria are among a coalition of harm reduction organizations that offer needle exchange, food and basic health services to the homeless, drug users, sex workers and other vulnerable, disenfranchised people. Their staff and volunteers ply the streets and shooting galleries, offering aid and moral support. On one such “ronda” in February, volunteers with Iniciativa Comunitaria shared stories and songs with a wizened heroin user, cleaned skin ulcers, collected dirty needles and disbursed clean ones, served soup to men huddled in shuttered marketplaces or young women waiting to sell their bodies.

Iniciativa Comunitaria, which also runs detox and rehab centers, suffered a significant cut in Puerto Rican government funds last year, forcing them to close two programs including day care for homeless families and case work, said spokesperson Yorelys Rivera.

“Most of the nonprofits are suffering” in the current economic crisis, she said. “This is the reality we live in.”

The people on the streets of San Juan – like most Puerto Ricans – talk about “the U.S.” as a different country entirely. Many have lived in the mainland United States, working factory or service jobs, staying with family, or sent for drug treatment. They’ve ended up homeless back in Puerto Rico because of a web of factors – no jobs or affordable housing, criminal records, mental illness and substance abuse.

“With the economic crisis, the social crisis is growing, more people are ending up in the street,” said Eduardo Vazquez, a volunteer leader of the ronda.  

As harsh as the cuts have already been, more drastic measures are sure to come as Puerto Rico tries to pay its debts and the hemorrhaging of population off the island reduces the tax base and shrinks the local economy. For those on the streets with addiction and illness, the future looks grim. And it appears their ranks will only be growing.

“Eliminating public services like public transportation deprives the most marginalized communities,” says a flier distributed by Intercambios as part of its Decriminalization campaign to end the drug war. “It creates empty cities abandoned to the mercy of crime. And closing schools leads to school dropouts, unemployment, violence and other problems, with high social costs for the country.”


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Washington's Twenty-First-Century Opium Wars Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=29152"><span class="small">Alfred McCoy, TomDispatch</span></a>   
Monday, 22 February 2016 13:43

McCoy writes: "For more than three decades in Afghanistan, Washington's military operations have succeeded only when they fit reasonably comfortably into Central Asia's illicit traffic in opium, and suffered when they failed to complement it."

A soldier standing next to a field of opium poppies. (photo: Andrew Burton/Getty Images)
A soldier standing next to a field of opium poppies. (photo: Andrew Burton/Getty Images)


Washington's Twenty-First-Century Opium Wars

By Alfred McCoy, TomDispatch

22 February 16

 

n October 2001, the U.S. launched its invasion of Afghanistan largely through proxy Afghan fighters with the help of Special Operations forces, American air power, and CIA dollars.  The results were swift and stunning. The Taliban was whipped, a new government headed by Hamid Karzai soon installed in Kabul, and the country declared “liberated.”

More than 14 years later, how’d it go? What’s “liberated” Afghanistan like and, if you were making a list, what would be the accomplishments of Washington all these years later?  Hmm... at this very moment, according to the latest reports, the Taliban control more territory than at any moment since December 2001.  Meanwhile, the Afghan security forces that the U.S. built up and funded to the tune of more than $65 billion are experiencing “unsustainable” casualties, their ranks evidently filled with “ghost” soldiers and policemen -- up to 40% in some places -- whose salaries, often paid by the U.S., are being pocketed by their commanders and other officials.  In 2015, according to the U.N., Afghan civilian casualties were, for the seventh year in a row, at record levels.  Add to all this the fact that American soldiers, their “combat mission” officially concluded in 2014, are now being sent by the hundreds back into the fray (along with the U.S. Air Force) to support hard-pressed Afghan troops in a situation which seems to be fast “deteriorating.”

Oh, and economically speaking, how did the “reconstruction” of the country work out, given that Washington pumped more money (in real dollars) into Afghanistan in these years than it did into the rebuilding of Western Europe after World War II?  Leaving aside the pit of official corruption into which many of those dollars disappeared, the country is today hemorrhaging desperate young people who can’t find jobs or make a living and now constitute what may be the second largest contingent of refugees heading for Europe.

As for that list of Washington’s accomplishments, it might be accurate to say that only one thing was “liberated” in Afghanistan over the last 14-plus years and that was, as TomDispatch regular Alfred McCoy points out today, the opium poppy.  It might also be said that, with the opium trade now fully embedded in both the operations of the Afghan government and of the Taliban, Washington’s single and singular accomplishment in all its years there has been to oversee the country’s transformation into the planet’s number one narco-state.  McCoy, who began his career in the Vietnam War era by writing The Politics of Heroin, a now-classic book on the CIA and the heroin trade (that the Agency tried to suppress) and who has written on the subject of drugs and Afghanistan before for this site, now offers a truly monumental look at opium and the U.S. from the moment this country’s first Afghan War began in 1979 to late last night. Tom

How a Pink Flower Defeated the World’s Sole Superpower
America’s Opium War in Afghanistan

By Alfred W. McCoy

After fighting the longest war in its history, the United States stands at the brink of defeat in Afghanistan. How can this be possible? How could the world’s sole superpower have battled continuously for 15 years, deploying 100,000 of its finest troops, sacrificing the lives of 2,200 of those soldiers, spending more than a trillion dollars on its military operations, lavishing a record hundred billion more on “nation-building” and “reconstruction,” helping raise, fund, equip, and train an army of 350,000 Afghan allies, and still not be able to pacify one of the world’s most impoverished nations? So dismal is the prospect for stability in Afghanistan in 2016 that the Obama White House has recently cancelled a planned further withdrawal of its forces and will leave an estimated 10,000 troops in the country indefinitely.

Were you to cut through the Gordian knot of complexity that is the Afghan War, you would find that in the American failure there lies the greatest policy paradox of the century: Washington’s massive military juggernaut has been stopped dead in its steel tracks by a pink flower, the opium poppy.

For more than three decades in Afghanistan, Washington’s military operations have succeeded only when they fit reasonably comfortably into Central Asia’s illicit traffic in opium, and suffered when they failed to complement it. The first U.S. intervention there began in 1979. It succeeded in part because the surrogate war the CIA launched to expel the Soviets from that country coincided with the way its Afghan allies used the country’s swelling drug traffic to sustain their decade-long struggle.

On the other hand, in the almost 15 years of continuous combat since the U.S. invasion of 2001, pacification efforts have failed to curtail the Taliban insurgency largely because the U.S. could not control the swelling surplus from the county’s heroin trade. As opium production surged from a minimal 180 tons to a monumental 8,200 in the first five years of U.S. occupation, Afghanistan’s soil seemed to have been sown with the dragon’s teeth of ancient Greek myth. Every poppy harvest yielded a new crop of teenaged fighters for the Taliban’s growing guerrilla army.

At each stage in Afghanistan’s tragic, tumultuous history over the past 40 years -- the covert war of the 1980s, the civil war of the 1990s, and the U.S. occupation since 2001 -- opium played a surprisingly significant role in shaping the country’s destiny. In one of history’s bitter twists of fate, the way Afghanistan’s unique ecology converged with American military technology transformed this remote, landlocked nation into the world’s first true narco-state -- a country where illicit drugs dominate the economy, define political choices, and determine the fate of foreign interventions.

Covert Warfare (1979-1992)

The CIA’s secret war against the Soviet occupation of Afghanistan during the 1980s helped transform the lawless Afghan-Pakistani borderlands into the seedbed for a sustained expansion of the global heroin trade. “In the tribal area,” the State Department would report in 1986, “there is no police force. There are no courts. There is no taxation. No weapon is illegal... Hashish and opium are often on display.” By then, the process had long been underway.  Instead of forming its own coalition of resistance leaders, the Agency relied on Pakistan’s crucial Inter Service Intelligence (ISI) and its Afghan clients who soon became principals in the burgeoning cross-border opium traffic.

Not surprisingly, the Agency looked the other way while Afghanistan’s opium production grew unchecked from about 100 tons annually in the 1970s to 2,000 tons by 1991. In 1979 and 1980, just as the CIA effort was beginning to ramp up, a network of heroin laboratories opened along the Afghan-Pakistan frontier.  That region soon became the world’s largest heroin producer. By 1984, it supplied a staggering 60% of the U.S. market and 80% of the European one. Inside Pakistan, the number of heroin addicts went from near zero (yes, zero) in 1979 to 5,000 in 1980 and 1,300,000 by 1985 -- a rate of addiction so high the U.N. called it “particularly shocking.”

According to the 1986 State Department report, opium “is an ideal crop in a war-torn country since it requires little capital investment, is fast growing, and is easily transported and traded.” Moreover, Afghanistan’s climate was well suited to this temperate crop, with average yields two to three times higher than in Southeast Asia’s Golden Triangle region, the previous capital of the opium trade. As relentless warfare between CIA and Soviet surrogates generated at least three million refugees and disrupted food production, Afghan farmers began to turn to opium “in desperation” since it produced such easy “high profits” which could cover rising food prices. At the same time, resistance elements, according to the State Department, engaged in opium production and trafficking “to provide staples for [the] population under their control and to fund weapons purchases.”

As the mujahedeen resistance gained strength and began to create liberated zones inside Afghanistan in the early 1980s, it helped fund its operations by collecting taxes from peasants producing lucrative opium poppies, particularly in the fertile Helmand Valley, once the breadbasket of southern Afghanistan. Caravans carrying CIA arms into that region for the resistance often returned to Pakistan loaded down with opium -- sometimes, the New York Times reported, “with the assent of Pakistani or American intelligence officers who supported the resistance.”

Once the mujahedeen fighters brought the opium across the border, they sold it to Pakistani heroin refiners operating in the country’s North-West Frontier Province, a covert-war zone administered by the CIA’s close ally General Fazle Haq. By 1988, there were an estimated 100 to 200 heroin refineries in the province’s Khyber district alone. Further south in the Koh-i-Soltan district of Baluchistan Province, Gulbuddin Hekmatyar, the CIA’s favored Afghan asset, controlled six refineries that processed much of the opium harvest from the Helmand Valley into heroin. Trucks of the Pakistani army’s National Logistics Cell, arriving in these borderlands from the port of Karachi with crates of weaponry from the CIA, left with cargos of heroin for ports and airports where it would be exported to world markets.

In May 1990, as this covert operation was ending, the Washington Post reported that the CIA’s chief asset Hekmatyar was also the rebels’ leading heroin trafficker. American officials, the Post claimed, had long refused to investigate charges of heroin dealing by Hekmatyar, as well as Pakistan’s ISI, largely “because U.S. narcotics policy in Afghanistan has been subordinated to the war against Soviet influence there.”

Indeed, Charles Cogan, former director of the CIA’s Afghan operation, later spoke frankly about his Agency’s choices. “Our main mission was to do as much damage as possible to the Soviets,” he told Australian television in 1995. “We didn’t really have the resources or the time to devote to an investigation of the drug trade. I don’t think that we need to apologize for this... There was fallout in term of drugs, yes. But the main objective was accomplished. The Soviets left Afghanistan.”

The Afghan Civil War and the Rise of the Taliban (1989-2001)

Over the longer term, such a “clandestine” intervention (so openly written and bragged about) produced a black hole of geopolitical instability never sealed or healed thereafter.

Lying at the northern reaches of the seasonal monsoon, where rain clouds arrive already squeezed dry, arid Afghanistan never recovered from the unprecedented devastation it suffered in the years of the first American intervention. Other than irrigated areas like the Helmand Valley, the country’s semi-arid highlands were already a fragile ecosystem straining to sustain sizeable populations when war first broke out in 1979. As that war wound down between 1989 and 1992, the Washington-led alliance essentially abandoned the country, failing either to sponsor a peace settlement or finance reconstruction.

Washington simply turned elsewhere as a vicious civil war broke out in a country with 1.5 million dead, three million refugees, a ravaged economy, and a bevy of well-armed warlords primed to fight for power. During the years of vicious civil strife that followed, Afghan farmers raised the only crop that ensured instant profits, the opium poppy.  The opium harvest, having multiplied twentyfold to 2,000 tons during the covert-war era of the 1980s, would double during the civil war of the 1990s.

In this period of turmoil, opium’s ascent should be seen as a response to the severe damage two decades of warfare had inflicted. With the return of those three million refugees to a war-ravaged land, the opium fields were an employment godsend, since they required nine times as many laborers to cultivate as wheat, the country’s traditional staple. In addition, opium merchants alone were capable of accumulating capital rapidly enough to be able to provide much-needed cash advances to poor poppy farmers that equaled more than half their annual income. That credit would prove critical to the survival of many poor villagers.

In the civil war’s first phase from 1992 to 1994, ruthless local warlords combined arms and opium in a countrywide struggle for power. Determined to install its Pashtun allies in Kabul, the Afghan capital, Pakistan worked through the ISI to deliver arms and funds to its chief client Hekmatyar.  By now, he was the nominal prime minister of a fractious coalition whose troops would spend two years shelling and rocketing Kabul in fighting that left the city in ruins and some 50,000 more Afghans dead. When he nonetheless failed to take the capital, Pakistan threw its backing behind a newly arisen Pashtun force, the Taliban, a fundamentalist movement that had emerged from militant Islamic schools.

After seizing Kabul in 1996 and taking control of much of the country, the Taliban regime encouraged local opium cultivation, offering government protection to the export trade and collecting much needed taxes on both the opium produced and the heroin manufactured from it. U.N. opium surveys showed that, during their first three years in power, the Taliban raised the country’s opium crop to 4,600 tons, or 75% percent of world production at that moment.

In July 2000, however, as a devastating drought entered its second year and mass starvation spread across Afghanistan, the Taliban government suddenly ordered a ban on all opium cultivation in an apparent appeal for international recognition and aid. A subsequent U.N. crop survey of 10,030 villages found that this prohibition had reduced the harvest by 94% to a mere 185 tons.

Three months later, the Taliban sent a delegation headed by its deputy foreign minister, Abdur Rahman Zahid, to U.N. headquarters in New York to barter a continuing drug prohibition for diplomatic recognition. That body instead imposed new sanctions on the regime for protecting Osama bin Laden. The U.S., on the other hand, actually rewarded the Taliban with $43 million in humanitarian aid, even as it seconded U.N. criticism over bin Laden. Announcing this aid in May 2001, Secretary of State Colin Powell praised “the ban on poppy cultivation, a decision by the Taliban that we welcome” and urged the regime to “act on a number of fundamental issues that separate us: their support for terrorism; their violation of internationally recognized human rights standards, especially their treatment of women and girls.”

The War on Terror (2001-2016)

After a decade of ignoring Afghanistan, Washington rediscovered the place with a vengeance in the aftermath of the 9/11 attacks. Only weeks later, in October 2001, the U.S. began bombing the country and then launched an "invasion" spearheaded by local warlords. The Taliban regime collapsed, in the words of veteran New York Times reporter R.W. Apple, with a speed “so sudden and so unexpected that government officials and commentators on strategy... are finding it hard to explain.” Although the U.S. air attacks did considerable physical and psychological damage, many other societies have withstood far more massive bombardments without collapsing in this fashion. In retrospect, it seems likely that the opium prohibition had economically eviscerated the Taliban, leaving its theocracy a hollow shell that shattered with the first American bombs.

To an extent not generally appreciated, for the previous two decades Afghanistan had devoted a growing share of its resources -- capital, land, water, and labor -- to the production of opium and heroin. By the time the Taliban outlawed cultivation, the country had become, agriculturally, little more than an opium monocrop. The drug trade accounted for most of its tax revenues, almost all its export income, and much of its employment. In this context, opium eradication proved to be an act of economic suicide that brought an already weakened society to the brink of collapse. Indeed, a 2001 U.N. survey found that the ban had “resulted in a severe loss of income for an estimated 3.3 million people,” 15% of the population, including 80,000 farmers, 480,000 itinerant laborers, and their millions of dependents.

While the U.S. bombing campaign raged throughout October 2001, the CIA spent $70 million “in direct cash outlays on the ground” to mobilize its old coalition of tribal warlords to take down the Taliban, an expenditure President George W. Bush would later hail as one of history’s biggest “bargains.” To capture Kabul and other key cities, the CIA put its money behind the leaders of the Northern Alliance, which the Taliban had never fully defeated. They, in turn, had long dominated the drug traffic in the area of northeastern Afghanistan they controlled in the Taliban years. In the meantime, the CIA also turned to a group of rising Pashtun warlords who had been active as drug smugglers in the southeastern part of the country.  As a result, when the Taliban went down, the groundwork had already been laid for the resumption of opium cultivation and the drug trade on a major scale.

Once Kabul and the provincial capitals were taken, the CIA quickly ceded operational control to uniformed allied forces and civilian officials whose inept drug suppression programs in the years to come would, in the end, leave the heroin traffic’s growing profits first to those warlords and, in later years, largely to the Taliban guerrillas. In the first year of U.S. occupation, before that movement had even reconstituted itself, the opium harvest surged to 3,400 tons. In a development without historical precedent, illicit drugs would be responsible for an extraordinary 62% percent of the country’s gross domestic product (GDP) in 2003. For the first few years of the U.S. occupation, Defense Secretary Donald Rumsfeld “dismissed growing signs that drug money was being funneled to the Taliban,” while the CIA and the U.S. military “turned a blind eye to drug-related activities by prominent warlords.”

In late 2004, after nearly two years in which it showed next to no interest in the subject, outsourcing opium control to its British allies and police training to the Germans, the White House was suddenly confronted with troubling CIA intelligence suggesting that the escalating drug trade was fueling a revival of the Taliban. Backed by President Bush, Secretary of State Powell then urged an aggressive counter-narcotics strategy, including a Vietnam-style aerial defoliation of parts of rural Afghanistan. But U.S. Ambassador Zalmay Khalilzad resisted this approach, seconded by his local ally Ashraf Ghani, then the country’s finance minister (and now its president), who warned that such an eradication program would mean “widespread impoverishment” in the country without $20 billion in foreign aid to create “genuine alternative livelihood[s].”

As a compromise, Washington came to rely on private contractors like DynCorp to train Afghan manual eradication teams. However, by 2005, according to New York Times correspondent Carlotta Gall, that approach had already become “something of a joke.” Two years later, as the Taliban insurgency and opium cultivation both spread in what seemed to be a synergistic fashion, the U.S. Embassy again pressed Kabul to accept the kind of aerial defoliation the U.S. had sponsored in Colombia. President Hamid Karzai refused, leaving this critical problem unresolved.

The U.N.’s Afghanistan Opium Survey 2007 found that the annual harvest was up 24% to a record 8,200 tons, which translated into 53% of the country’s GDP and 93% of the world’s illicit heroin supply. Significantly, the U.N. stated that Taliban guerrillas had “started to extract from the drug economy resources for arms, logistics, and militia pay.” A study for the U.S. Institute of Peace concluded that, by 2008, the movement had 50 heroin labs in its territory and controlled 98% of the country’s poppy fields.  That year, it reportedly collected $425 million in “taxes” levied on opium traffic, and with every harvest, it gained the necessary funds to recruit a new crop of young fighters from the villages. Each of those prospective guerrillas could count on monthly payments of $300, far above the wages they would have made as agricultural laborers.

In mid-2008, to contain the spreading insurgency, Washington decided to commit 40,000 more American combat troops to the country, raising allied forces to 70,000. Recognizing the crucial role of opium revenues in Taliban recruitment practices, the U.S. Treasury also formed the Afghan Threat Finance Cell and embedded 60 of its analysts in combat units charged with launching strategic strikes against the drug trade.

Using quantitative methods of “social network analysis” and “influence network modeling,” those instant civilian experts would often, according to one veteran analyst, “point to hawala brokers [rural creditors] as critical nodes within an insurgent group’s network,” prompting U.S. combat soldiers to take “kinetic courses of action -- quite literally, kicking down the door of the hawala office and shutting down the operation.” Such “highly controversial” acts might “temporarily degrade the financial network of an insurgent group,” but those gains came “at the cost of upsetting an entire village” dependent on the lender for legitimate credit that was the “vast majority of the hawalador’s business.” In this way, once again, support for the Taliban grew.

By 2009, the guerrillas were expanding so rapidly that the new Obama administration opted for a “surge” in U.S. troop strength to 102,000 in a bid to cripple the Taliban. After months of rising troop deployments, President Obama’s new war strategy was officially launched on February 13, 2010, in Marja, a remote market town in Helmand Province. As waves of helicopters descended on its outskirts spitting up clouds of dust, hundreds of Marines sprinted through fields of sprouting opium poppies toward the town’s mud-walled compounds. Though their target was the local Taliban guerrillas, the Marines were in fact occupying the capital of the global heroin trade. Forty percent of the world’s illicit opium supply was grown in the surrounding districts and much of that crop was traded in Marja.

A week later, U.S. Commander General Stanley McChrystal choppered into town with Karim Khalili, Afghanistan's vice president, for the media rollout of a new-look counterinsurgency strategy that, he told reporters, was rock-solid certain to pacify villages like Marja. Only it would never be so because the opium trade would spoil the party. “If they come with tractors,” one Afghan widow announced to a chorus of supportive shouts from her fellow farmers, “they will have to roll over me and kill me before they can kill my poppy.” Speaking by satellite telephone from the region’s opium fields, a U.S. Embassy official told me: “You can’t win this war without taking on drug production in Helmand Province.”

Watching these events unfold nearly six years ago, I wrote an essay for TomDispatch warning of a defeat foretold. “So the choice is clear enough,” I said at the time. “We can continue to fertilize this deadly soil with yet more blood in a brutal war with an uncertain outcome... or we can help renew this ancient, arid land by re-planting the orchards, replenishing the flocks, and rebuilding the farming destroyed in decades of war... until food crops become a viable alternative to opium. To put it simply, so simply that even Washington might understand, we can only pacify a narco-state when it is no longer a narco-state.”

By attacking the guerrillas but ignoring the opium harvest that funded new insurgents every spring, Obama’s surge soon suffered that defeat foretold. As 2012 ended, the Taliban guerrillas had, according to the New York Times, “weathered the biggest push the American-led coalition is going to make against them.” Amid the rapid drawdown of allied forces to meet President Obama’s December 2014 deadline for “ending” U.S. combat operations, reduced air operations allowed the Taliban to launch mass-formation attacks in the north, northeast, and south, killing record numbers of Afghan army troops and police.

At the time, John Sopko, the U.S. special inspector for Afghanistan, offered a telling explanation for the Taliban’s survival. Despite the expenditure of a staggering $7.6 billion on “drug eradication” programs during the previous decade, he concluded that, “by every conceivable metric, we’ve failed. Production and cultivation are up, interdiction and eradication are down, financial support to the insurgency is up, and addiction and abuse are at unprecedented levels in Afghanistan.”

Indeed, the 2013 opium crop covered a record 209,000 hectares, raising the harvest by 50% to 5,500 tons. That massive harvest generated some $3 billion in illicit income, of which the Taliban’s tax took an estimated $320 million, well over half its revenues. The U.S. Embassy corroborated this dismal assessment, calling the illicit income “a windfall for the insurgency, which profits from the drug trade at almost every level.”

As the 2014 opium crop was harvested, fresh U.N. figures suggested that the dismal trend only continued, with the areas under cultivation rising to a record 224,000 hectares and production at 6,400 tons remaining near historic highs. In May 2015, having watched this flood of drugs enter the global market as U.S. counter-narcotics spending climbed to $8.4 billion, Sopko tried to translate what was happening into a single all-American image. “Afghanistan,” he said, “has roughly 500,000 acres, or about 780 square miles, devoted to growing opium poppy. That's equivalent to more than 400,000 U.S. football fields -- including the end zones.”

In the fighting season of 2015, the Taliban decisively seized the combat initiative and opium seemed ever more deeply embedded in its operations. The New York Times reported that the movement’s new leader, Mullah Akhtar Mansour, was “among the first major Taliban officials to be linked to the drug trade... and later became the Taliban’s main tax collector for the narcotics trade -- creating immense profits.” After months of relentless pressure on government forces in three northern provinces, the group’s first major operation under his command was the two-week seizure of the strategic city of Kunduz, which just happened to be located on “the country’s most lucrative drug routes... moving opium from the poppy prolific provinces in the south to Tajikistan... and to Russia and Europe.” Washington felt forced to slam down the brakes on planned further withdrawals of its combat forces.

Amid a rushed evacuation of its regional offices in the threatened northern provinces, the U.N. released a map in October showing that the Taliban had “high” or “extreme” control in more than half the country’s rural districts, including many where they had not previously been a significant presence. Within a month, the Taliban unleashed offensives countrywide that aimed at seizing and holding territory, threatening military bases in northern Faryab Province and encircling entire districts in western Herat.

Not surprisingly, the strongest attacks came in the poppy heartland of Helmand Province, where half the country’s opium crop was then grown and, said the New York Times, “the lucrative opium trade made it crucial to the insurgents’ economic designs.” By mid-December, after overrunning checkpoints, winning back much of the province, and setting government security forces back on their heels, the guerrillas came close to capturing that heart of the heroin trade, Marja, the very site of President Obama’s media-saturated surge rollout in 2010.  Had U.S. Special Operations forces and the U.S. Air Force not intervened to relieve “demoralized” Afghan forces, the town and the province would undoubtedly have fallen. By early 2016, 14-plus years after Afghanistan was “liberated” by a U.S. invasion, and in a significant reversal of Obama administration drawdown policies, the U.S. was reportedly dispatching “hundreds” of new U.S. troops in a mini-surge into Helmand Province to shore up the government’s faltering forces and deny the insurgents the “economic prize” of the world’s most productive poppy fields.

After a disastrous 2015 fighting season that inflicted what U.S. officials have termed “unsustainable” casualties on the Afghan army and what the UN called the “real horror” of record civilian losses, the long, harsh winter that has settled across the country is offering no respite. As cold and snow slowed combat in the countryside, the Taliban shifted operations to the cities, with five massive bombings in Kabul and other key urban areas in the first week of January, followed by a suicide attack on a police complex in the capital that killed 20 officers.

Meanwhile, as the 2015 harvest ended, the country’s opium cultivation, after six years of sustained growth, slipped by 18% to 183,000 hectares and the crop yield dropped steeply to 3,300 tons. While U.N. officials attributed much of the decline to drought and the spread of a poppy fungus, conditions that might not continue into 2016, long-term trends are still an unclear mix of positive and negative news. Buried in the mass of data published in the U.N.’s drug reports is one significant statistic: as Afghanistan’s economy grew from years of international aid, opium’s share of GDP dropped steadily from a daunting 63% in 2003 to a far more manageable 13% in 2014. Even so, the U.N. says, “dependency on the opiate economy at the farmer level in many rural communities is still high.”

At that local level in Helmand Province, "Afghan government officials have also become directly involved in the opium trade," the New York Times recently reported. In doing so, they expanded "their competition with the Taliban... into a struggle for control of the drug traffic," while imposing "a tax on farmers practically identical to the one the Taliban uses," and kicking a portion of their illicit profits "up the chain, all the way to officials in Kabul... ensuring that the local authorities maintain support from higher-ups and keeping the opium growing."

Simultaneously, a recent U.N. Security Council investigation found that the Taliban has systematically tapped “into the supply chain at each stage of the narcotics trade,” collecting a 10% user tax on opium cultivation in Helmand, fighting for control of heroin laboratories, and acting as “the major guarantors for the trafficking of raw opium and heroin out of Afghanistan.” No longer simply taxing the traffic, the Taliban is now so deeply and directly involved that, adds the Times, it “has become difficult to distinguish the group from a dedicated drug cartel.” Whatever the long-term trends might be, for the foreseeable future opium remains deeply entangled with the rural economy, the Taliban insurgency, and government corruption whose sum is the Afghan conundrum.

With ample revenues from past bumper crops, the Taliban will undoubtedly be ready for the new fighting season that will come with the start of spring. As snow melts from the mountain slopes and poppy shoots spring from the soil, there will be, as in the past 40 years, a new crop of teenaged recruits ready to fight for the rebel forces.

Cutting the Afghan Gordian Knot

For most people globally, economic activity, the production and exchange of goods, is the prime point of contact with government, as is manifest in the coins and currency stamped by the state that everyone carries in their pockets.  But when a country’s most significant commodity is illegal, then political loyalties naturally shift to the clandestine networks that move that product safely from fields to foreign markets, providing finance, loans, and employment every step of the way. “The narcotics trade poisons the Afghan financial sector and fuels a growing illicit economy,” John Sopko explains. “This, in turn, undermines the Afghan state’s legitimacy by stoking corruption, nourishing criminal networks, and providing significant financial support to the Taliban and other insurgent groups.”

After 15 years of continuous warfare in Afghanistan, Washington is faced with the same choice it had five years ago when Obama’s generals heli-lifted those Marines into Marja to start its surge. Just as it has been over the past decade and a half, the U.S. can remain trapped in the same endless cycle, fighting each new crop of village warriors who annually seem to spring fully armed from that country’s poppy fields. At this point, history tells us one thing: in this land sown with dragon’s teeth, there will be a new crop of guerrillas this year, next year, and the year after that.

Even in troubled Afghanistan, however, there are alternatives whose sum could potentially slice through this Gordian knot of a policy problem. As a first and fundamental step, maybe it’s time to stop talking about the next sets of boots on the ground and for President Obama to complete his planned troop withdrawal.

Next, investing even a small portion of all that misspent military funding in rural Afghanistan could produce economic alternatives for the millions of farmers who depend upon the opium crop for employment. Such money could help rebuild that land’s ruined orchards, ravaged flocks, wasted seed stocks, and wrecked snowmelt irrigation systems that, before these decades of war, sustained a diverse agriculture. If the international community can continue to nudge the country’s dependence on illicit opium down from the current 13% of GDP through such sustained rural development, then perhaps Afghanistan will cease to be the planet’s leading narco-state and just maybe that annual cycle can at long last be broken.


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Appoint a Few More Scalias, Kiss Democracy Goodbye Print
Monday, 22 February 2016 13:41

Hasen writes: "Placing a few more Scalias on the Supreme Court would likely put America's current participatory democracy at risk."

Antonin Scalia. (photo: Shawn/Flickr)
Antonin Scalia. (photo: Shawn/Flickr)


Appoint a Few More Scalias, Kiss Democracy Goodbye

By Richard L. Hasen, Reuters

22 February 16

 

epublican presidential candidates such as Senator Ted Cruz (R-Tex.) have pledged to appoint a justice like Antonin Scalia to the U.S. Supreme Court, if given the opportunity. Yet Scalia’s record on issues related to American democracy and elections was dismal — even when judged against the standards of the conservative Roberts court.

Placing a few more Scalias on the Supreme Court would likely put America’s current participatory democracy at risk.

Take money in politics. In 2010, the Roberts court, including Scalia, ruled in Citizens United v. Federal Election Commission that corporations, like individuals, have a First Amendment right to spend money independently in campaigns. Yet Scalia went further — he argued that people have a First Amendment right to contribute unlimited sums directly to candidates, which raised the stakes for undue influence. Scalia, like Justice Clarence Thomas, who often voted with him, would subject laws that limit campaign contributions to strict scrutiny. That means they would almost certainly fail in a constitutional challenge.

Next, consider the 1965 Voting Rights Act. The Roberts court, including Scalia, decided in Shelby County v. Holder (2013) that Congress no longer had the power to subject states with a record of intentional racial discrimination in voting to special federal oversight of their elections.

Scalia went further, however. He believed that Section 2 of the Voting Rights Act, which provides nationwide protection to racial and ethnic minorities to ensure they have a fair share of political power, should not apply to “vote dilution” claims.

This means that if Scalia had gotten his way, a jurisdiction with 60 percent white voters and 40 percent African American voters would be perfectly free to create legislative districts with all white-preferred representatives. Unless, that is, you could prove intentional racial discrimination, which is extremely difficult. He even remarked, at oral argument in the Shelby County case, that the Voting Rights Act is simply the “perpetuation of racial entitlement.”

Also on redistricting, Scalia led the way in arguing that courts should have no role in policing partisan gerrymandering — the intentional drawing of district lines to give a political party an excessive amount of political power in a state. The only thing that stopped Scalia from getting his way on the court was the opinion of Justice Anthony Kennedy. He essentially left the question open for new argument in a future case.

Perhaps most pernicious of all was Scalia’s opinion for three justices in the Supreme Court’s fractured 2007 decision, Crawford v. Marion County Elections Board. Crawford challenged the constitutionality of Indiana’s strict law requiring proof of voter identification at the polling place. Three justices, led by Justice David Souter, believed that the law violated the Equal Protection Clause and was unconstitutional. Three justices in the middle, led by Justice John Paul Stevens, and joined by Chief Justice John Roberts and Kennedy, ruled that the law itself was permissible when applied generally in Indiana. But that anyone who could show that they faced special burdens would be entitled to an “as applied” exemption from the law.

Scalia, for himself and Justices Samuel Alito and Thomas would have gone much further. To Scalia, if the law imposed little burden on most people, it was constitutional to apply it to everyone even if it could be shown that the law burdened some people a great deal. Like the homeless, for example, who might lack valid photo identification.

Scalia’s opinion here was remarkable for its willingness to tolerate great burdens on identifiable groups of voters — even in the absence of any evidence such laws were necessary to prevent fraud or promote voter confidence.

The list goes on. Scalia was in the minority in a decision ruling that a state supreme court justice could not hear a case involving a litigant who contributed millions of dollars to a “Super PAC” supporting the justice for office. The majority ruled that allowing the justice to participate violated the Due Process Clause because it would create an appearance that the judge might be impartial. But this appearance did not bother Scalia.

Scalia similarly dissented when the court decided last year that Florida’s legal rules preventing judicial candidates from personally asking for campaign contributions violated the First Amendment.

Perhaps most famously, Scalia was in the five-justice conservative majority deciding Bush v. Gore, the case that handed the disputed 2000 presidential election to Republican George W. Bush against Democrat Al Gore. Given that Scalia generally adhered to narrow readings of the Equal Protection Clause, he nonetheless signed onto a majority opinion that applied a novel, liberal reading of the clause to find a constitutional problem with the Florida vote count. When pushed on the issue years later in the many public forums at which he spoke, Scalia repeatedly told questioners, “Get over it.”

There was only one respect in which Scalia took a democracy-protecting position in election cases. Splitting with fellow conservative Thomas, Scalia was a strong believer in the value of disclosure of those funding U.S. elections. He famously wrote: “For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Ironically, this is the one case where Cruz might disagree with Scalia because the senator supports the right to undisclosed spending. Indeed, should Cruz win the 2016 presidential election, the next justice he appoints could be well to the right of Scalia on issues of democracy.

So, the nation would see that there is room to roll back voting rights even further than Scalia would have gone — or where the court has already gone.


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Print
Monday, 22 February 2016 13:40

Gude writes: "Obama can shutter the prison without taking on Congress. Here's how."

Detainees stand during an early morning Islamic prayer at the U.S. military prison for 'enemy combatants' in Guantanamo Bay, Cuba. (photo: John Moore/Getty Images)
Detainees stand during an early morning Islamic prayer at the U.S. military prison for 'enemy combatants' in Guantanamo Bay, Cuba. (photo: John Moore/Getty Images)


The Right Way to Close Guantánamo

By Ken Gude, Politico

22 February 16

 

Obama can shutter the prison without taking on Congress. Here's how.

ith President Barack Obama facing a Tuesday deadline to submit to Congress a plan to close the detention facilities at Guantánamo Bay, Cuba, many commentators believe he has just two options: override the statutory ban on transferring detainees to the United States or accept that he won’t close the prison during his presidency.

This is a false choice. Overriding the U.S. transfer ban would be a catastrophic decision, but the president doesn’t need to use an executive action in order to close Guantánamo. He has the unilateral authority to shut down the prison without Congress changing the law. Here’s how.

Several former senior Obama administration officials have argued that the president should simply ignore the congressionally imposed ban as an unconstitutional infringement on his powers. They present a reasonable legal case based on the president’s powers as commander in chief trumping any congressional action. But there would be equally legitimate questions regarding the weakness of the president’s claim of constitutional authority to act directly contrary to a repeatedly passed congressional statute. It is this uncertainty that has prompted the military to signal that it is unlikely to carry out such an order by the president to override the transfer ban.

The legal question is largely beside the point, however, because overriding the transfer ban is really a political issue and the politics of such a move would be a disaster. Republicans are salivating at the prospect of Obama using his executive authority on Guantánamo, and they are ready for a fight. They have created websites, prepped ad campaigns and hired attorneys.

And it is a fight they would surely win because the ingredients that have contributed to Obama winning the argument in past battles over his use of executive authority — strong support from the Democratic base and unity from Democratic elected officials — would not exist in this case.

The Obama administration intends to bring at least some detainees to the United States for continued law of war detention. Many civil liberties and human rights groups strongly oppose this type of action, even describing it as creating Guantánamo North, which would substantially weaken support from the left should the president proceed. Some senior Democratic members of Congress publicly opposed the Bowe Bergdahl exchange when the only rule violated was a requirement to notify Congress 30 days prior to the transfer. Under this scenario, Obama would, as Republicans have been screaming since 2009, “bring terrorists into your backyard” in direct contradiction of congressional statute that many Democrats have repeatedly voted for, in a move the base also hates.

This is not a recipe for a united Democratic caucus in Congress. And Obama losing support across the political spectrum for closing Guantánamo would be particularly dangerous precisely at the time when many Republicans are pushing for expanding it and resuming torture.

Fortunately, Obama does not need to rely on overriding the U.S. transfer ban to close Guantánamo. Instead, he should pursue options that are unquestionably in his control and can achieve his goal of closing Guantánamo.

First, Obama must accelerate the review and transfer process. More than a third of the remaining 91 detainees are cleared for transfer, and the existing periodic review process could substantially add to that number. Increasing the rate at which cleared detainees are transferred out of Guantánamo is the fastest way to reduce the prison population. But this alone is not enough to close Guantánamo.

To help further reduce the number of detainees, the Obama administration should pursue third-country prosecutions of Guantánamo detainees who have violated the laws of other countries. The most likely among the remaining detainees for this option is Hambali, the Indonesian accused of plotting the 2002 bombing in Bali that killed more than 200, including nine Americans and 88 Australians. If Congress bars Hambali’s U.S. prosecution, Indonesia or Australia could be interested in prosecuting him. Nearly a dozen other detainees were captured far from any battlefield in places like Kenya or Thailand and are candidates for prosecution in those countries.

Should the administration follow the previous steps, nearly all of the detainees who would remain at Guantánamo were captured in either Afghanistan or Pakistan in connection with the Afghan war. It is only because of the flawed decision to open Guantánamo that they were removed from that theater of conflict at all. The United States has already handed over all detainees it held in Afghanistan — both Afghans and third country nationals — as part of a formal agreement with the Afghan government. Transferring this last group of Guantánamo detainees to the Afghan government would merely be an extension and completion of the process of handing over all remaining detainees in U.S. custody.

This would still leave the seven detainees who are currently facing charges in military commissions, including the five accused of plotting the 9/11 attacks. Whatever problems exist with the military commissions, there is no viable alternative but to continue them. But removing the rest of the detainees would turn Guantánamo from a prison camp to a trial venue and allow for the dismantling of most of the facility. However long it takes to complete these trials is a legal process issue and should be considered separately from the question of closing the detention center.

Obama would be on shaky legal ground and would suffer a dramatic political defeat should he even attempt to override the U.S. transfer ban. He should rule this option out. But doing so does not mean he must to give up on his goal to close Guantánamo. He has options entirely within his control that, if aggressively pursued, can make 2016 Guantánamo’s last year.


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