Relations between the US and Pakistan have been tense since the May 2, 2011 US Navy SEAL raid on Osama bin Laden’s compound in Abbotabad which culminated in the death of the al-Qaeda leader.  Senior Pakistani officials expressed disapproval of the US military presence within Pakistan’s borders and threatened that any further encroachment of Pakistan’s sovereignty would “warrant a review on the level of… cooperation with the United States.”  However, the successful assault on bin Laden’s compound emboldened the US to step up the rate of unmanned drone strikes within Pakistan, nearly tripling the number of strikes in an eleven day span after the death of bin Laden.

In addition to targeting known “high value target” insurgents, the scope of drone strikes in Pakistan was expanded by President George W. Bush, who in 2008 granted the CIA authority to target unnamed militants whose “pattern of life” suggested they were involved with terrorist groups.  President Obama further expanded the CIA’s authority to conduct drone attacks in Pakistan, allowing them to “fire at will” at targets without obtaining outside authorization so long as the targets were within pre-approved zones near the Pakistan-Afghanistan border.

Pakistan has long opposed these strikes as violations of its national sovereignty and insists that it should be included in the target selection and mission operation of the drone strikes.  However, the US has repeatedly refused to include Pakistan in the planning and execution of the strikes, citing national security concerns and concerns over the possibility of informants within the Pakistani government tipping off terrorists to future strikes.

The US unmanned drone strike program has long been controversial.  Though the strikes have successfully targeted known terrorists such as Janbaz Zadran, a top Haqqani militant commander who had planned raids on US forces in Afghanistan, there have been reports of accidental casualties among civilians and Pakistani military forces, as well.  The debate between US national security and Pakistani national sovereignty is frequently contentious, and though Pakistan has long been content to make toothless protests about US drone strikes within its borders, the recent incident in which NATO fire killed 24 soldiers at a Pakistani military post has given Pakistan’s protests more vigor.

The CIA suspension of drone strikes is reportedly at least six weeks old, and comes at a time when the US is reconsidering its general policy regarding drone strikes in Pakistan.  The CIA’s authority to target any suspected militant within certain free-fire zones near the Afghan border has arguably caused more harm than good, as the low-level terrorist targets killed by the strikes are often easily replaced, and the resentment generated by the incursion into Pakistani territory and the collateral civilian casualties have created problems for the pro-US administration of President Asif Ali Zardari among his constituents.  The Obama administration has relied far more on drone strikes in its campaign against terrorism than did the Bush administration, and has generally given the CIA and Department of Defense more leeway in conducting these strikes, but as it prepares to wind down troop levels in Afghanistan, many in the Administration are questioning the efficacy of continuing to rely so heavily on killing terrorists outside the US as the primary method of combating the threat terrorist groups pose to US national security.

The United States has, from the start of the War of Terror, maintained that its interest in protecting itself from international terrorism justifies lethal response against enemy combatants who are engaged in planning or carrying out acts of terrorism against the US or US forces, even if that means carrying out such a response within the sovereign boundaries of another nation.  The US has accordingly carried out drone strikes not only in Afghanistan, where we are engaged in armed conflict, but also in Pakistan and Yemen, with whom we are not at war.  The nature of the war on terrorism, argue government national security analysts, is such that legitimate enemy belligerents (“enemy combatants,” to use the Bush Administration’s parlance) may be targeted wherever they are planning strikes against the US, be that Afghanistan, Pakistan, Yemen, or elsewhere.

However, despite its previous justification for the legality of drone strikes within the sovereign borders of other nations, evidence that the Obama Administration is rethinking its position on “fire at will” drone strikes may yet rekindle the debate over unmanned drone strikes.  Despite previously ignoring Pakistan’s protestations of sovereignty, the CIA’s recent suspension of strikes suggests that the US can and does take national sovereignty issues under consideration when deciding whether to use lethal force against militants located in another country’s territory.  That is likely the reason that drone strikes have only been carried out in nations with heavily US-dependent governments, such as Pakistan, who are less able to effectively assert their authority against US incursions into their territorial boundaries.  The United States should take care not to take the graces of nations like Pakistan, whose US-friendly governments have long put on a public show of protesting US influence while quietly turning a blind eye to US interference within their borders, for granted.  As the tattered relationship between Pakistan and the US attests, even the most stalwart US allies have their limits when it comes to accepting the “collateral damage” that is inevitable in the US war against terror.

Photo obtained from darkgovernment.com.

Approximately 140 subterranean tunnels have been discovered below the U.S.-Mexico border since May 1990.  Notably, more than seventy percent of that total was discovered since the 2006 start of Mexican President Felipe Calderon’s aggressive crackdown on organized crime.  Efforts grew more stringent north of the border as well, with Department of Homeland Security agents finding tunnels as often as one per month.

Increasingly, authorities accustomed to finding shallow burrows into existing non-operational gas lines or waterways with storm drain exits now find passages complete with ventilation, electricity, rail tracks, and hydraulic lifts.  The significance of these recent discoveries is not increased quantity, but increased sophistication.  The technological advancements of these super tunnels, according to officials, are likely the product of untold sums of drug cartel money.

The cartels have upped the ante by enlisting professional experts for design and construction.  This added expertise contributes to the overall effectiveness of tunnel smuggling by frustrating detection efforts.  Not only are the tunnels deeper, they can also be constructed faster —even through solid rock.  The seizure of nearly fifty tons of narcotics during the discovery of just two tunnels in November 2011 alone suggests that, for now, the cartels believe in their tunnel investments.

Whether these super tunnels should be cause for heightened alarm remains to be seen.  It could be that this merely represents a shift in the mode of transportation rather than a marked increase in the total quantity of narcotics crossing the border.  This will likely remain a point of speculation in light of the difficulties of accurately tracking illicit activity; however, there should be little doubt that umpteen tons have already traversed the passages and will probably continue to do so in a steady stream.

Now that the threat and novelty of the super tunnels are readily apparent, lawmakers may finally—after several failed attempts—have the momentum needed to take action.  Congress appears at least interested in trying again.  The Border Tunnel Prevention Act of 2011 is in early stages in both houses, but the Senate Judiciary Committee passed S. 1236 by a voice vote last in December.  The House version of the bill, H.R. 2264, is still under committee consideration.

If passed, the Border Tunnel Prevention Act of 2011 would not only criminalize the construction and use of illicit cross-border tunnels, it would also penalize landowners who allow their property to be used in the tunneling process.  More controversially, the measure would also expand wiretap authority for prosecutors—even in the absence of actual contraband ordinarily required.  Similar previous measures have died in committee but the boldness behind the super tunnels may prove a galvanizing force in updating the legal tools necessary to combat the tunnel threat.

The 2012 elections in both the United States and Mexico could also impact the legislative process.  Mexico’s single-term limit on its presidency means new leadership in Mexico is certain within the year.  This is particularly significant in terms of southwest border security efforts because incumbent Felipe Calderon is known for his aggressive initiative in fighting organized crime in Mexico.  It was President Calderon’s initiative that resulted in the Merida Initiative which has fortified Mexico’s law enforcement efforts against cartels through provisions of training, equipment, and advice.  The United States surely does not want to suffer the loss of such an ally in bilateral border control efforts.

At least one candidate, Enrique Pena Nieto, appears attentive to concerns and ready to face the fight.  Some speculate that Mexican citizens, weary from increased tension and violence associated with stricter law enforcement of the last five years, may not be so inclined to continue the struggle.  Either way, while we watch and wait, it may prove to be an ideal time to ensure that this country is prepared with appropriate legal tools to anticipate the additional challenges that the super tunnels may bring.

Photo obtained from msn.msnbc.com.

This would be a mistake, for as Secretary Clinton stepped off her jet in Burma earlier this December she entered a state that in appearance is disavowing its inheritance as a regime which mercilessly assaulted Buddhist monks on the streets of Rangoon and crushed democratic protest only a few years before. Than Shwe, the commander-in-chief and head of state since 1992, resigned in March in favor of the more moderate Thein Sein. Several thousand political prisoners were soon released from internment. Aung San Suu Kyi, who seemed destined to live out her life as the beloved (by the West, at least) and imprisoned symbol of democracy, was released from her long-standing house arrest. Suu Kyi has even been allowed to register her political party in forthcoming elections. The Myanmar regime has even begun an initiative to woo Burmese expatriates to come home, promising opportunities for investment and political access.

Foreign powers have quickly responded to these inviting gestures from the Myanmar regime. Sectetary Clinton’s trip to Burma (the first visit of a high-ranking American official since 1962) was both a show of support for the release of Suu Kyi and a subdued signal to China. Burma has long been within China’s close sphere of influence, and China, along with Thailand, has been one of the leading (and in reality closer to only) investor in the isolated state. The Burmese termination of a planned Chinese-funded dam close to the Sino-Burmese border in September shocked Beijing, and has led to Chinese speculation that America’s renewed interest in Burma is another example of the United States’ purported increasingly offensive presence in the Asia-Pacific region to counter growing Chinese influence. Other regional players have recently acknowledged Burma. ASEAN, based in Singapore, has promised Burma its titular presidency for 2014, and India is constructing roadways between Burma and the eastern Indian frontier.

The question remains about why foreign powers would be eager to improve relations with this isolated and backwater impoverished nation. The honest answer is location. Burma straddles the crossroads of Southeast Asia, sharing long borders with India, China, and Thailand. The State Department describes Burma as a “resource-rich country with a strong agricultural base”. The country has a smaller population than either Vietnam or neighboring Thailand yet is larger than both in size, with the majority of the country’s geography occupied by the lush and fertile Irrawaddy watershed. Burma is a major rice producing region, and its mines are full of precious gems, especially rubies. 90% of the world’s rubies come from Burma. It is easy to imagine neighboring China and India, greedy for land and riches, eagerly licking their lips in anticipation of plundering Burma of its precious booty.

It is too early to predict Burma’s political and economic trajectory. Hopefully the Myanmar regime will hold true to its vow of honest elections and allow non-military actors, including Suu Kyi, to participate in future democratic endeavors. Charade or not, the recent reform-minded motions from Burma are most certainly an attempt to develop the nation’s economy and gain leverage in the Southeast Asian region. China comes to Burma expecting a subservient vassal. Hungry India, pressured by an outrageously-high population in a region of tight ecological stress, hopes for access to vast natural resources. Thailand, Vietnam, and the other ASEAN nations need partners in their quest to avoid Chinese hegemony of Southeast Asia. And the United States (and Australia, with its increased naval presence in the Indian Ocean) desires a check on Chinese influence.

How should Burma proceed first? My earnest response would be to ease tourism restrictions. Not only would a flush of cash flow in, as shown by American and Australian love for travel to tropical Buddhist nations like Vietnam and Thailand, but it would be an honest signal that the Myanmar regime is committed to both investment and international dialogue. New Burmese roads do not have to only go from Mandalay north into China, as the Japanese dreamed in World War II. If Burma is committed to reform they will build roads not just to China but across the region, across the sea to America, and around the world.

Photo credits to “Free Picture” at http://picture30.blogspot.com/2011/06/naypyidaw-pictures.html.

The Foreign Prime Minister of Pakistan conveyed her thoughts to Hillary Clinton expressing deep rage and claiming that these attacks “demonstrate complete disregard for international law and human life, and are in stark violation of Pakistani sovereignty.”

Sovereignty isn’t the only issue arising out of the estranged U.S.-Pakistani relationship. Former U.S. officials and U.S. departments deem counterterrorism as the biggest issue affecting the relationship. For instance the Department of Defense and the CIA view the aid given to Pakistan as overly protecting and intruding into the U.S. counterterrorism efforts. State Department officials claim there is disconnect between the security and diplomatic goals of the U.S., with the recent attacks furthering this disconnect.

The investigation, discussed in a Pentagon news conference, found that because of mutual mistrust the U.S. failed to tell Pakistani soldiers of an attack on an Afghan border with suspicion that Pakistan would have warned insurgents. Once alarmed of this activity overnight, Pakistani soldiers fired and the U.S. launched the tragic air attack.

While the investigation alleges that the U.S. acted in self defense, the Pakistani military disagrees with the findings, suggests a lack of detailed facts and awaits the full report of the investigation. In a response to CNN, Pakistani intelligence officials claim the actual facts contradict the investigation’s findings.

There were a number of errors made regarding this NATO attack. For starters, the investigation reveals there was miscommunication surrounding whether Pakistani soldiers were in the area of attack. Through a radio transmitter, no Pakistani military were tracked which led the U.S. to believe they were not there. This was electronically documented and U.S. officials stopped inquiring about Pakistani presence in the area.

After the initial strike, the U.S. military in eastern Afghanistan gave Pakistani officials located in a border control center a general, not specific, location for the strikes. The U.S. initially reported the correct location was given, however a new account shows the U.S. attempted to make the reports more specific using a map of the border. However, this information was incorrectly portrayed, leading the Pakistani military to believe the attacks were about 9 miles from its original location.

There is, of course, much dispute over this fact, with Pakistan claiming their representatives tried to warn the U.S. that their information was incorrect.  However, the report acknowledges that the location was in fact 9 miles off and U.S. officials confirm Pakistan’s assertions that a NATO officer apologized to a Pakistani representative regarding this error.

In the most dangerous of situations, shouldn’t communication be up to par? This attack shows that communication ties are in dire need of strengthening between U.S. departments and with Pakistan. With millions of dollars spent on technology efforts for the military, the U.S. should not have to attribute the death of 24 soldiers to a simple miscommunication or technological mistake.

Pakistan and the U.S.’s heightened distrust of one another prove to be detrimental for all. The national security of the U.S. is severely threatened without a stable relationship with Pakistan, which is needed to stabilize Afghanistan. Pakistan depends on U.S. aid to fund its military. With continuing threats to and violations of Pakistan’s sovereignty, there is no guarantee that this relationship will be restored.

Was this simply a mistake? Or was it a deliberate attack on the Afghan border as Pakistan seems to believe. Regardless of the true account, both parties are in for much grief, as Pakistan mourns and the U.S. struggle to ease tension between the two. Somewhat acknowledging their mistake, the U.S. is offering payments to the families of the fallen Pakistani soldiers. Meanwhile, General Ashfaq Kayani (Pakistan’s army chief) disregards this offer stating “no one can put a price tag in the blood of the martyrs of the nation.”

Once again, anticipation prevails as we await the report of Pakistan’s promised detailed response and the aftermath of these findings. Along with the U.S.’s acknowledged mistakes, offers of compensation, and condolences sent from several officials, will Pakistan ever receive the apology it demands from the U.S.? Perhaps it is in the U.S.’s best interest to apologize, assuming the worst is yet to come.

Many senators including Rand Paul (R-KY), one of the chamber’s most conservative members, argued that the initial detainee language introduced was too expansive and could have handed the executive branch the power to have the military arrest U.S. citizens and hold them without trial. The initial language that was at issue was in Section 1031 of the original bill, which stated: “Congress affirms that the authority of the President to use all necessary and appropriate force…includes the authority for the Armed Forces of the United States to detain covered persons…Detention under the law of war without trial.” Secretary of Defense, Leon Panetta, and other administration officials also expressed concern that this language would have authorized the indefinite military detention of American citizens.

However, after a protracted debate in the Senate and attempts by multiple senators, including Senator Mark Udall (D-CO) to strip Section 1031 from the bill, the Senate ultimately settled on a compromise amendment introduced by Senator Feinstein. The amendment, which passed 99-1, does not actually prohibit the U.S. government from detaining Americans indefinitely in military prisons. The compromise provision only reiterates that, “nothing in the legislation is intended to change the existing authority on detention.”

The Supreme Court has already held that the U.S. government has the authority to detain American citizens in military prisons. In Hamdi v. Rumsfeld the Supreme Court held that Hamdi, a U.S. citizen captured in Afghanistan and detained in Guantanamo Bay, was an enemy combatant and could be detained in a military prison. The Court reasoned that the Authorization for the Use of Military Force (AUMF), passed by Congress following the attacks on September 11, 2001, authorized the President to detain anyone determined to be an enemy combatant. Some senators, including the Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-MI) and Senator Lindsey Graham (R-SC) argue that, irrespective of the compromise provision recently passed in the Senate, the Hamdi decision already authorizes the President to provide military detentions for U.S. citizens.

The President opposes the Senate passed NDAA and has threatened to veto the legislation if Congress passes it in its current form. Jay Carney, the White House Press Secretary, stated in a recent press conference, “Any bill that challenges or constrains the president’s critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisers to recommend a veto.” In addition, Deputy National Security Advisor, John Brennan, recently went even further in expressing the Administration’s position by stating that there will be no military detentions for American citizens who are captured in the U.S.

For now, we have to wait and see whether Congress will include the Senate passed military detention provision in the final bill, which the President has all but assured that he will veto. The House, which passed its version of the NDAA last May, and Senate Conference Committee, must still meet to reconcile the different language between the two versions of the bill.

Many senators including Rand Paul (R-KY), one of the chamber’s most conservative members, argued that the initial detainee language introduced was too expansive and could have handed the executive branch the power to have the military arrest U.S. citizens and hold them without trial. The initial language that was at issue was in Section 1031 of the original bill, which stated: “Congress affirms that the authority of the President to use all necessary and appropriate force…includes the authority for the Armed Forces of the United States to detain covered persons…Detention under the law of war without trial.” Secretary of Defense, Leon Panetta, and other administration officials also expressed concern that this language would have authorized the indefinite military detention of American citizens.

However, after a protracted debate in the Senate and attempts by multiple senators, including Senator Mark Udall (D-CO) to strip Section 1031 from the bill, the Senate ultimately settled on a compromise amendment introduced by Senator Feinstein. The amendment, which passed 99-1, does not actually prohibit the U.S. government from detaining Americans indefinitely in military prisons. The compromise provision only reiterates that, “nothing in the legislation is intended to change the existing authority on detention.”

The Supreme Court has already held that the U.S. government has the authority to detain American citizens in military prisons. In Hamdi v. Rumsfeld the Supreme Court held that Hamdi, a U.S. citizen captured in Afghanistan and detained in Guantanamo Bay, was an enemy combatant and could be detained in a military prison. The Court reasoned that the Authorization for the Use of Military Force (AUMF), passed by Congress following the attacks on September 11, 2001, authorized the President to detain anyone determined to be an enemy combatant. Some senators, including the Chairman of the Senate Armed Services Committee, Senator Carl Levin (D-MI) and Senator Lindsey Graham (R-SC) argue that, irrespective of the compromise provision recently passed in the Senate, the Hamdi decision already authorizes the President to provide military detentions for U.S. citizens.

The President opposes the Senate passed NDAA and has threatened to veto the legislation if Congress passes it in its current form. Jay Carney, the White House Press Secretary, stated in a recent press conference, “Any bill that challenges or constrains the president’s critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisers to recommend a veto.” In addition, Deputy National Security Advisor, John Brennan, recently went even further in expressing the Administration’s position by stating that there will be no military detentions for American citizens who are captured in the U.S.

For now, we have to wait and see whether Congress will include the Senate passed military detention provision in the final bill, which the President has all but assured that he will veto. The House, which passed its version of the NDAA last May, and Senate Conference Committee, must still meet to reconcile the different language between the two versions of the bill.

Photo obtained from www.disastersurvivaltools.com.

The launch occurred from the Xichang Satellite Launch Center in southwest China. There the Long March 3B placed the W3C into a transfer orbit from which it is expected to use its own power to circularize its position and then drift to its planned operating slot at 16 degrees east.

Paris-based Eutelsat said the “spacecraft was healthy in orbit after launch. W3C, a Thales Alenia Space Spacebus 4000 C3 model, carries 53 Ku-band and three Ka-band transponders and will deliver telecommunications services to Europe, the Indian Ocean region and parts of Africa.” It is designed to deliver 12 kilowatts of power to its payload at the end of 15 years of service life in orbit.

The U.S. government had placed a ban on space related activities with China, due to the fear that China was using commercial satellite launches to perfect its missile technology, especially ICBMs. The U.S. Congress in 1998 passed a law that reclassified all commercial satellites as weapons systems for export purposes. This made satellites subject to the International Traffic in Arms Regulations (ITAR), and included the entire space industry under the United States Munitions List (USML) which requires approval from the Department of Defense in order to make transfer of any technology, part or personnel to overseas, 22 U.S.C. § 2778(a)(1).

The fear against China grew in the late 1990s when the U.S government suspected that China had illegitimate access to confidential information regarding rocket technology, which could be used for its ICBM arsenals as well. Thus, the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 specifically mentioned China as a county to which any export of satellite and related technology is under stricter regulation than other countries, Strom Thurmond National Defense Authorization Act For Fiscal Year 1999, PL 105–261, § 1511(1). As a result, not only U.S. companies, but also national parties that use ITAR materials in their products were not allowed to use Chinese space launch services, Marcia S. Smith, China’s Space Program: An Overview, CRS Report RS21641, at 5.

The policy was designed to protect U.S. industry and national security. However, it is doubtful those policy goals have been successfully met. In order to use Chinese launching vehicle and get away from ITAR and other U.S. regulation, Franco-Italian satellite builder Thales Alenia Space developed “ITAR-free” products that do not use any ITAR regulated parts in their products. The company sold several sets of these satellites, attracting both Chinese and non-Chinese operators seeking to use Chinese launching fleets.

The reason why the Chinese launch seems so attractive is because they provide service at a much lower cost – even in the 1990s the Chinese launch was presumed to be at least 30% more economical than U.S. or European counterparts. The ITAR restriction was the only means to ensure U.S. advantage over Chinese launch despite the reliability issue. However, with such “ITAR-free” satellites, U.S. launch service providers are facing a direct threat and increased competition. Also, regardless of the U.S. restriction, China has already developed and maintained long range missile technology, an effective Multiple Independently-targetable Reentry Vehicle (MIRV) of its own, J Barry Patterson, China’s Space Program and Its Implications for the United States, (Apr. 19, 1995) (unpublished research report for Air War College Air University) at 21.

The space industry argues that the U.S. has more reliable technology that still attracts most satellite operators of the world. Yet, a reliable launch from U.S. or European vehicles could result in a loss of millions of dollars. China is likely to gain more customers, especially from the growing market of the developing countries. So far, one of the reasons why major satellite operators have refrained from using Chinese service was due to the fact that the U.S. government is one of their major contractors. However, that cannot prevent satellite operators to use a Chinese launch indefinitely; Eutelsat, which owns the W3C satellite also performs many U.S. based operations, but they chose to use an ITAR-free satellite for the Chinese rocket. Therefore, in order to protect the U.S. space industry, current ITAR and USML regulations should be modified to better serve the industry in more efficient ways.

Photo obtained from www.nationalgeographic.com.

Indeed, a recent article published by Bloomberg News indicates that national security advisors to top Republican candidates have strong ties to the defense industry.   In all, companies connected to these advisors have received over $40B in defense contracts since 2008.  William Schneider, former State Department undersecretary for security assistance, science and technology, and a current advisor to New Gingrich, serves on the board of a number of companies in the defense sector.  He’s on the board of a U.S. subsidiary of BAE Systems Plc., (Europe’s largest defense contractor), which makes the Army’s Bradley Fighting Vehicle and “provides information technology systems to American intelligence agencies and repair services to the U.S. Navy.”  He’s also on the board of MBDA Inc. (the U.S. subsidiary of Europe’s largest missile maker), as well as that of Defense Group Inc., a Falls Church, Virginia-based company “whose focus includes research and development in intelligence and cybersecurity.”   Alone, Defense Group has received roughly $208 million in defense-related contracts since 2008.

The article also lists a number of advisors to Mitt Romney with ties to the defense industry:  Michael Chertoff (former Homeland Security secretary), General Michael Hayden (former National Security Agency Director and Central Intelligence Agency Director), Cofer Black (former Central Intelligence Agency Director and State Department Counterterrorism Director),  Dov Zakheim (former Undersecretary of Defense), and Mary Beth Long (former Assistant Secretary of Defense Mary Beth Long).  More specifically, six companies that are tied to a number of the advisors above provide cybersecurity services to the federal government:  BAE, InfoZen Inc., and security-clearance company KeyPoint Government Solutions Inc. (all of which have Michael Chertoff as a board member); Motorola Solutions Inc. and Alion (whose boards include Michael Hayden); and Blackbird (where Cofer Black is a vice president).

Admittedly, it is arguably impossible in today’s political world for national security advisors to mainstream presidential candidates to be completely devoid of industry ties.  Indeed, President Obama famously (and controversially) violated his self-imposed ban on lobbyists in his administration with his 2009 nomination of William Lynn for Deputy Secretary of Defense.  Lynn joined Raytheon in 2002, and from then until his nomination in 2009 the defense industry giant  received $54B in government contracts.  The administration argued that Lynn was a “uniquely qualified” individual who should be able to serve “the public interest in these critical times,” and today, Mr. Romney and Mr. Gingrich would likely offer similar explanations.  However, the statistics above nonetheless illustrate that the connection between D.C. policymakers and the defense industry remains as strong as ever.

Photo obtained from talkingpointsmemo.com.

Although the materials Manning and Ellsberg released were not found to have compromised national security and posed no direct threat to the United States, they were both charged with violating 18 U.S.C. § 793(e), the Espionage Act of 1917. This federal statute states it is a criminal offense for anyone with unauthorized possession to willfully release and communicate information relating to the national defense that could cause damage to the United States. In 1919, the U.S. Supreme Court upheld the Espionage Act’s constitutionality in Schneck v. United States and ruled that words which would ordinarily be within the freedom of speech protected by the First Amendment, may be prohibited when they are of such a nature and used in such circumstances as to create a clear and present danger to the United States.

Over the past few decades, courts have grappled with how best to apply the words of the Espionage Act to situations involving information leaks. Ellsberg was the first American prosecuted under the Espionage Act for leaking the Pentagon Papers; however, President Nixon’s attempt to discredit Ellsberg by authorizing an illegal break-in into Ellsberg’s psychiatrist’s office led to a mistral and the case was ultimately dismissed. More recently, in the American Israel Public Affairs Committee (AIPAC) lobbying case, the court made clear that to sustain a case under the Espionage Act, the government would have to prove beyond a reasonable doubt that the defendants had a specific criminal intent to injure the United States and that they acted in bad faith. Since the defendants argued they wanted to broaden awareness of Iran’s threat to harm the United States and the prosecutors could not show that the defendants possessed all the capable mental states under the Espionage Act, the charges were dropped in 2009.

Since Manning’s pre-trial hearing is currently underway, it will be a while, if at all, before the prosecution has a chance to show that Manning’s actions satisfied the intent requirement of the Espionage Act. If court-martialed, Manning’s charges are subject to the Uniform Code of Military Justice (UCMJ), which has several specific provisions related to espionage. One of these provisions specifically includes the Espionage Act of 1917, which is applied through Article 134 of the UCMJ. Previous court-martial cases under Article 134 have resulted in imprisonment, dishonorable discharge, and reductions to the lowest enlisted grade – providing some foresight into possible consequences of Manning’s actions if he is convicted. ( See United States v. Diaz; United States v. Anzalone; United States v. McGuinness; United States v. Flemming).

Although Ellsberg emerged unscathed from President Nixon’s threats to throw him in prison for releasing the Pentagon Papers and one could only speculate the result of Manning’s fate, policy-makers have been forced to question the boundaries of free speech and how to balance that freedom with the need to protect sensitive government information and U.S. national security. Furthermore, Ellsberg and Manning’s cases have indicated that although the Espionage Act may seemingly have the capability to effectively prosecute leakers of classified information, many legal experts argue that the statute is arcane, vague, and antiquated. As a result, on December 16, 2010, House Judiciary Committee Chairman John Conyers (D-Michigan) held a hearing entitled, “The Espionage Act and the Legal and Constitutional Issues Raised By WikiLeaks,” as a preliminarily push to overhaul the 1917 statute. While committee members and panelists disagreed over how to specifically reform the statute, they all agreed that any solution should reconcile the values of secrecy and accountability. If an appropriate balance is eventually achieved, the government will be guaranteed with a strong authority to prohibit leaks, and individuals, such as Manning and Ellsberg, will be entitled to an expansive right to disseminate information to the public.

Photo obtained from iam.bradleymanning.org.

Many of the executive powers granted by this bill already exist: both the Bush and Obama administrations have argued that the 2001 Authorization for the Use of Military Force (AUMF), signed in the wake of the 9/11 terrorist attacks, already authorizes indefinite detention and the targeting of those who “substantially supported” Al Qaeda or its allies.  As such, the bill’s supporters argue that it just codifies existing practices.  However, enshrining indefinite detention into law is an unprecedented move that has not occurred since the McCarthy era when Congress overrode President Truman’s veto to pass the Internal Security Act of 1950, permitting the imprisonment of Communists and other “subversives” without due process or fair trials.  President Obama has never rejected the idea of executive power of indefinite detention and has in fact made use of it, but has never gone so far as to sign it into law.  Now, any hopes that indefinite detention could have become a thing of the past have been dashed.

As the House and Senate debated the 2012 National Defense Authorization, the Obama Administration threatened to veto “[a]ny bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”  However, on December 14, 2011, the President announced that adjustments made by a House-Senate conference committee had satisfied the Administration’s concerns about the bill.

The truly distressing issue is that despite its rhetoric about protecting “fundamental American principles,” the White House’s objections to the proposed bill were not substantive concerns about the erosion of civil liberties or the idea of indefinite detention, even of U.S. citizens.  Rather, its concern was that the bill would limit the executive’s ability to decide how to handle detainees, and leave too much power in the hands of Congress.  In other words, the Administration’s objection to the bill was that the executive was not granted enough detention power.  The modifications made in conference gave the White House the “flexibility” it claimed were necessary for its counterterrorism policies: they did not remove the troubling provisions that curb civil liberties and place stringent restrictions on Guantanamo transfers (which the President had also previously threatened to veto).  Yet this was enough to alleviate the White House’s concerns.

The Administration’s willingness to compromise civil liberties is further evidenced by a revelation from Senator Carl Levin, one of the main proponents of the bill, who announced that the Administration itself demanded that a provision in the original draft exempting U.S. citizens from military detention be removed.  That provision was one of the few limitations placed on executive power – that American citizens could not be detained on U.S. soil.  By requiring that it be removed, the White House has shown its true motivation in threatening to veto the bill: ensuring that it did not contain any limits on the President’s detention powers, not protecting civil liberties and the rule of law.

Furthermore, these actions indicate that the 2001 AUMF, instead of being considered an outdated piece of legislation closely tied to 9/11, will continue to provide the basis for expanded executive power and military action for the foreseeable future.  With Osama bin Laden dead, the wars in Afghanistan and Iraq ending, and U.S. officials acknowledging that Al-Qaeda is no longer the great threat it once posed, the question arises as to whether expanded military powers are really necessary at this point.  However, in ratifying the 2012 NDAA with its continued reliance on the AUMF, the President and Congress have signaled that the vaguely defined War on Terror will continue indefinitely at the expense of due process rights and civil liberties.

Many of the executive powers granted by this bill already exist: both the Bush and Obama administrations have argued that the 2001 Authorization for the Use of Military Force (AUMF), signed in the wake of the 9/11 terrorist attacks, already authorizes indefinite detention and the targeting of those who “substantially supported” Al Qaeda or its allies.  As such, the bill’s supporters argue that it just codifies existing practices.  However, enshrining indefinite detention into law is an unprecedented move that has not occurred since the McCarthy era when Congress overrode President Truman’s veto to pass the Internal Security Act of 1950, permitting the imprisonment of Communists and other “subversives” without due process or fair trials.  President Obama has never rejected the idea of executive power of indefinite detention and has in fact made use of it, but has never gone so far as to sign it into law.  Now, any hopes that indefinite detention could have become a thing of the past have been dashed.

As the House and Senate debated the 2012 National Defense Authorization, the Obama Administration threatened to veto “[a]ny bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto.”  However, on December 14, 2011, the President announced that adjustments made by a House-Senate conference committee had satisfied the Administration’s concerns about the bill.

The truly distressing issue is that despite its rhetoric about protecting “fundamental American principles,” the White House’s objections to the proposed bill were not substantive concerns about the erosion of civil liberties or the idea of indefinite detention, even of U.S. citizens.  Rather, its concern was that the bill would limit the executive’s ability to decide how to handle detainees, and leave too much power in the hands of Congress.  In other words, the Administration’s objection to the bill was that the executive was not granted enough detention power.  The modifications made in conference gave the White House the “flexibility” it claimed were necessary for its counterterrorism policies: they did not remove the troubling provisions that curb civil liberties and place stringent restrictions on Guantanamo transfers (which the President had also previously threatened to veto).  Yet this was enough to alleviate the White House’s concerns.

The Administration’s willingness to compromise civil liberties is further evidenced by a revelation from Senator Carl Levin, one of the main proponents of the bill, who announced that the Administration itself demanded that a provision in the original draft exempting U.S. citizens from military detention be removed.  That provision was one of the few limitations placed on executive power – that American citizens could not be detained on U.S. soil.  By requiring that it be removed, the White House has shown its true motivation in threatening to veto the bill: ensuring that it did not contain any limits on the President’s detention powers, not protecting civil liberties and the rule of law.

Furthermore, these actions indicate that the 2001 AUMF, instead of being considered an outdated piece of legislation closely tied to 9/11, will continue to provide the basis for expanded executive power and military action for the foreseeable future.  With Osama bin Laden dead, the wars in Afghanistan and Iraq ending, and U.S. officials acknowledging that Al-Qaeda is no longer the great threat it once posed, the question arises as to whether expanded military powers are really necessary at this point.  However, in ratifying the 2012 NDAA with its continued reliance on the AUMF, the President and Congress have signaled that the vaguely defined  War on Terror will continue indefinitely at the expense of due process rights and civil liberties.

Photo obtained from jtfgtmo.southcom.mil.

Recently, the DEA has provided crucial support to Mexican law enforcement. In February 2011, DEA informants helped Mexican officials apprehend suspects linked to the death of Customs, Immigration, and Enforcement agent Jaime Zapata. Another DEA informant led Mexican authorities to Mansour Arbabsiar, who allegedly plotted to assassinate the Saudi ambassador in Washington, DC. According to officials, Arbabsiar traveled to Mexico intending to meet with members of Los Zetas, a powerful Mexican drug cartel. Instead, Arbabsiar met with a DEA informant, who informed authorities of the plot. Arbabsiar was arrested upon reentering the United States.

In March 2011, the DEA expanded the use of unmanned aerial vehicles. Initially, the use of the drones in was secret. However in March, the United States and Mexico publicly agreed to conduct drone flights over Mexico. Officials emphasized that drone flights were under the strict control and supervision of Mexican authorities.

Additionally, DEA agents have played an increasingly important role in Mexican ground operations.  Earlier this year, agents cooperated with a Mexican counternarcotics unit in an operation to arrest Jose Antonio Hernandez Acosta. Officials believed Hernandez Acosta was responsible for hundreds of deaths in Ciudad Juarez, including the deaths of two American consulate employees. During the search for Hernandez Acosta, DEA agents provided real time intelligence to Mexican law enforcement officers.

Further, DEA agents laundered millions of dollars from Mexican cartels in an effort to learn how the cartels operate. During some operations, DEA agents accompanied undercover Mexican agents while they collected drug traffickers’ cash. Subsequently, American agents placed the cash in accounts selected by the traffickers or in accounts set up by the agents.

Additionally, the United States and Mexico agreed to permit DEA and CIA agents to use an intelligence post on a Mexican military base. The post is modeled after the “fusion intelligence centers” that the United States uses in Iraq and Afghanistan.

Despite the DEA’s success, Mexican and American lawmakers are skeptical about the DEA’s new role. Under Mexican law, the legal basis for American operations in Mexico is unclear. The Mexican Constitution prohibits foreign military and law enforcement officials from conducting operations in Mexico, except in extremely limited situations.

Accordingly, because Mexico is kept in the dark about American intelligence assets in Mexico, the legal basis for DEA intelligence operations is unclear. The legality of the DEA’s money laundering operation is also ambiguous. Lawmakers worry that instead of fighting crime the DEA is facilitating crime. In the United States, Representative Darrell Issa (R-CA) noted that money laundering operations were banned by Mexico in 1998 after American agents conducted one but failed to inform Mexican authorities. Representative Issa has asked Attorney General Eric Holder to brief his staff on the DEA’s activities by Thursday. Additionally, Mexican lawmakers have characterized the DEA’s money laundering operation as a violation of the trust between Mexico and the United States.

Despite the criticism, supporters of the DEA stress the benefits of the DEA’s new role in Mexico. Current and former DEA agents note that access to the cartels’ bank accounts allows agents to penetrate deep into drug trafficking organizations. Other supporters argue that a network of informants gives the DEA access to better intelligence.

Photo obtained from www.tlcv.org.