Wednesday, December 24, 2003


Feedback to:

By William Fisher

As 2003 draws to a close, one of the nagging unanswered questions is this: Why did the United States invade Iraq? By which I mean: Did we do it because, as President Bush said, we faced an imminent threat from Iraq’s weapons of mass destruction? Or did we do it to begin a ‘revolutionary’ process of ‘democratizing’ the Arab Middle East?

If we examine US actions solely on the basis of the Administration’s words and the timeline of the invasion, we are drawn to the first answer: WMD, and its occult connections to Al Queda, and some Iraqi’s itchy finger on a nuclear trigger. After all, Mr. Bush’s Wilsonian rhetoric about making the Middle East safe for democracy was not enunciated until many months after our invasion. Perhaps that was simply another deception. Maybe Mr. Bush had to find a noble-sounding, fully-retrofitted, Don Quixote-esque rationale to divert attention from the missing WMD and our obvious lack of trustworthy intelligence regarding what we should expect to happen after the invasion.

On the other hand, the notion of using US military power to democratize the Arab Middle East has long been a staple of the neoconservative agenda – an agenda constantly and forcefully espoused by Administration officials at the highest levels. Was our invasion perhaps a case of Bush actually beginning to implement the neocon blueprint, while telling the world it was about WMD because, as one senior Administration official asserted, “WMD was the one thing we could all agree on”?

Mr. Bush can now ignore the question. With the capture of Saddam Hussein, he can now merely claim, in the simplistic one-dimensional syntax he is so fond of, that the world is a safer place without this despicable tyrant. A nicer place certainly. A safer place will be for forthcoming events and the perspective of historians to judge.

But let us assume that, from the get-go, regardless of what he said, the President’s real purpose was to bring democracy to the Arab Middle East. Is he winning? Let’s examine the scorecard.

In the Arab Middle East, respect for the United States has never been lower. We have zero credibility. We are seen as an occupier and a bully, even by most of those who welcomed us to Iraq. And we are seen as the proxy for and supporter of another occupier: Israel. We were the driving force behind the creation of the United Nations, but we were unable to summon the patience to stay the course to have honest dialog with its naysayers in ‘old Europe’, and chose ‘bring ‘em on’ unilateralism instead. We invaded Afghanistan, threw the bad guys out, and then largely said ‘sayonara’. Can there be a country in the Arab Middle East that doesn’t wonder whether this is the fate that awaits them next? For the past three decades, we have cozied up to the authoritarian leaders of the Arab Middle East – including Iraq – pumped billions of dollars into aid and political cover for them while turning two blind eyes to their shortcomings, and now, suddenly, the sleeping quarterback has awakened, and wants to move the goalposts. Are we winning the hearts and minds battle? Hardly. It is one of the great paradoxes of our time that the country that virtually invented modern advertising and marketing seems paralyzed by the task of communicating the values of the United States. Those we would ‘democratize’ – the Arab Street, as it were – feed on a daily media diet in which the Israeli-Palestinian conflict is the main food group. Yet the Bush Administration is eerily silent on this centrality. One wonders whether anyone in the Bush Administration appreciates that, whether for reasons of principle or cynical opportunism, a peaceful resolution of the Palestinian issue could be the catalyst for democratization they claim to be seeking.

Then, as if to rub ‘old Europe’s’ nose in it, our Mr. Wolfowitz issued his ‘no-play-no-pay’ edict. Which seems to have led to one of the few positive initiatives of this last week of 2003: the dispatch of former Secretary of State James Baker to Europe, ostensibly to discuss Iraqi debt forgiveness. But Baker’s mission is far larger than debt reduction. First, he will make it clear that ‘no-pay-no-play’ is off the table. He will try to heal the rifts between the US and its traditional allies. But far more important, James Baker is absolute anathema to the neoconservatives in the US Government. He stands for tough but fair diplomacy – a word that has been expunged from the neocon lexicon. Choosing him, let us pray, may give all of us a bit of hope that the President is having second thoughts about the US standing virtually alone in the world.

Rereading these year-end musings, I am prompted to say what is too often forgotten by people in my business: I’m happy I was lucky enough to have been born in a country where saying the things I’ve said doesn’t land me in jail!

Friday, December 19, 2003


Feedback to:


Most of the discussion about Saddam Hussein’s trial has focused on where, by whom, how soon, and by what kind of court he should be tried. These are serious issues that need to be addressed. But there is a far more complex question that few are addressing: can he be convicted?

The reason is that there may be no ‘smoking gun’ that ties Saddam directly to either crimes against humanity or to genocide. And if there is no smoking gun, the reason is probably the system of ‘delegation’ that Hussein used to carry out his alleged crimes. In short, he used others to do his dirty work, and there may well be no paper trail that leads back to Saddam’s signature on a piece of paper, or witnesses to an order who are willing to come forward to offer testimony.

The other way of approaching the issue of guilt is known as ‘command responsibility’. This means not only that Saddam may have given general verbal orders, or unspecified authority to his lieutenants, to carry out criminal acts, but importantly that he personally would have to have known the consequences of such orders or authorities. This is never easy to prove in a court of law, and it may be especially difficult to prove because of the Byzantine security system Saddam constructed to distance himself from direct culpability.

The big ‘ifs’ here are based on the assumption that Hussein’s trial will be conducted not as some kind of kangaroo court, but as a professional legal proceding, conducted professionally, by professionals. If it is anything less than that, whatever verdicts are made will not be credible in the international community. More important, while they may exact retribution, they will teach Iraq nothing about how justice must be achieved within a democratic context.

What we know now is that, while the US Government says it has amassed voluminous evidence against Hussein, it is unclear whether this ‘evidence’ will rise to the level of smoking gun or even command responsibility in a credible court of law. We also know that Hussein will have no shortage of lawyers, and that they will challenge every shred of evidence introduced by the prosecution. And we know that, for both sides, preparation of the case against or for Hussein will be a lengthy and complicated process. All this means that, if Hussein’s trial is to have any credibility, it will not begin any time soon. Most legal experts estimate that it may take up to two years.

Another issue that must be addressed is the scope of the prosecution. Those closest to Hussein clearly have blood on their hands and should be tried as expeditiously as possible. But should the trials of Saddam and his lieutenants also include reference to the many from outside Iraq who facilitated his iron grip on power? These players would surely include those, like the United States, Russia, France and many others who, during and after the Iran-Iraq war, were only too willing to provide Iraq with the weapons and know-how to facilitate Saddam’s iron grip on power and repression.

Given these conditions, many legal scholars are suggesting that Iraq’s war crimes trials begin not with Saddam Hussein, but with his key lieutenants – those directly responsible for carrying out the atrocities we all know were committed. It may be in the pragmatic interests of justice to take this bottom-up approach to accountability, if for no other reason than that their guilt may be far easier to prove. And proving their guilt may provide those convicted with major incentives to testify against their former leader.

This approach may well frustrate the US Government, the Provisional Authority, Iraq’s Governing Council, and the millions of Iraqis who were victims of Saddam’s brutality. All these players are hungry for retribution. And well they should be. But it took 35 years for Saddam Hussein to compile the catalog of horrors for which he will eventually be tried. The cause of justice will not be compromised by prosecuting him in the most careful, professional and credible way, even if it takes a little longer.

About the author: William Fisher has managed international development programs for the US State Department and the US Agency for International Development in the Middle East and elsewhere. He served in the international affairs area in the Kennedy Administration and is a former journalist.


Feedback to:

By William Fisher

Dear Santa:

Even though we’ve captured The Big Enchilada, my wish list this year is longer than usual. I hope you can find some time to help me out.

I wish I could understand why so many folks have it in for me over Iraq. All I ever wanted to do was to get rid of Saddam and free his people to enjoy their lives the way we do. Now folks are saying we just want to take the oil money and rule the Middle East. That just ain’t so. Heck, we can’t even rule Cincinnati! But I just knew that guy was a real urgent threat to us, and that I couldn’t afford to diddle around with those UN pin-stripers any more. Sure, I had to sell the idea, and I did. Now folks are saying I oversold it. So it would be a big help if we could find some weapons of mass destruction, or a couple of nucular (sic) bombs, or some kind of smoking-gun link to that other guy. I know your reindeer fly just about everywhere, and I’d be grateful for a heads-up if you see anything.

I wish we could find that other guy who’s also giving me heartburn. My people keep telling me different stories about where he is, but just between you and me, I don’t think they really know. You know how important it is that we catch him because of what he did to us, and we can use all the help we can get. Would you see what you can do? I’d sure appreciate it.

I wish we could hightail it out of Afghanistan too. The idea that we somehow swapped Taliban for warlords is really freaking me out. I think folks there don’t really appreciate all we’ve done – just look at kids going to school, women going to work, hospitals open, a new major road just finished, and a whole lot more. That’s not nothing. But folks there still keep shooting at us. Maybe they’d like to see our GIs helping with the poppy harvest!

I wish the Israelis and the Palestinians would start acting like grown-ups. My people and I spent an awful lot of time designing a really good roadmap and we expected both sides to get to work on it right away. It was all there on paper, I sent one of our State Department guys over to see that it got done, and I still can’t understand why the whole thing just blew up. Sharon’s fence building and still more settlements weren’t in my roadmap. Arafat was out of it too. The guy they picked for PM should have just got his men and gone and arrested the bombers and brought them in like trophies. Then maybe we’d have seen some real action from the Israelis. Well, the new guy the PA chose better do a better job.

I wish that folks would spend a little more time listening to what I’ve been saying about democracy. I’ve got the best speechwriters money can buy and I know they got it right. And besides, you and I know that democracy is swell, that we’ve had it for a couple of hundred years now, and that once other folks have it, they can do just about anything they set their minds to, and that anyone who really wants it can have it. It’s a super idea, but it has to be sold. Hell, even our founding fathers had to sell it. These days, a lot of folks are saying I’m over-selling it, trying to force democracy down people’s throats. That’s just plain bull. What I’m doing is just trying to give them a taste of how sweet it is, and I need a lot of help getting folks to listen and believe and understand.

I wish things were more peaceful here at home too. After all, it’s holiday time. But no sooner do we get this new medicare thing signed than I hear folks starting to say I’m giving away their health care money to drug companies and HMOs. The seniors complain about their health costs, younger folks run to the mall with their unemployment checks and then complain we’re not doing enough to get them back to work, and the kids and their parents bellyache about getting a lousy education and not being able to afford college. Well, I’ve said it over and over, and some folks just never get it: government can’t do it all, and sooner or later folks will just have to start doing some things for themselves. And that includes gay marriages. Then, there’s this contract thing. Because of trigger-finger Wolfowitz, I’ve had to sit on the phone for a couple of days now, trying to explain to my soul-mate in the Kremlin and the new guy in Canada and our fair-weather friends in ‘old’ Europe that they shouldn’t lose any sleep over getting work in Iraq or that other place, and that they can still help by forgiving the debt. I hope they got the message. I’m still having trouble getting folks to understand why we have to tap more phones and, as if I didn’t have enough on my plate, the guy from China was just here, and the whole town was having an anxiety attack. I guess they think I’m about to send a couple of carriers to show our support for Taiwan. Well, let me tell you a couple things, Santa. First thing is we don’t have any carriers to spare. Second thing is if we don’t stay in bed with China, we’ll have to deal with North Korea. And there won’t be any toys for the kids next Christmas. Believe me, Santa, there are days when I’d be more than happy to give this job to any of the nine folks out there who’re trying to get it.

Santa, I know you’re pretty busy this time of year, but if I’ve got any markers out there with you, this is the time I need to call them in. I sure would be grateful for your help.




Feedback to:

By William Fisher

When I was a kid in the Third Grade at public school 99 in Brooklyn, our teacher, Mrs. Lamb, established a practice of checking all those who returned from play break for clean hands, as opposed to dirt under the fingernails. The Lamb Test rewarded the ‘clean hands’ students with little silver-wrapped sweets, which Mrs. Lamb carried about in her bulging pockets. No sweets for those who failed.

As bizarre as it may seem, that’s the image that flashed through my mind when I read in The New York Times that a new Pentagon Directive, issued by deputy defense secretary Paul M. Wolfowitz, had barred, among others, French, German and Russian, Canadian and other companies from competing for $18.6 billion in contracts for the reconstruction of Iraq. This ‘no-bid’ list consists of those countries that declined to support the US invasion of Iraq. Many of the 60-odd countries on the ‘OK-to-bid’ list are developing countries too lacking in resources and expertise to reconstruct much of anything.

What’s wrong with this picture?

First, the Pentagon Directive claimed the step " necessary for the protection of the essential security interests of the United States...” What essential security interests do Mr. Wolfowitz, et al, have in mind? The Directive is silent on that point. It is also silent on explaining how allowing these companies to join in the competition for the contracts would hurt American security interests.

Second, there has been a torrent of rhetoric from Administration and other sources suggesting the urgency of ‘putting an international face’ on the reconstruction of Iraq. The Pentagon Directive asserted that ”limiting competition for prime contracts will encourage the expansion of international cooperation in Iraq and in future efforts". Exactly how a no-bid list advances that position is unclear. It sounds more like the Bush “either you’re with us or you’re against us” post-9/11 dictum.

Third, the credibility of the entire contracting process in Iraq has been severely damaged by the number of no-bid “sweetheart” contracts awarded by the US to friends and former associates of Vice President Cheney and other Administration figures. Just how the exclusion of these potential prime contractors will improve our credibility is a mystery. Bidding is not necessarily winning; it is simply bidding. Companies from countries on the no-bid list are already working in Iraq as subcontractors to US firms. If they are acceptable as subcontractors, why are they unacceptable as prime contractors?

Fourth, most thoughtful observers of our predicament in Iraq believe that this should be time when the US and its coalition partners should be working overtime to try to repair, rather than further exacerbate, the deep divisions that developed between the US and major European and other nations in the run-up to the Iraq war. Surely someone in the Bush Administration must be aware that this latest action is likely to have exactly the opposite effect. Why? It removes one of the more important incentives the Europeans and others have left to play a more important role in the reconstruction process. It clouds their role in related issues such as Iraqi debt forgiveness. And it also removes one of the few remaining leverage points the Bush Administration has with these countries, which, like every other sovereign state, do not take kindly to public embarrassment.

The Pentagon Directive was issued on a Friday, the day policy-makers typically use to release information they wish will get least attention by the media. It was not made public until the following Monday. At Mr. Rumsfeld’s press briefing on that day, not a single question was asked about this issue. The deception appeared to have worked – for a while. With the exception of The New York Times and a few other media outlets, this latest coup appeared to have slipped, as it were, under the radar. The deception strategy seemed to be working.

But by Tuesday, most of the key countries on the ‘no-bid’ list – no doubt after consulting with their home governments -- were responding with gusto, questioning its legality under WTO rules, pointing out that their countries were already participating as subcontractors, and hinting darkly at how the Pentagon’s action would make it more difficult for the no-bid countries to cooperate on such related issues as Iraqi debt forgiveness. Canada, which did not support the war but which has nevertheless pledged $250 million for Iraqi reconstruction, was particularly outraged.

Nor were objections limited to countries on the ‘no bid’ list. A Republican congressman, recently returned from Iraq, told The New York Times that it was a mistake to exclude particular countries from the rebuilding effort. "…we should do whatever we can to draw in the French, the Germans, the Russians and others into the process," said Congressman Christopher Shays of Connecticut. In a report issued along with Congressman Frank R. Wolf, Republican of Virginia, Mr. Shays said, "The administration should redouble efforts to internationalize the rebuilding of Iraq."

So what we have here is yet another example of the ideology of Bush ‘bring ‘em on’ unilateralism trumping the development of any real success strategy for Iraq. It could be another very costly and unnecessary error that will further damage US credibility in the Middle East and ultimately disadvantage the Iraqi people by slowing progress toward sovereignty.

If anyone still believes that ‘internationalization’ is still an Administration goal, and not merely the wooly rhetoric of public diplomacy, there has to be a better way than Mrs. Lamb’s ‘clean-hands’ policy to achieve it.

About the author: William Fisher is an international development specialist who has worked extensively in the Middle East for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and is a former journalist.

Friday, December 12, 2003

Reassessing Iraq and other colonial handiwork

Feedback to:

The following piece is the work of Rami G. Khouri, Executive Editor of The Daily Star newspaper in Beirut. It is posted here with permission and thanks.

The former president of the US Council on Foreign Relations, Les Gelb, has sparked a spirited debate with his suggestion that the best possible solution for Iraq’s future could be to split up the country into three states, comprising the predominantly Kurdish north, Sunni center, and Shiite south. I am not for or against the specific suggestion, whose fate is for Iraqis themselves to determine in the end. I have been to Iraq a few times, but do not know the country well enough to presume to weigh in on the best configuration for its future sovereignty. I trust the Iraqi people enough to know that they will make a sensible decision if they are given the opportunity to determine their own national fate.
But this is the big question that haunts Iraq today and that has traumatized much of the modern Arab world: Will the Iraqis be given an opportunity to decide their own fate? This is not a frivolous question. The fact is, the Iraqis did not have a choice or a voice when their country was manufactured by the British colonial office early last century. Perhaps this is why, for the second time in a century, the British Army is in Basra again, ruling an occupied people and contemplating their future condition.
More significant than the fascinating issue of whether Iraq makes sense as one or three countries is how this fits into the picture of the larger Middle East. It would be wrong to debate whether we should have one or three Iraqs if we do not carry through that discussion to the rest of the Arab countries. The creation of modern Iraq was not done in a vacuum, but rather as part of a larger process of European colonization, decolonization, some recolonization, and now some neocolonization of parts of the Middle East.
The hard truth is that few if any modern Arab states were created according to the will of their own citizens. That’s why Arab national sovereignties, identities, and viabilities are so thin in most Arab countries, while concepts of tribalism, ethnic identity, Christian and Islamic religion, pan-Arabism, and other transnational identities remain so strong everywhere. And even after Arab states were created as artifacts of colonial state-craftsmanship, the citizenry rarely had an opportunity after independence to engage in the formative debates of statehood and sovereignty. The birth of the new Iraq today at the hands of the American midwife is a reminder of how most Arab countries were created by Western military powers and were endowed with governance systems largely defined by the West, reflecting European rather than indigenous values and traditions.
It is fascinating and relevant that the world rejoiced when the map of the former Soviet Union and the wider Soviet Empire was redrawn radically after the collapse of Communism. The world cheered as Soviet-dominated and -defined countries split into smaller units and some countries were reborn.
The map of Soviet political sovereignties turned out to be a historical hoax that was not worth preserving. New sovereignties and national configurations were established according to the democratic will of the people involved. A great enterprise of liberation and self-determination swept the former slave states of the Soviet Empire, and the world applauded, rightly.
At the same time, Western Europe has been moving in the other direction: Individual states come together in the European Union and form or share larger sovereignties, rather than splitting up into smaller ones. In both cases, national borders and their meaning are changing, according to the free will of the citizens involved.
I wonder if the people of the Arab world might expect a similar opportunity to define themselves and their nationalities, nationalisms, sovereignties, citizenships, and states? I am careful not to prejudge any outcome of such an exercise or to propose that some states close shop and others amalgamate or expand. This is up to the people of these states to determine.
What I do say, though, is that many of the fundamental distortions and disequilibria that plague the modern Arab world and lead to many chronic regional tensions ­ especially in fertile land, population, water, energy, markets, and minerals ­ can be traced back to the very colonial, largely self-serving, often whimsical, and slightly dysfunctional manner in which European powers drew lines on maps and manufactured Arab countries of very peculiar shapes, sizes, and resource endowments.
Iraqis themselves must respond to Les Gelb’s provocative suggestion that Iraq might better be recreated as three countries. I think it would be legitimate to expand this debate to the entire Arab world, whose citizens and people have never had the exhilarating opportunity of determining their own national configurations. It’s possible that in their wisdom they would decide to keep things just as they are. Or they might make radical or minor changes. They deserve that right. They deserve to experience the thrill of hearing the world applaud them as they define and redefine themselves, and configure and reconfigure their sovereign states.

Feedback to:

Tuesday, December 09, 2003

Can the Arab world get over its Palestinian complex?

Feedback to:

The following article was written by Michael Young, Opinion Editor of The Daily Star newspaper in Beirut, and was published there. It is reprinted here with permission and thanks.

It is odd that Geneva counted among its admirers the Argentinean writer Jorge Luis Borges, an inveterate reader of Kipling, Lovecraft and Swift. That this consumer of adventure should have developed a fondness for that grand anesthetic among cities merely illustrates just how paradoxical, too, seemed the effort of Palestinians and Israelis on Monday to disarm the high passion of their struggle on the sedate shores of Lake Leman.
The Geneva Initiative will continue to arouse interest, even as Israelis and Palestinians sink further into obstinate conflict. However, what the unofficial plan has done is highlight a deeper Middle Eastern pathology: For all its centrality to the Arab experience during the past half-century; for all the legitimate grievances it has aroused, the Palestinian national struggle has figuratively rendered the Arab world impotent. In their devotion to their Palestinian brethren, the Arabs have catastrophically impeded much-needed progress in other domains, so that deliverance may require transcending this Palestinian neurosis.
Nowhere was this better illustrated recently than in the reaction of many Arabs to US President George W. Bush’s speech before the National Endowment for Democracy. Bush stated that the United States had for too long backed autocratic regimes in the Middle East, and defined a vision for the future where such habits would, presumably, be abandoned. Skepticism is reasonable when politicians make promises, and Bush merits his share. However, what mainly greeted the speech in the Arab world was resentment, as if it were preferable to disown the American president than to make him practice what he preached.
The main justification for the ambient derision was the fate of the Palestinians. “How can Bush be sincere on democracy,” went the standard template of reaction, “when he continues to sanction Israeli abuse of the Palestinians?” The question was, and is, a fair one. But those asking it miss a fundamental point that has also eluded them in Iraq: It is far more profitable for America’s Arab critics to demand that the Bush administration fulfill its pledges, and use this as leverage to bring about Palestinian (and Iraqi) self-determination and democracy, than to fall back on futile and perennial doubt.
The Palestinian problem has also allowed countless Arab regimes to validate despotism and the over-militarization of their societies. While some might argue that this is natural when facing the reality, or possibility, of direct Israeli attack, the explanation is insufficient. For one thing, representative governments are even more adept than dictatorships at defending themselves; for another, open-ended autocracy has usually been implicitly justified, and accepted by Arab citizens, not because of an imminent threat from Israel, but because the Palestinian problem has yet to be resolved.
In so many words, the conveniently open wound of the Palestinian tragedy has allowed Arab regimes to exploit the ensuing outrage felt by their peoples, and to transform this into tolerance for authoritarian, security-obsessed systems perceived as necessary to fight (without ever fighting) a militarily superior Israel.
Specific states have also paid a heavy price for the sanctity of the Palestinian struggle ­ none more so than Lebanon. In fact, the country has had to cough up on two occasions: first, when the Lebanese were denied a chance to defend their sovereignty against the Palestinian national movement in the late 1960s and early 1970s, since the Arab world saw this as an affront to the holy cause; and second, today, because the region’s fixation on the Palestinians has taken the spotlight away from an issue that anywhere else would have provoked profound concern: Syria’s indefinite military presence in Lebanon.
So, Lebanon’s civil war began because the Arabs were too enraptured by Palestinian militancy to see the destructive impact this was having on the country’s society; and today the Lebanese are told that a Syrian departure must await a resolution of the Arab-Israeli, or, more specifically, the Palestinian-Israeli conflict.
The Palestinians themselves have fallen victim to the inviolability of their cause. Witness the reaction to the Geneva Initiative, as Palestinians have assailed the plan on the grounds that it sells the refugees down the river. Ultimately, any plan, to be endorsed by both Israelis and Palestinians, will have to at least partly do just that, and the Palestinian leadership knows this. Yet it has opted for vagueness, peddling the story that Palestinian leader Yasser Arafat rejected a deal at Camp David because the refugees would have been wronged. This has only raised expectations among refugees that they will someday return to Haifa and Jaffa ­ expectations that will doubtless be dashed for a majority of them.
That the Israelis and Palestinians should be reduced to negotiating virtual agreements would seem as good a sign as any that it is time for the Arab world to get on with its other priorities ­ democratization, a new, mutually-beneficial rapport with the United States, economic development, reasonable demilitarization, not to mention ending the glaring anomaly of Syria’s presence in Lebanon. The invitation is not to abandon the Palestinians, nor is this morally reasonable; it is to encourage Arabs to cease contemplating their region solely through a lens dating back to 1948.

Feedback to:

Monday, December 08, 2003


Feedback to:

By William Fisher

There is a windowless room on the seventh floor of the US Department of Justice building in Washington. Very few Americans know it’s there or what happens within its walls. Outside the US, even fewer people know of its existence. This is the home of America’s most secretive court: the Foreign Intelligence Surveillance Act Court (FISAC). And we need to know about it because what it does or doesn’t do can have a huge impact on the War Against Terror – and, many complain, on US civil liberties.

Here’s the background: The Court was established by Congress in 1978 as a Cold War tool to conduct secret domestic investigations of alleged enemy agents. In those days, it had little to do. Today, it is a virtual hive of activity, one of the principal centers of the Government’s domestic counter-terrorist activity. It is the origination point for Justice Department requests for “warrantless warrants” authorizing the FBI to conduct secret domestic wiretaps and other forms of snooping. The Department of Justice obtained 113 secret emergency search or electronic-surveillance authorizations in the year after 9/11, compared with 47 in the 23 years since its founding.

The court was originally established by Congress as part of the Foreign Intelligence Surveillance Act, but is now incorporated into what has become known as the USA Patriot Act. The Patriot Act was rushed through Congress without hearings six weeks after 9/11. It is staunchly defended by the Justice Department, which would like to see it expanded, while civil libertarians on both the Left and the Right continue to raise legal, moral and ethical questions about many of its provisions.

The seven judges who preside over the FISAC are appointed by the Chief Justice of the US Supreme Court, William A. Renquist. All are semi-retired Federal Judges. Atop the FISAC is the previously unknown Foreign Intelligence Surveillance Act Court of Review. (FISACR). The Review Court adjudicates disputes between the FISAC and the Justice Department. Its three judges are also semi-retired Federal Judges appointed by the Chief Justice. All are conservatives named to the bench by President Reagan. Until recently, the Review Court had virtually nothing to do; it heard its very first appeal – regarding implementation of part of the Patriot Act -- in 2003.

Here’s how the FISAC works. When Congress passed the original FISA, it put a “wall” between intelligence and law enforcement agencies after domestic spying abuses in the 1960s and 1970s. Federal Intelligence agencies have traditionally been forbidden to conduct domestic investigations, and the FISA Act continued to require strict court supervision over domestic intelligence efforts.

But the USA Patriot Act broke down those barriers. Among other things, it loosened standards for obtaining warrants. Prior to the passage of the new law, government officials had to prove their “primary” purpose for monitoring was foreign intelligence. Prosecutors in criminal cases must meet higher legal standards to win approval for searches or wiretaps than in intelligence cases. The Patriot Act changed the surveillance law to permit its use when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose" of an investigation. Backed by the new provisions, US Attorney General John Ashcroft dispatched a memorandum to FBI Director Robert Mueller and senior Justice Department officials, outlining ways to make it easier for investigators in espionage and terrorism cases to share information from searches or wiretaps with FBI criminal investigators.
But FISAC found, unanimously, that Ashcroft had pushed the envelope too far. His proposed procedures had lowered the "wall" between criminal investigations and intelligence gathering too much, and its provisions for sharing information between the two sides were "not reasonably designed" to prevent misuse of information in criminal cases. The ruling by the court came in a case in which the Justice Department approached FISAC for approval of surveillance of a US citizen who was alleged to be "aiding, abetting or conspiring with others in international terrorism."
The Court also said it had been misled dozens of times by the FBI and Justice Department officials. Documents released at the time showed that the court, which had not publicly disclosed any of its rulings in nearly two decades, said FBI and Justice officials in pursuit of search warrants or wiretap authorizations to spy on suspected terrorists had supplied erroneous information to the court on 75 occasions. The information was made public only because powerful members of a US Senate Committee demanded the documentation. Some of what they received:
§ In March 2000, the government revealed to the Court "disseminations of FISA information to criminal squads in the FBI's New York field office, and to the U.S. attorney's office for the Southern District of New York, without the required authorization of the Court as the 'wall' in four or five FISA cases."
§ In September 2000, "the government came forward to confess error in some 75 FISA applications related to major terrorist attacks directed against the United States. These included: a) an erroneous statement in the FBI director's FISA certification that the target of the FISA was not under criminal investigation; b) erroneous statements in the FISA affidavit of FBI agents concerning the separation of the overlapping intelligence and criminal investigations, and the unauthorized sharing of FISA information with FBI criminal investigators and assistant U.S. attorneys; and c) omissions of material facts from FBI FISA affidavits relating to a prior relationship between the FBI and a FISA target, and the interview of a FISA target by an assistant U.S. attorney.
§ In November 2000, the Court convened a "special meeting to consider the troubling number of inaccurate FBI affidavits in so many FISA applications." The Court made clear it would not accept inaccurate applications and demanded an investigation.
§ In March 2001, the government had to reveal yet another series of mishaps; in a situation where a "wall" had supposedly existed between separate intelligence and criminal squads, it turned out that "in fact all of the FBI agents were on the same squad and all of the screening was done by the one supervisor overseeing both investigations."
The court also said that intelligence gathered about terror suspects had been improperly shared with prosecutors and FBI agents handling criminal investigations. Because of these alleged improprieties, FISAC imposed restrictions on the procedures formulated by Ashcroft. The court said the information-sharing proposal was "not reasonably designed" to safeguard the privacy of Americans. The Court modified the procedures to require that whenever law enforcement officials meet with intelligence officers, such consultations and coordination must always include someone from Justice's Office of Intelligence Policy and Review, the office that works most closely with the Court and presents to it all applications for warrants.
But Justice bristled at the requirement for a "chaperon" being present at all meetings between the two sides. A senior Justice official said that requirement was a "significant procedural impediment." It took the case to the FISA Review Court, which lifted some restrictions placed on wiretaps and the sharing of information between law enforcement and intelligence officials. Ashcroft said the ruling, the first ever by the US Foreign Intelligence Surveillance Review Court, "revolutionizes our ability to investigate terrorists and prosecute terrorist acts."
Others were not as pleased. "We're disappointed with the decision, which suggests that [the spy court] exists only to rubber-stamp government decisions," said the American Civil Liberties Union.
Congressman John Conyers, Jr., Ranking Member of the House Judiciary Committee and Dean of the Congressional Black Caucus, issued the following statement regarding the decision to give the Justice Department broad authority in conducting wiretaps and other surveillance on terrorism suspects within the United States:
"Not only is this a despicable ruling, it is a ruling that was decided in secret behind closed doors. What the public does not know is that the court heard only a one-sided argument by the Justice Department and FBI, which have repeatedly lied and misinformed the lower FISA court when seeking authorizations for secret wiretaps and physical searches…The Administration's race down the slippery slope of eroding constitutional safeguards seems to have no end in sight. Today's disappointing decision constitutes an embarrassing step backwards for civil liberties in this country. Piece by piece, this Administration is dismantling the basic rights afforded to every American under the Constitution….”
And just this week, the Inspector General of the Justice Department reported there is a double standard of discipline, a lenient one for management and a strict one for employees.
Despite the Justice Department’s having amended its guidelines to win the FISA court's approval, the Bush administration took its case to a Federal Appeals Court. It challenged the spy-court's restrictions on the sharing of information between terrorism investigators and criminal investigators. In the appeal, Ashcroft said the lower court failed to acknowledge that the new law, passed in response to the Sept. 11 attacks, altered the standard lawyers must meet when seeking to monitor a person and share information between criminal detectives and terrorism investigators. Under the act, Ashcroft argued, federal lawyers may share information and monitor people in cases in which law enforcement is the primary interest. Government lawyers need only show there is a ‘significant’ foreign intelligence purpose related to the activity, Ashcroft said.

The Appeals Court overturned the FISAC decision, and ruled that the Justice Department has broad discretion in the use of wiretaps and other surveillance techniques to track suspected terrorists and spies. The ruling allows the Justice Department to get wiretap authority in the FISA secret intelligence court, under more relaxed standards than used in a regular criminal court, even if the investigation is not exclusively concerned with terrorism.

The 56-page opinion by the three-judge appeals panel overturning the FISAC decision said the expanded wiretap guidelines sought by Attorney General John Ashcroft under the new USA Patriot Act law do not violate the Constitution.

Critics said they feared government might use the change to employ espionage wiretaps in common criminal investigations, and there is growing evidence that this has indeed happened. The American Civil Liberties Union and several other groups argued that Ashcroft's proposed guidelines would unfairly restrict free speech and due process protections by giving the government far greater ability to listen to telephone conversations and read e-mail.
Senators Patrick Leahy (D-Vt.), Charles Grassley (R-Iowa) and Arlen Specter (R-Penn.) released a report concluding that the same systemic problems facing the FBI that were highlighted by Judiciary Committee oversight hearings held during the 107th Congress also affected its ability to fight terrorism both before and after the attacks of September 11. The report also outlined those agencies’ lack of cooperation in Congressional efforts to oversee their performance. The Report underscored the need for openness and oversight of the Justice Department and FBI. It also called for increased Congressional oversight of FBI efforts to snoop on public, high schools and university library users.
“No one is questioning the government's authority to prosecute spies and terrorists,” said Ann Beeson, litigation director of the ACLU's Technology and Liberty program. “But we do not need to waive the Constitution to do so.”

And a New York Times editorial found “more disturbing” the court's “substantive decision and the way the Justice Department is interpreting it. The decision gives the government a green light to remove the separation that has long existed between officials conducting surveillance on suspected foreign agents and criminal prosecutors investigating crimes. Attorney General John Ashcroft has announced that he intends to use it to sharply increase the number of domestic wiretaps, and that he will add lawyers at the F.B.I. and at federal prosecutors' offices around the country to hurry the process along. The Supreme Court should step in to restore the lower court's ruling, and Congress should redraft its statutes to clear up any confusion about what the law requires. One of the biggest challenges the nation faces is fighting foreign enemies without sacrificing civil liberties at home. Yesterday's ruling failed to rise to that challenge.”


An edited version of this article appeared in The Daily Star newspaper, Beirut.