Letter From The Capitol

Guantanamo After Hamdan: "Gee, Officer Krupke..."

Ace terror prosecutor Andy McCarthy reviews the wreckage of the first juror verdict at Gitmo, partially acquitting Osama's driver, Sami Hamdan, and giving him (jurors impose the sentence, with limited tribunal review) a ludicrously light sentence, which the judge largely commuted by marking more than 90% of it to time already served in detention.  Hamdan can be home (Yemen, which routinely releases detainees repatriated there) by Dec 30, unless the military holds him as an unlawful combatant, a move sure to spark global outrage that the trial was a farce.

The mentality of the lenient jurors was captured in an NY Post Page Six report with this quote from one al-Qaeda operative, whose view apparently resonated with the military commission jurors: "just a poor, uneducated guy who needed a job in a country with an overwhelmingly high unemployment rate."

Really?  We've hear this one before: It's the "Officer Krupke Defense"--the original version is in this "West Side Story" movie clip (5:40)--social deprivation excuses crime.

The folly of the tribunals is perfectly illustrated by this NY Sunday Times front-pager that informs us critics of tribunal trials still consider them not fully fair.  Writes the NYT reporter, in a three-page story not to be missed: "Nonetheless, the central question about the war crimes system remains unanswered after its first trial: Is it fair enough and open enough to meet Americans’ concept of justice?"  This should surprise no one.

Military lawyer Kyndra Miller Rotunda, who has actual Gitmo experience, offers detail from the Hamdan trial that shows, incredibly, that the US sent an incompetent prosecutor and judge into the courtroom, thus helping Hamdan.  The judge incorrectly instructed the jury that if the surface-to-air missiles found in Hamdan's car were intended for use against military targets the defendant did not commit a war crime.  And the prosecutor failed to object.  Worse, Hamdan's defense counsel was allowed to object to certain prosecution evidence as inadmissible hearsay, and then introduce hearsay evidence that helped his client, equally inadmissible, had the prosecutor been awake enough to object.  Oh, and the lenient sentence given Hamdan deprived us of any leverage to bargain for more information.  It gets better: Hamdan's counsel argued that Hamdan, as a mere chauffeur, knew not of the nefarious activities of his boss; yet he also argued to the court that Hamdan had provided us with valuable intelligence after his capture, and thus deserved a lenient sentence!

Rotunda provides much more detail in her brilliant book, Honor Bound (2008), her account of her career as a military lawyer, one actually involved extensively in detentions and proceedings at Guantanamo.  She also offers tales outside Gitmo.  As well there are fascinating details, historical and otherwise.  My favorite, news to me: the first wear crimes trials were held in...1474--yes, that 1474--by the Archduke of Austria. ( A mere 440 years later another Austrian archduke, Franz Ferdinand, made history by getting himself assassinated in Sarajevo on June 28, 1914; World War I started 5 weeks later.).

At training camp she made friends with an Uzbek immigrant who enlisted in the Army to serve her adopted country, only to find that an Afghani translator screamed abuse at her friend for not dressing like a traditional Muslim; sharia compliance is alive and well among military translators.  She tells how one Gitmo detainee asked to be held until the following spring, when the weather in his home country would be better.   In 24,000 interrogations, only three cases of abuse have been documented, two of which involved female interrogators acting in a sexually suggestive manner during questioning.  Incredibly, the International Committee of the Red Cross (ICRC) regards as abusive interrogation the practice of trained observers watching questioning behind a one-way mirror, looking for signs that the interviewee is lying.

The government discloses to detainee at trial far more information than legally required.  The result: Once detainees learn of the case against them they clam up and recant prior confessions.  Worse, until 2006 the military denied investigators access to information it had shared with detainees!  This is even crazier than the wall between intelligence and law enforcement that was one of the causes of the strategic surprise of the 9/11 attacks.

Rotunda offers examples of stupefying legal pettifogging.  Despite the president having signed a Congressionally-passed Authorization for Use of Military Force (AUMF) that covered those who aided al-Qaeda as well as members, some prosecutors argued that the Taliban, who had sheltered al-Qaeda in Afghanistan, were not within the lawful jurisdiction (power to hear a case) under the AUMF!  A second argument these legal eagles adopted was that the president's lawyers drafted the AUMF, and therefore it was not a true presidential directive!!  No president drafts a legal directive these days.

In applying conspiracy law to detainee trials, prosecutors required that the detainee have committed an "overt act" in furtherance of the conspiracy.  This is a narrower net than cast by criminal law, in which an overt act committed by any one member of a conspiracy makes all conspirators criminally liable.  Defense counsel filed numerous serial motions and then complained that their clients did not get speedy trials.

Rotunda argues (correctly) that war crimes trials should, as usually is the case, be held after the end of the conflict.  Getting detainees to disclose information after they are convicted, by promising a lenient sentence, hardly works if they will still be held in detention anyway, as unlawful combatants.  She suggests that the war can be considered over when all US troops fighting terror come home from overseas.

The latest development, as a New York Sun report tells us, is that at another Gitmo proceeding involving a teen terrorist who allegedly threw a grenade at US forces: A psychiatrist who told our interrogators that the detainee was lying and urged isolation of the detainee pleaded the Fifth Amendment when called by the defense to testify.  The detainee later attempted suicide.  (Prison is depressing, right?)

Perhaps most depressing: For much of the world and for global media, the US is accused of having lost "the moral high ground"  due to Abu Ghraib and Gitmo.  The former was a set of low-grade abuses that amounted to fraternity pranks played by under-supervised dolts on the night shift.  Most stories about Gitmo are simply false, but as the old saying goes, a lie travels around the world three times before the truth can put its boots on.

Rotunda tells how her training included watching videotapes of the brutal beheading of Wall Street Journal reporter Daniel Pearl, accomplished by using a pen-knife so that it took many minutes and maximized Pearl's horrific agony, and the stoning to death of a woman accused of adultery, an event that typically takes about 30 minutes to cause the victim's death.

Our losing the global public opinion battle happens because a pernicious double-standard is applied: We are judged by Olympian standards, higher than any ever met in human history; the terrorists are judged by sewer standards.  We do not do this in our courts, but in the court of public opinion we are being judged so.

In all, we ran afoul of "lawfare"--the hyper-legalization of warfare, because the administration, at the outset, failed to adopt a simple approach, in the tradition of the K.I.S.S. Rule: "Keep It Simple, Stupid!"  We should never have put any detainees on trial, but simply held them.  Trials are for criminals, with all due process rights, because our goal is to deprive them of their liberty, mostly as punishment.  A second category, lawful combatants, are entitled to full Geneva Convention rights, and are held as detainees for the duration of the conflict; the goal is prophylactic: keeping detainees from returning to the battlefield.  The third box, so to speak, is that for unlawful combatants.  These can be held as detainees, as well, and do not get full Geneva rights.  (Until the Supreme Court so ruled in 2004, they had no such rights; now they get some.)

By putting on trial people it intends to hold anyway--not grasping that such would be politically impossible, and seen as "bait and switch"--the administration set it self up for a fall.  By saying some process was due, it fell into a trap: Giving less due process rather than more always looks bad in today's media hothouse.

Our system has all the wrong biases: it is biased towards keeping the innocent out of jail, full disclosure of information to aid a defendant at trial, and endless rounds of legal review to be sure no one is wrongly held.  This is fine for criminal Justice, but terrible for terrorists.  And the rules are interpreted by judges trained in modern legal thinking, tilted towards defendant, -even among military lawyers.  Thus the Supreme Court this summer conferred habeas corpus rights on foreign terror suspects picked up and held overseas, a right without legal precedent in American or English history.

To be fair, though, no one could have anticipated the sustained ferocity of the campaign by an unholy trinity of lawyers, human rights activists and global media against the administration's program.  Despite having offered more process than ever before given detainees by anyone, nothing is good enough.  To a fearful extent this war, as former administration official Jack Goldsmith wrote, is "being lawyered to death."

Someday we may pay a horrific price for such hyper-legalist excess.

Nuclear Fallout: Pakistan and (Yes) Georgia

A Boston Globe report reveals that one casualty of the Russian invasion is that US efforts to track nuclear smuggling in the Caucasus have been halted, as US advisers fled Aug.9.  Twice in the past five years smugglers have been caught with small amounts of highly-enriched uranium.  Yet another reason why the failure of the Bush administration to send troops to prevent Georgia from being overrun by the Russians was a national security blunder of the highest order.

There is better news re Pakistan.  A New York Times front-pager reports on a CIA success: since 2001 the CIA has trained the Pakistanis on how to secure their nuclear bomb arsenal, estimated at 50 - 100 bombs.  Thus, despite Pervez Musharraf having stepped down as President, there is no cause at present for concern.  Worrisome, however, are deteriorating economic conditions that Pakistan's incompetent elected government seems unable to cope with.  Musharraf, a reluctant US ally who often played a double game, will not, says Condi Rice, get asylum in America if he needs it.  We did the same to the Shah of Iran.  America is not such a great friend to those who take risks on its behalf.  This is not the way to encourage future leaders to take domestic political risks to help us.

Hamas: A Son Defects

The son of a Hamas founder has defected to California and converted to Christianity.  His story is a gem.  Among other things, he advises us to stop dreaming about Palestinian acceptance of Israel as a legitimate state.  Do not expect Foggy Bottom to learn from this.  It will continue, in the next administration, to play in the Palestinian sandbox.

Al-Qaeda's Nasty Children

The following excellent analysis of how al-Qaesa is spawning both franchised and free-lance terror networks is re-published with permission from the consulting firm, Stratfor:

THE JIHADIST THREAT AND GRASSROOTS DEFENSE

             August 13, 2008

                  

By Fred Burton and Scott Stewart

Related Links

• The Devolution of Al Qaeda
• Terrorist Attack Cycle
• Surveillance and Countersurveillance

It has been a rough couple of weeks for the Egyptian al Qaeda contingent in Pakistan. On Aug. 12, Pakistani security sources confirmed that an Aug. 8 operation in Bajaur resulted in the death of al Qaeda leader Mustafa Abu al-Yazid, aka Sheikh Said al-Masri. Some posters on jihadist message boards have denied the reports, but al Qaeda itself has yet to release a statement on the issue. Al-Yazid was reportedly al Qaeda’s operational commander for Afghanistan, and some reports also claim he was responsible for planning attacks within Pakistan, such as the June 2 attack on the Danish Embassy.

If confirmed, al-Yazid’s death came just 11 days after the July 28 missile strike in South Waziristan that resulted in the death of al Qaeda’s lead chemical and biological weapons expert, Midhat Mursi al-Sayid Umar, also known as Abu Khabab al-Masri. The strike against al-Sayid also killed three other Egyptian al Qaeda commanders. In an ironic twist, the official al Qaeda eulogy for al-Sayid and his companions was given by al-Yazid.

Unconfirmed rumors also have swirled since the July 28 attack that al Qaeda No. 2 Ayman al-Zawahiri was either killed or seriously wounded in the same operation. An audiotape in which al-Zawahiri speaks out against Pakistani President Pervez Musharraf was recently released in an odd manner, in that it was given directly to a Pakistani news channel rather than via al Qaeda’s usual release pattern of having As-Sahab Media upload it directly to the Internet. The tape, in which al-Zawahiri speaks in English for the first time in a public pronouncement, is not convincing proof that al-Zawahiri was not wounded or killed. Obviously, al-Zawahiri’s loss would be another serious blow to the organization.

Al Qaeda’s current problems are nothing new. In fact, the United States and its allies have been attacking al Qaeda’s operational infrastructure consistently since 9/11. While the United States has not yet located and killed the al Qaeda apex leadership, it has done a very good job of eliminating senior operational commanders — the men in the al Qaeda hierarchy who actually plan and direct the militant Islamist group’s operations. The nature of their position means the operational commanders must have more contact with the outside world, and therefore become more vulnerable to being located and killed or captured.

Because of this campaign against al Qaeda’s operational infrastructure, Stratfor has been saying for some time now that we do not believe the core al Qaeda group poses a strategic threat to the U.S. homeland. However, that does not mean that the United States is completely free of danger when it comes to the jihadist threat. While the core al Qaeda group has been damaged, it still poses a tactical threat — and still can kill people. Furthermore, as the jihadist threat has devolved from one based primarily on al Qaeda the organization to one based on al Qaeda the movement, al Qaeda’s regional franchises and a nebulous array of grassroots jihadists must also be accounted for.

With al Qaeda’s operational structure under continued attack and the fact that there are no regional franchises in the Western Hemisphere, perhaps the most pressing jihadist threat to the U.S. homeland at the present time stems from grassroots jihadists.

Beyond the Cliches

There are many cliches used to describe grassroots jihadists. As we have long discussed, grassroots operatives tend to think globally and act locally — meaning they tend to be inspired by events abroad and yet strike close to home. Additionally, these operatives tend to be a mile wide but an inch deep — meaning that while there are many of them, they are often quite inept at terrorist tradecraft. These cliches are not just cute; they have a sound basis in reality, as a study of grassroots jihadists demonstrates.

There are two basic operational models that involve grassroots jihadists. The first operational model is one where an experienced operational commander is sent from the core al Qaeda group to assist the local grassroots cell. This is what we refer to as the “al Qaeda 1.0 operational model” since it literally is the first one we became familiar with. We saw this model used in many early jihadist operations, such as the 1993 World Trade Center bombing and the 1998 U.S. Embassy bombings in East Africa. It has also been employed in a number of thwarted plots, such as Operation Bojinka in 1995 and the millennium plots in 2000. This model also was used in the thwarted 2006 Heathrow airliner plot. 

The second grassroots operational model involves operatives who launch attacks themselves without external funding or direct operational guidance. This is what we refer to as the “al Qaeda 3.0 operational model.” Examples of attacks committed using this model include the November 1990 assassination of Rabbi Meir Kahane in New York, the July 21, 2005, London bombings, the July 2002 armed assault of the El Al Airlines ticket counter at Los Angeles International Airport and the botched June 2007 bombing attacks in London and Glasgow.

Something of a gray area exists around the borders of these two operational models, and at times it can be difficult to distinguish one from the other. For example, Mohammed Siddique Khan, the leader of the cell that carried out the July 7, 2005, London suicide bombings, had attended training camps in Pakistan with another member of the cell. While there, he had at least some contact with al Qaeda, since al Qaeda released a copy of the martyrdom videos the two made during their time in Pakistan.

Notably, these attacks show that most of these grassroots jihadists, whether as part of a 1.0 or a 3.0 structured cell, selected targets in close proximity to their place of residence. Even when such cells have established safe houses to store chemicals, to manufacture improvised explosive mixtures or to construct improvised explosive devices, those safe houses quite often have been close to the target and the attacker’s residence. Grassroots jihadists really do think globally and act locally.

A second notable aspect of several of these attacks is that these operatives lack terrorist tradecraft such as operational security and surveillance techniques. Blunders in these areas have frequently led to the groups being identified and nabbed before they could launch their attacks. Plain old police traffic stops have exposed jihadist cells such as the Virginia Jihad Network and have helped to thwart several other terror plots. 

Even when a grassroots group is able to execute its attack without detection, it often has been hampered by a lack of bomb-making skill. The failed July 21, 2005, London bombings and the June 2007 London and Glasgow attacks exemplify this flaw. Grassroots groups simply do not have the same level of training and operational experience as the professional operatives comprising the core al Qaeda group. Operationally, they are a mile wide and tend to be an inch deep.

Another consideration that comes to light while contemplating past grassroots cases is that lacking funding from al Qaeda core, grassroots operatives are likely to indulge in petty crimes such as credit card theft, cargo theft or armed robbery to fund their activities. For example, in July 2005, a grassroots cell in Torrance, Calif., was uncovered during an investigation into a string of armed robberies. After arresting one suspect, Levar Haney Washington, police who searched his apartment uncovered material indicating that Washington was part of a militant jihadist group planning to attack a number of targets in the Los Angeles area.

Truthfully, most grassroots operatives are far more likely to commit a criminal act such as document fraud or receiving stolen property than they are to have telephone conversations with Osama bin Laden. When they do commit such relatively minor crimes, it is local cops rather than some federal agency that will have the first interaction with them. This means that local police are an important piece of the counterterrorism defenses — they are, in essence, grassroots defenders.

Beyond Grassroots Jihadists

A recent study led by Brent Smith of the Terrorism Research Center at the University of Arkansas’ Fulbright College suggests that these trends extend beyond the grassroots jihadist threat. In a July article in the National Institute of Justice Journal, Smith noted that his research team studied 60 terrorist incidents in the United States over the past 25 years. The terrorist actors were from a cross-section of different ideological backgrounds, including domestic left-wing, domestic right-wing, domestic single-issue and international terrorists.

In the study, Smith and his colleagues identified the residences of 431 terrorist suspects and found that, overall, 44 percent of the attacks were conducted within 30 miles of the perpetrator’s place of residence and 51 percent were conducted within 90 miles of the residence. When broken down by type, the numbers were actually highest for international terrorists, with 59 percent of the suspects living within 30 miles of their target and 76 percent of the suspects residing within 90 miles.

Smith’s study also noted that many of the preparatory actions for the attacks occurred close to the attack site, with 65 percent of the environmental terrorists and 59 percent of the international terrorists studied conducting preparations for their attacks within 30 miles of their target sites. Of course, some preparatory actions, such as preoperational surveillance, by their very nature must be conducted within close proximity to the attack site. But still, the percentage of activity conducted near attack sites is noteworthy.

One other interesting result of Smith’s study was the timeline within which preparation for an attack was completed. For international groups, the preparation could take a year or more. But environmentalist and left-wing groups proved to be far more spontaneous, with a large portion of their preparation (88 and 91 percent, respectively) completed within two weeks of the attack. This means that prior to an attack, international terrorists are generally vulnerable to detection for far longer than are members of a domestic left-wing or environmentalist group.

Application

While there are always exceptions to the percentages, with people like Timothy McVeigh and Mohammed Atta traveling long distances to conduct preparatory acts and execute attacks, most people conducting terrorist attacks tend to operate in areas they are familiar with and environments they are comfortable in.

When we examine the spectrum of potential terrorist actors — from domestic people such as McVeigh and Eric Rudolph to international figures such as Mohammed Atta and Ahmed Ajaj — it is clear that a large number of them have had no prior interaction with federal law enforcement or intelligence officials and therefore no prior record identifying them as potential terrorism suspects. That means that even if they were stopped by a local police officer (as Atta was for driving without a license), any national-level checks would turn up negative. Because of this, it is extremely important for police officers and investigators to trust their instincts and follow up on hunches if a subject just doesn’t feel right. The Oklahoma state trooper who arrested McVeigh, the New Jersey state trooper who nabbed Yu Kikumura, or the rookie Murphy, N.C., officer who apprehended Eric Rudolph are all examples of cops who did this.

Of course, following your instincts is difficult to do when management is pressuring police officers and agents investigating cases such as document and financial fraud to close cases and not to drag them out by pursuing additional leads. Indeed, when Ahmed Ajaj was arrested in September 1992 for committing passport fraud, the case was quickly closed and authorities pretty much ignored that he had been transporting a large quantity of jihadist material, including bomb-making manuals and videos. Instead, he was sentenced to six months in jail for committing passport fraud and was then scheduled for deportation.

Had authorities taken the time to carefully review the materials in Ajaj’s briefcase, they would have found two boarding passes and two passports with exit stamps from Pakistan. Because of that oversight, no one noticed that Ajaj was traveling with a companion — a companion named Abdel Basit who entered the United States on a fraudulent Iraqi passport in the name Ramzi Yousef and who built the large truck-borne explosive device used in the 1993 World Trade Center bombing.

While many state and local departments have specialized intelligence or counterterrorism divisions, training on how to spot potential terrorist preparatory activity often does not go much further than those officers specifically assigned to the counterterrorism portfolio. In some jurisdictions, however, law enforcement managers not only give investigators the leeway to investigate potential terrorist activity, they also encourage their street officers to do so — and even provide training on how to identify such behavior.

In many jurisdictions, serious problems in information sharing persist. Much has been written about “the wall” that separated the FBI’s intelligence investigations from its criminal investigations and how that separation was detrimental to the U.S. government’s counterterrorism efforts prior to 9/11. The FBI is not the only place such a wall exists, however. In many state and local law enforcement departments, there is still a wide gulf separating the intelligence or counterterrorism division officers and the rest of the department. This means that information regarding cases that general crimes investigators are looking into — cases that very well could have a terrorism angle — does not make it to the officers working terrorism cases.

As the shift toward grassroots operatives continues, information pertaining to preparatory crimes will become even more critical. Identifying this activity and flagging it for follow-on investigation could mean the difference between a thwarted and a successful attack. As the grassroots threat emerges, the need for grassroots defense has never been greater.

Guantanamo: Losing by Winning

Tuesday's Guantanamo verdict was a welcome relief insofar as Osama's chauffeur was convicted on the charge of aiding and abetting al-Qaeda, for which he was sentenced to 5-1/2 years imprisonment; prosecutors has asked for 30 years.  Now the bad news: With credit for time served, Osama's driver will serve only 5 months, after which he must either be held as an unlawful combatant, or released for having served his sentence.  As this NY Sun report notes. the judge instructed the jurors to consider that the driver had served 7 years in confinement, and that he was the sole supporter of his wife and kids--How many people killed on 9/11 were sole supporters of their family?

But ominously for the administration, he was acquitted on the charge of conspiracy.  With only 4 of 6 jurors needed to convict, the intimation is that the administration will face hardship in pursuing aggressive charges; jurors are not inclined to give the benefit of doubt to the government, even as against unlawful combatants.  Predictably, liberal activists ridiculed the ruling.  One argument, forecast by LFTC: Because the military can hold the defendant as an unlawful combatant, regardless of the verdict, the verdict was dismissed as a "show trial."  BTW, know people by he company they keep and you will like Osama's driver even more.

The defendant was caught with two SA-7 shoulder-fired missiles in his possession, and item not normally carried by your average driver.  With apologies to Cole Porter:

It was just two little SAMs
That in air make for paired bams....

6 MONTHS/2 SAMs = 3 MONTHS PER SAM.  (Actually, lawyers for the defendant expect their client to be freed come December--perhaps he can wangle an invitation to attend the inauguration come Jan. 20?)

Let one major defendant win outright acquittal and all Hell will break loose.  Indeed, if this Washington Post story is true, all Hell WILL break loose: hundreds, perhaps thousands, of videotapes made by Gitmo authorities monitoring foreign country interrogators brought into Gitmo for their language & cultural skills.  Look for an outcry to force disclosure of evidence one federal judge has already ordered preserved.  Should the tapes leak out: (1) methods of interrogation will be irremediably compromised; (2) some videos of unfriendly questioning--even absent physical harm of threat of same--will look bad, be assailed by the usual suspects & serve as a recruiting tool for new jihadists; (3) no foreign country will cooperate with us on interrogation for a generation.

Put on your calendar, for just 5 months from now, a clarion call to release the defendant, who could have been detained longer if held as an unlawful combatant, without benefit of trial.  By conceding process was due, the administration invited the courts to impose more process limits than the administration wanted to accept.

There is worse here: THE FIRST SENTENCE GIVEN A TERROR DETAINEE WAS HANDED DOWN ON THE TENTH ANNIVERSARY OF THE AUGUST 7, 1998 BOMBINGS BY AL-QAEDA OF AMERICAN EMBASSIES IN KENYA & TANZANIA, WHICH KILLED HUNDREDS AND WOUNDED THOUSANDS.

Oh, the indispensable Andy McCarthy informs us that our great ally, Britain, is equally enamored of hyper-legalism: They have yet to extradite suspects wanted in connection with the 1998 bombings, to the United States.  Once again, lawfare trumps warfare.

Anthrax: Amiss Again?

The Wall Street Journal questions whether the scientist who committed suicide did so because he was guilty of the 2001 anthrax attacks, and feared capture & trial.  Noting that the FBI paid nearly $6 million to settle its botched pursuit of the first prime suspect, WSJ editors remain skeptical.  As well they should.  Full disclosure of the mess the FBI has made is needed to unravel the mystery of what the FBI did and why it did it.  Ex-bioweapons inspector Dr. Richard Spertzel defends the late Bruce Ivins against the FBI's intimation that Ivins was the anthrax culprit.  RS long ago wrote that Stephen Hatfill, the first public suspect, was innocent, and was proven right then; a Dec. 6, 20001 NY Times article recounts what Spertzel told a House panel about the rogue scientist theory of the 2001 anthrax attacks (an ex-Soviet bioweapons expert disagreed, but Spertzel, to date, appears to have been proven right).  Writes Spertzel today:

The FBI has not officially released information on why it focused on Ivins, and whether he was about to be charged or arrested. And when the FBI does release this information, we should all remember that the case needs to be firmly based on solid information that would conclusively prove that a lone scientist could make such a sophisticated product.

From what we know so far, Bruce Ivins, although potentially a brilliant scientist, was not that man. The multiple disciplines and technologies required to make the anthrax in this case do not exist at Army's Medical Research Institute of Infectious Diseases. Inhalation studies are conducted at the institute, but they are done using liquid preparations, not powdered products.

The FBI spent between 12 and 18 months trying "to reverse engineer" (make a replica of) the anthrax in the letters sent to Messrs. Daschle and Leahy without success, according to FBI news releases. So why should federal investigators or the news media or the American public believe that a lone scientist would be able to do so?

Case far from closed.  If the FBI resists disclosing its case, perhaps to protect sources & methods--a legitimate concern, to be fair--the Bureau should convene a special panel to review its case in camera, and the panel should include Dr. Spertzel.  Any panel so convened could issue a public report sanitized to protect sources & methods plus classified information.

Gitmo: Two Mirandas, Many Deaths

Debra Burlingame, whose brother "Chick" piloted American Airlines Flight 77, and perished when the hijacked plane slammed into the Pentagon, and who now heads a 9/11 families activist group, details how inmates at Guantanamo use our legal rules to bollix up the war effort.  She offers a appalling narrative of a detainee who, upon his release, killed 13 Iraqi soldiers & wounded 42.  The inmate has written a poem "To My captive Lawyer,  Miranda."  Miranda seems to have been a lass who was a Gitmo lawyer for tee detainee, but the reference was also apparently to Ernesto Miranda, whose name is on America's most famous confession case.

What makes the affair especially appalling is that some colleges are celebrating the detainees, as presumed innocent victims of American oppression.  The details are well worth reading the entire 5 pages to digest in full the unflattering things one must conclude as to the left-wing "lawfare" bar and its role in the war.

Stratfor: "Busting the Anthrax Myth"

Here is another excellent report from Stratfor, re-published with their permission, entitled Busting the Anthrax Myth.  Its analysis & conclusions I find persuasive, and good news.  However, I note that in 2001, when anthrax was discovered on Capitol Hill, shortly after 9;/11, we knew next to nothing about al-Qaeda's capabilities.  Severe concern thus was warranted, as well as stepped up efforts to gather intelligence from surveillance and interrogations.  Now we know it is not as easy, but still we must be vigilant, and err on the high side of taking security measures.

             July 30, 2008

                  

By Fred Burton and Scott Stewart

Dr. Jeffrey W. Runge, chief medical officer at the U.S. Department of Homeland Security, told a congressional subcommittee on July 22 that the risk of a large-scale biological attack on the nation is significant and that the U.S. government knows its terrorist enemies have sought to use biological agents as instruments of warfare. Runge also said that the United States believes that capability is within the terrorists’ reach.

Runge gave his testimony before a subcommittee on Emerging Threats, Cybersecurity, and Science and Technology that was holding a field hearing in Providence, R.I., to discuss the topic of “Emerging Biological Threats and Public Health Preparedness.”

During his testimony, Runge specifically pointed to al Qaeda as the most significant threat and testified that the United States had determined that the terrorist organization is seeking to develop and use a biological weapon to cause mass casualties in an attack. According to Runge, U.S. analysis indicates that anthrax is the most likely choice, and a successful single-city attack on an unprepared population could kill hundreds of thousands of citizens.

Later in his testimony, Runge remarked that many do not perceive the threat of bioterrorism to be as significant as that of a nuclear or conventional strike, even though such an attack could kill as many people as a nuclear detonation and have its own long-term environmental effects.

We must admit to being among those who do not perceive the threat of bioterrorism to be as significant as that posed by a nuclear strike. To be fair, it must be noted that we also do not see strikes using chemical or radiological weapons rising to the threshold of a true weapon of mass destruction either. The successful detonation of a nuclear weapon in an American city would be far more devastating that any of these other forms of attack.

In fact, based on the past history of nonstate actors conducting attacks using biological weapons, we remain skeptical that a nonstate actor could conduct a biological weapons strike capable of creating as many casualties as a large strike using conventional explosives — such as the October 2002 Bali bombings that resulted in 202 deaths or the March 2004 train bombings in Madrid that killed 191.

We do not disagree with Runge’s statements that actors such as al Qaeda have demonstrated an interest in biological weapons. There is ample evidence that al Qaeda has a rudimentary biological weapons capability. However, there is a huge chasm of capability that separates intent and a rudimentary biological weapons program from a biological weapons program that is capable of killing hundreds of thousands of people.

Misconceptions About Biological Weapons

There are many misconceptions involving biological weapons. The three most common are that they are easy to obtain, that they are easy to deploy effectively, and that, when used, they always cause massive casualties.

While it is certainly true that there are many different types of actors who can easily gain access to rudimentary biological agents, there are far fewer actors who can actually isolate virulent strains of the agents, weaponize them and then effectively employ these agents in a manner that will realistically pose a significant threat of causing mass casualties. While organisms such as anthrax are present in the environment and are not difficult to obtain, more highly virulent strains of these tend to be far more difficult to locate, isolate and replicate. Such efforts require highly skilled individuals and sophisticated laboratory equipment.

Even incredibly deadly biological substances such as ricin and botulinum toxin are difficult to use in mass attacks. This difficulty arises when one attempts to take a rudimentary biological substance and then convert it into a weaponized form — a form that is potent enough to be deadly and yet readily dispersed. Even if this weaponization hurdle can be overcome, once developed, the weaponized agent must then be integrated with a weapons system that can effectively take large quantities of the agent and evenly distribute it in lethal doses to the intended targets.

During the past several decades in the era of modern terrorism, biological weapons have been used very infrequently and with very little success. This fact alone serves to highlight the gap between the biological warfare misconceptions and reality. Militant groups desperately want to kill people and are constantly seeking new innovations that will allow them to kill larger numbers of people. Certainly if biological weapons were as easily obtained, as easily weaponized and as effective at producing mass casualties as commonly portrayed, militant groups would have used them far more frequently than they have.

Militant groups are generally adaptive and responsive to failure. If something works, they will use it. If it does not, they will seek more effective means of achieving their deadly goals. A good example of this was the rise and fall of the use of chlorine in militant attacks in Iraq.

Anthrax

As noted by Runge, the spore-forming bacterium Bacillus anthracis is readily available in nature and can be deadly if inhaled, if ingested or if it comes into contact with a person’s skin. What constitutes a deadly dose of inhalation anthrax has not been precisely quantified, but is estimated to be somewhere between 8,000 and 50,000 spores. One gram of weaponized anthrax, such as that contained in the letters mailed to U.S. Sens. Tom Daschle and Patrick Leahy in October 2001, can contain up to one trillion spores — enough to cause somewhere between 20 and 100 million deaths. The letters mailed to Daschle and Leahy reportedly contained about one gram each for a total estimated quantity of two grams of anthrax spores: enough to have theoretically killed between 40 and 200 million people. The U.S. Census Bureau estimates that the current population of the United States is 304.7 million. In a worst-case scenario, the letters mailed to Daschle and Leahy theoreticall y contained enough anthrax spores to kill nearly two-thirds of the U.S. population.

Yet, in spite of their incredibly deadly potential, those letters (along with an estimated five other anthrax letters mailed in a prior wave to media outlets such as the New York Post and the major television networks) killed only five people; another 22 victims were infected by the spores but recovered after receiving medical treatment. This difference between the theoretical number of fatal victims — hundreds of millions — and the actual number of victims — five — highlights the challenges in effectively distributing even a highly virulent and weaponized strain of an organism to a large number of potential victims.

To summarize: obtaining a biological agent is fairly simple. Isolating a virulent strain and then weaponizing that strain is somewhat more difficult. But the key to biological warfare — effectively distributing a weaponized agent to the intended target — is the really difficult part of the process. Anyone planning a biological attack against a large target such as a city needs to be concerned about a host of factors such as dilution, wind velocity and direction, particle size and weight, the susceptibility of the disease to ultraviolet light, heat, dryness or even rain. Small-scale localized attacks such as the 2001 anthrax letters or the 1984 salmonella attack undertaken by the Bhagwan Shri Rajneesh cult are far easier to commit. 

It is also important to remember that anthrax is not some sort of untreatable super disease. While anthrax does form hardy spores that can remain inert for a period of time, the disease is not easily transmitted from person to person, and therefore is unlikely to create an epidemic outside of the area targeted by the attack. Anthrax infections can be treated by the use of readily available antibiotics. The spores’ incubation period also permits time for early treatment if the attack is noticed.

The deadliest known anthrax incident in recent years occurred in 1979 when an accidental release of aerosolized spores from a Soviet biological weapons facility in Sverdlovsk affected some 94 people — reportedly killing 68 of them. This facility was one of dozens of laboratories that were part of the Soviet Union’s massive and well-funded biological weapons program, one that employed thousands of the country’s brightest scientists. In fact, it was the largest biological weapons program in history.

Perhaps the largest attempt by a nonstate actor to cause mass casualties using anthrax was the series of attacks conducted in 1993 by the Japanese cult group Aum Shinrikyo in Tokyo.

In the late 1980s, Aum’s team of trained scientists spent millions of dollars to develop a series of state-of-the-art biological weapons research and production laboratories. The group experimented with botulinum toxin, anthrax, cholera and Q fever and even tried to acquire the Ebola virus. The group hoped to produce enough biological agent to trigger a global Armageddon. Its first attempts at unleashing mega-death on the world involved the use of botulinum toxin. In April 1990, the group used a fleet of three trucks equipped with aerosol sprayers to release liquid botulinum toxin on targets that included the Imperial Palace, the National Diet of Japan, the U.S. Embassy in Tokyo, two U.S. naval bases and the airport in Narita. In spite of the massive quantities of toxin released, there were no mass casualties, and, in fact, nobody outside of the cult was even aware the attacks had taken place.

When the botulinum operations failed to produce results, Aum’s scientists went back to the drawing board and retooled their biological weapons facilities to produce anthrax. By mid-1993, they were ready to launch attacks involving anthrax; between June and August of 1993, the group sprayed thousands of gallons of aerosolized liquid anthrax in Tokyo. This time, Aum not only employed its fleet of sprayer trucks but also used aerosol sprayers mounted on the roof of their headquarters to disperse a cloud of aerosolized anthrax over the city. Again, the attacks produced no results and were not even noticed. It was only after the group’s successful 1995 subway attacks using sarin nerve agent that a Japanese government investigation discovered that the 1990 and 1993 biological attacks had occurred.

Biological Weapons Production

Aum Shinrikyo’s team of highly trained scientists worked under ideal conditions in a first-world country with a virtually unlimited budget. They were able to travel the world in search of deadly organisms and even received technical advice from former Soviet scientists. The team worked in large, modern laboratory facilities to produce substantial quantities of biological weapons. They were able to operate these facilities inside industrial parks and openly order the large quantities of laboratory equipment they required. Yet, in spite of the millions of dollars the group spent on its biological weapons program — and the lack of any meaningful interference from the Japanese government — Aum still experienced problems in creating virulent biological agents and also found it difficult to dispense those agents effectively.

Today, al Qaeda finds itself operating in a very different environment than that experienced by Aum Shinrikyo in 1993. At that time, nobody was looking for Aum or its biological and chemical weapons program. By contrast, since the Sept. 11 attacks, the United States and its allies have actively pursued al Qaeda leaders and sought to dismantle and defang the organization. The United States and its allies have focused a considerable amount of resources in tracking and disassembling al Qaeda’s chemical and biological warfare efforts. The al Qaeda network has had millions of dollars of its assets seized in a number of countries, and it no longer has the safe haven of Afghanistan from which to operate. The chemical and biological facilities the group established in the 1990s in Afghanistan — such as the Deronta training camp, where cyanide and other toxins were used to kill dogs, and a crude anthrax production facility in Kandahar — have been found and destroy ed by U.S. troops.

Operating in the badlands along the Pakistani-Afghan border, al Qaeda cannot easily build large modern factories capable of producing large quantities of agents or toxins. Such fixed facilities are expensive and consume a lot of resources. Even if al Qaeda had the spare capacity to invest in such facilities, the fixed nature of them means that they could be compromised and quickly destroyed by the United States.

If al Qaeda could somehow create and hide a fixed biological weapons facility in Pakistan’s Federally Administered Tribal Areas or North-West Frontier Province, it would still face the daunting task of transporting large quantities of biological agents from the Pakistani badlands to targets in the United States or Europe. Al Qaeda operatives certainly can create and transport small quantities of these compounds, but not enough to wreak the kind of massive damage it desires.

Al Qaeda’s lead chemical and biological weapons expert, Midhat Mursi al-Sayid Umar, also known as Abu Khabab al-Masri, was reportedly killed on July 28, 2008, by a U.S. missile strike on his home in Pakistan. Al-Sayid, who had a $5 million dollar bounty on his head, was initially reported to have been one of those killed in the January 2006 strike in Damadola. If he was indeed killed, his death should be another significant blow to the group’s biological warfare efforts.

Of course, we must recognize that the jihadist threat goes just beyond the al Qaeda core. As we have been writing for several years now, al Qaeda has undergone a metamorphosis from a smaller core group of professional operatives into an operational model that encourages independent grassroots jihadists to conduct attacks. The core al Qaeda group, through men like al-Sayid, has published manuals in hard copy and on the Internet that provide instructions on how to manufacture rudimentary biological weapons.

It is our belief that independent jihadist cells and lone-wolf jihadists will almost certainly attempt to brew up some of the recipes from the al Qaeda cookbook. There also exists a very real threat that a jihadist sympathizer could obtain a small quantity of deadly biological organisms by infiltrating a research facility.

This means that we likely will see some limited attempts at employing biological weapons. That does not mean, however, that such attacks will be large-scale or create mass casualties.

The Bottom Line

While there has been much consternation and alarm-raising over the potential for widespread proliferation of biological weapons and the possible use of such weapons on a massive scale, there are significant constraints on such designs. The current dearth of substantial biological weapons programs and arsenals by governments worldwide, and the even smaller number of cases in which systems were actually used, seems to belie — or at least bring into question — the intense concern about such programs.

While we would like to believe that countries such as the United States, the United Kingdom and Russia have halted their biological warfare programs for some noble ideological or humanitarian reason, we simply can’t. If biological weapons were in practice as effective as some would lead us to believe, these states would surely maintain stockpiles of them, just as they have maintained their nuclear weapons programs. Biological weapons programs were abandoned because they proved to be not as effective as advertised and because conventional munitions proved to provide more bang for the buck.

In some ways, the psychological fear of a “super weapon” — undetectable, microscopic, easily delivered and extremely deadly — shapes assessment of the threat, more so than an objective understanding of actual capability and intent (not to mention the extreme difficulties of ever creating some sort of a super bug). Conventional weapons systems, and unconventional tactics, continue to be the most cost-effective and proven methods of warfare, whether between state actors or between state and nonstate actors. Nuclear weapons have also been shown to have true weapons of mass destruction power.

To help keep the cost-benefit calculation of a biological warfare program in perspective, consider that Seung-Hui Cho, the man who committed the shooting at Virginia Tech, killed 32 people — more than six times as many as were killed by the 2001 anthrax letters. John Mohammed, the so-called “D.C. Sniper,” was able to cause a considerable amount of panic and kill twice as many people (10) by simply purchasing and using one assault rifle. Compare Mohammed’s effort and expenses to that of the Aum Shinrikyo anthrax program that took years of work by a huge team and millions of dollars to develop but infected no one.

Now, just because biological weapons are not all they are cracked up to be does not mean that efforts to undermine the biological warfare plans and efforts of militant groups such as al Qaeda should not continue or that programs to detect such agents or develop more effective treatments and vaccines should be halted. Even though an anthrax attack probably will not kill huge numbers of people, as we saw in the case of the anthrax letters, such an attack can be quite disruptive. Cleaning up after such an attack is expensive and takes considerable time and effort. Like a dirty bomb, an anthrax attack will more likely serve as a weapon of mass disruption and not a weapon of mass destruction.

Due to the disruption and the potential for some deaths as a result of an anthrax attack, the threat against the United States does remain a significant concern. However, the threat it represents is not as great as that of conventional attacks using firearms and explosives against soft targets, and it certainly does not rise anywhere near the level of a threat posed by a terrorist attack using a nuclear weapon.

Homeland security resources are very limited and have been shrinking as we move further from 9/11 and as other items begin to take precedence in the federal budget. This means that an array of different programs is being forced to scramble for an ever-shrinking piece of the funding pie. In such an environment, it is often a temptation to overstate the threat. Such overstatements are harmful because they can sometimes prevent a rational distribution of resources and prevent resources from being allocated to where they are needed most.

Gitmo Trial: Chauffeur Chutzpah

You have to admire the chutzpah of the lawyers representing Osama's chauffeur at the Guantanamo habeas proceeding.  The Washington Post reports that Salim Ahmed Hamdan's lawyers are asserting that for most of their client's service to Osama, al-Qaeda was not at war with America.  They assert, incredibly, that the war started on September 11, 2001 (guess who started it).  A law professor from South Texas College was asked if he had heard of bin Laden's 1998 fatwa declaring war against Uncle Sam, to which he replied, with no hint of understatement: "I'll concede that it is something to look at."

What about Osama's 1996 fatwa 1996?  The 1996 Khobar Towers bombing in Saudi Arabia?  The twin US embassy bombings in Africa in 1998?  Well, the US took a law enforcement stance then, so maybe the Gitmo tribunal will buy the defense's argument.  Stay tuned: the legal system is on trial here, as much as the defendant.  The charge: incipient insanity.

The Law Wars: Islamists Target the Prosecutor

An NY Sun article explains in disturbing detail how militant Islamist groups are using litigation to retaliate against what they assert have been over-zealous prosecution of Islamists, motivated by anti-Muslim bias.  It is an excellent read, and illustrates how radicals once again use our legal system to wage war on our capacity to defend ourselves.