Barack Obama. Photo: WDCpix

A year after President Obama’s speech in Cairo vowing to reset relations with the Muslim world, Muslims worldwide are telling pollsters about their disillusionment with what they consider unfulfilled expectations.

According to the Pew Center’s new survey of global attitudes (PDF), released Thursday morning, citizens of Muslim nations report disproportionate antipathy to Obama’s foreign policy. With the exception of Indonesia, where Obama spent a portion of his childhood, Muslims are the exceptions to the Pew poll’s findings that eighteen months of the Obama administration have seen a surge of international support for the United States after the public-opinion troughs of the Bush administration.

“The Pew results reflect growing dissatisfaction with Obama’s policies, as many Arabs and Muslims are disappointed that Obama has not lived up to his promises, especially on the Arab-Israeli conflict,” said Marc Lynch, a George Washington University professor and the co-author of a recent Center for a New American Security report measuring Obama’s global engagement efforts. “They don’t see his actions matching his words, and until they do then it isn’t likely that there will be a sustained recovery in America’s image.”

In Jordan, the U.S. approval rating has fallen to 21 percent. It’s at 17 percent, the lowest of any countries Pew surveyed, in Turkey, Egypt and Pakistan. And this comes after the Obama administration has presided over the largest non-military aid package to Pakistan — the $7.5 billion, five-year Kerry-Lugar-Berman bill — in history.

“Opposition to key elements of U.S. foreign policy remains pervasive,” Pew analyzes, “and many continue to perceive the U.S. as a potential military threat to their countries.”

The news is not universally negative. Nigerian Muslims give Obama a 70 percent approval rating, up from 61 percent in 2009. But they’re the outliers. In Egypt and Lebanon, Obama’s ascendance — and the departure of George W. Bush — elevated Muslim attitudes toward the U.S. somewhat: 25 percent of Egyptians reported favorable opinions of the U.S. in 2009, up from 20 percent a year earlier; Lebanese Muslims in 2008 had given the U.S. a 34 percent favorability rating, which rose to 47 percent in 2008. Now Egyptian Muslims have reverted to their pre-Obama 20 percent favorability rating. Lebanese Muslims have settled into a 39 percent favorability rating.

More ominous from the perspective of Obama’s Cairo speech, Muslims express a sentiment directly opposite the speech’s offer of partnership: They fear that the U.S. will attack them. Majorities, and sometimes large ones, of respondents in Egypt (56 percent), Lebanon (56 percent), Indonesia (76 percent), Pakistan (65 percent), Jordan (52 percent) and Turkey (56 percent) believe the U.S. is a potential military threat. That shouldn’t be surprising: Pakistan, despite being a Major Non-NATO Ally of the U.S., is currently battered in its tribal areas by CIA drone strikes, a step the U.S. has taken in response to what it considers insufficient Pakistani military action against al-Qaeda-aligned extremist groups. In Cairo, Obama pledged that the U.S. “is not, and never will be, at war with Islam,” but many Muslims worldwide believe that the U.S. still has them in its crosshairs.

Support for the Afghanistan war and U.S. counterterrorism efforts in Muslim countries is also anemic. Lebanon is the only Muslim country surveyed by Pew where even 20 percent believe that the U.S. should keep fighting in Afghanistan. (Neighboring Pakistan? Seven percent.) While support for U.S. counterterrorism efforts have grown in non-Muslim countries since Obama took office, it’s at 18 percent in Egypt, 12 percent in Jordan, and 47 percent among Nigerian Muslims.

Several counterterrorism experts believe the U.S.’s counterterrorism efforts will ultimately be hobbled if they run into a headwind of Muslim antipathy. Malcolm Nance, a retired veteran military intelligence officer who served in Iraq, Afghanistan and throughout the Middle East, argues in a new book that rather than attempt to change Muslim attitudes, a more productive strategy would involve moving the conversation to al-Qaeda’s apostasy. Nance code-names this approach CIRCUIT BREAKER, and writes in “An End to Al-Qaeda” that subjecting al-Qaeda to a “deep analytical dissection of their religious motives” can provide a path to “a new era for reconciliation and cooperation with the Muslim street.” It would also provide a platform for popular acquiescence to military or intelligence action against al-Qaeda — or at least limit blowback from it.

The administration appears to be attentive to the challenges, even if it hasn’t figured out a programmatic way to overcome them. Last month, the Pentagon quietly established a new office to ensure that military efforts don’t inadvertently undermine the administration’s broader promotion of the rule of law around the world.

Lynch, who also recently evaluated Obama’s counterterrorism efforts for CNAS partially through the prism of Muslim acquiescence, disputed that the Pew numbers demonstrate that Obama’s outreach to the Muslim world was in vain. “It’s more that he said he would do things, but thus far hasn’t delivered,” Lynch said, “so the words lose their meaning. It’s a real problem for the broader counterterrorism strategy, since winning over mainstream support is absolutely key to the strategy.”

After the provision won a major vote in the Senate Armed Services Committee earlier in the evening, the House voted Thursday night to include an amendment overturning the military’s 17-year-old ban on open gay service into the fiscal 2011 defense authorization bill. The vote was 234 in favor to 194 opposed, with only five Republicans voting in favor and 26 Democrats voting against.

“Lawmakers today stood on the right side of history,” said Human Rights Campaign President Joe Solmonese in a prepared statement emailed to reporters as soon as the bill cleared the 216-vote threshold necessary for passage. “This is a historic step to strengthen our armed forces and to restore honor and integrity to those who serve our country so selflessly.”

The move followed impassioned speeches in favor of repeal by Reps. Steny Hoyer (D-Md.), John Lewis (D-Ga.) and Nancy Pelosi (D-Calif.), all of whom argued that repeal was a crucial moral test for America.

This means that both the House and Senate now have a defense authorization bill that repeals “Don’t Ask, Don’t Tell.” The House may vote on the bill as early as tonight.

Late Thursday eveing, President Obama released this statement on the measure:

I have long advocated that we repeal ‘Don’t Ask Don’t Tell’, and I am pleased that both the House of Representatives and the Senate Armed Services Committee took important bipartisan steps toward repeal tonight. Key to successful repeal will be the ongoing Defense Department review, and as such I am grateful that the amendments offered by Representative Patrick Murphy and Senators Joseph Lieberman and Carl Levin that passed today will ensure that the Department of Defense can complete that comprehensive review that will allow our military and their families the opportunity to inform and shape the implementation process. Our military is made up of the best and bravest men and women in our nation, and my greatest honor is leading them as Commander-in-Chief. This legislation will help make our Armed Forces even stronger and more inclusive by allowing gay and lesbian soldiers to serve honestly and with integrity.

John Brennan, Assistant to the President for Counterterrorism and Homeland Security. Photo: EPA/ZUMApress.com

John Brennan has a tough rhetorical job ahead of him Wednesday morning. Speaking to the Center for Strategic and International Studies, Brennan, President Obama’s most influential terrorism and intelligence adviser, will attempt to reconcile the harder edges of Obama’s escalation in Afghanistan and his enthusiastic embrace of drone-enabled assassinations of terrorists with the broader approach to grand strategy that the White House will finally unveil this week. Some wonder if that reconciliation is even possible.

That grand strategy, previewed by Obama in his Saturday speech to West Point Army cadets, presents the world with a U.S. eager to uphold and sustain the rules of the international order, rejecting the Bush administration’s asserted right to take preventive military action against hostile foreign states. The U.S.’s leadership role within that global system, Obama contended, is to direct “the currents of cooperation… in the direction of liberty and justice,” for positive-sum international action on global concerns like economic security, climate change, nuclear disarmament, pandemic disease and weak or failing states. Those efforts and that approach will be the centerpiece of his forthcoming National Security Strategy, a defining document of U.S. grand strategy that the administration has labored for months to complete.

The National Security Strategy will be formally unveiled on Thursday. And Brennan won’t be the only senior official previewing it and amplifying its themes. Secretary of State Hillary Rodham Clinton, just back from a wide-ranging trip to China, will present it to the Brookings Institution. Vice President Biden will do the same on Friday, to the graduating class of Navy midshipmen at Annapolis. Jim Jones, Obama’s national security adviser, has said that the “defining feature of our foreign policy” is that the U.S. is “willing to commit to a new era of engagement based on mutual interests and mutual respect.” He’s finalizing the details of his own National Security Strategy-related speech.

Brennan tried this once before — at CSIS, in fact, last August. But back then, Brennan was more interested in articulating discontinuities with the Bush administration in how Obama handled terrorism, such as eschewing a war-centric construct for viewing the conflict and taking it away from Islam. One senior administration official, Dan Benjamin, the State Department’s counterterrorism chief, has urged an expansion of that critique, arguing last June that U.S. strategy needs to “shift away from a foreign and security policy that makes counterterrorism the prism through which everything is evaluated and decided.” The National Security Strategy is supposed to be that prism, but it remains to be seen how the administration’s counterterrorism efforts can be viewed through it.

Marc Lynch, a professor at George Washington University and a non-resident scholar at the Center for a New American Security, grapples with that reconciliation in a forthcoming paper for the influential think tank, and doesn’t come away with particularly easy answers. “The problem they face is they make a series of pragmatic decisions, each on its own terms, and you can see the logic behind any of them,” Lynch said. “But add it all up, and you see the implementation is clearly at odds with the philosophy.”

All of which are unilateral actions that have met with significant opposition overseas. None easily fit within the framework of “a new era of engagement based on mutual interests and mutual respect.” A senior Republican congressional aide agreed that that framework was the “essence” of Obama’s foreign policy. “There are norms and there are laws and ways of doing things in the world that we in the U.S. have in large part put into place, and sustain,” summarized the aide, who declined to speak for attribution. “Those laws, norms and ideas are above every nation and every nation has a responsibility to uphold them. So we need to do better at meeting our responsibilities and so too, incidentally, does the Iranian government.”

Obama’s approach to Afghanistan might not be such an anomaly, even if the recipient of the Nobel Peace Prize inherited the war he has escalated. That’s because even though Obama has nearly tripled the number of troops in Afghanistan, by July 2011 the so-called “extended surge” will begin to give way to more of a supporting role for U.S. forces. What’s more, as Afghan President Hamid Karzai’s visit to Washington two weeks ago highlighted, Obama has recast relations with both Afghanistan and Pakistan in terms of long-term diplomatic, economic and security cooperation, beyond just counterterrorism. What’s more, not only is military action in Afghanistan a multinational affair operated by NATO and not the U.S. alone, it is specifically legally authorized by the U.N. Security Council. Lynch, a former Obama campaign adviser and a critic of the Afghanistan war, observed, “Afghanistan is a big hole in the strategy in all kinds of ways of ways that matter, but not in a conceptual way.”

Heather Hurlburt, an administration ally at the progressive National Security Network, said that the problem is indicative of an inherent tension between a rules-based international order and the prerogatives of a superpower. “What any administration says is the strategy and what the national-security apparatus does on a day-to-day basis are not necessarily the same thing, especially early on,” Hurlburt observed. The role of a National Security Strategy isn’t necessarily to eliminate those tensions, but rather to bring the military and the intelligence services into rough alignment with the broader vision. “It’s a very powerful signaling mechanism across the government and outside of it, to say ‘We’re serious about this rules-based multilateralism, this human rights stuff, this non-proliferation stuff, and you can’t outlast it.’”

But if the administration keeps granting itself exceptions to following the international order for the exigencies of terrorist emergencies, Lynch said, it will be left without the intellectual underpinnings — and, accordingly, the public support — for an appropriate response if a terrorist attack ultimately succeeds. “What i’m afraid of is that as soon as you get turbulence — like an actual terrorist attack — there’s going to be a big backlash and you can’t hold the overall structure in place,” Lynch said. “Right now, Obama’s got the rhetoric, but they’ve done precious little to institutionalize it and put on durable legal foundations.”

Sen. Joe Lieberman plans to introduce an amendment Wednesday to repeal "Don't Ask, Don't Tell." Photo: Pete Marovich, ZUMA Press

Less than a month after the Pentagon leadership warned it would unwise to abandon the military’s ban on open gay service this year, a fast-moving legislative effort this week has opponents of “Don’t Ask, Don’t Tell” feeling like the law might finally be on the scrapheap.

Activists opposed to the law met Monday morning with White House officials ahead of a dual-tracked strategy in Congress to insert a formal repeal of the 17-year-old law in next year’s defense funding bill. On Wednesday, the Senate Armed Services Committee will mark up the 2011 Defense Authorization, and Sen. Joe Lieberman (I-Conn.) plans to introduce an amendment repealing “Don’t Ask, Don’t Tell.” He’ll be followed by Rep. Patrick Murphy (D-Pa.), an Iraq war veteran, who said Monday he would introduce a complementary amendment into the House’s version of the bill when it receives a full floor debate later this week. If passed, it would allow the Pentagon a few months’ worth of a grace period so an internal review due in December can guide how the implement overturning the ban.

By Monday evening, activists were announcing what the Human Rights Campaign’s president, Joe Solomonese, said in an official statement was the “brink of historic” action to get rid of “Don’t Ask, Don’t Tell.” While legislative language was not available by press time, several prominent activists cheered the White House for clearing the way for what Aubrey Sarvis, an Army veteran and one of the activists who took part in the White House meeting, called “a dramatic breakthrough in dismantling ‘Don’t Ask, Don’t Tell.’”

Peter Orszag, the White House budget director, wrote to Murphy late Monday to say the administration “supports the proposed amendment” on repeal, given that it recognizes the “critical need” for uniformed input to guide how repeal will work in practice. Orszag’s letter did not argue any need for repeal, and reiterated that the administration’s first choice would have delayed getting rid of “Don’t Ask, Don’t Tell” until at least 2011.

The contours of a potential deal paving the way for a legislative repeal this week were first floated by retired Army Gen. John Shalikashvili in the Washington Post on Saturday. Defense Secretary Robert Gates and Adm. Michael Mullen, the chairman of the Joint Chiefs of Staff who expressed his opposition to the law in February, dismayed activists by urging congressional leaders in April to delay any legislative remedies for “Don’t Ask, Don’t Tell” until a Pentagon working group surveying military attitudes about how to implement any repeal delivers its final report in December.

Shalikashvili, himself a former chairman of the Joint Chiefs of Staff at the dawn of “Don’t Ask, Don’t Tell,” proposed cutting the legislative and bureaucratic Gordian Knot. “Congress could repeal the federal statute and return authority to the military to set rules about gay troops, just as the armed services had before ‘don’t ask, don’t tell’ became law in 1993,” he wrote. “Indeed, acting now to remove the constraints imposed by that law is the most faithful response that Congress can offer to the working group’s efforts to engage service members and their families.”

That appeared to offer all sides a way out of the impasse. President Obama will get to keep the promise he made to the LGBT community in his State of the Union address for a 2010 repeal, and the Pentagon will ensure that the recommendations of the working group, led by Army Gen. Carter Ham and top Pentagon lawyer Jeh Johnson, form the basis of a post-”Don’t Ask, Don’t Tell” future. Michael Cole, a spokesman for the anti-”Don’t Ask, Don’t Tell” Human Rights Campaign, portrayed a legislative repeal this week as a necessary prerequisite to implementing the working group’s findings. “If the law is not repealed this year, when the implementation study comes down, [the Pentagon will] not able to carry it out,” Cole said.

In their April letter to Congress, Gates and Mullen warned that a legislative fix ahead of Johnson and Ham’s working group report would “send a very damaging message to our men and women in uniform that in essence their views, concerns and perspectives do not matter.” But chief Pentagon spokesman Geoff Morrell sounded more open to congressional action on Monday, however reluctantly. “Given that Congress insists on addressing this issue this week, we are trying to gain a better understanding of the legislative proposals they will be considering,” Morrell said in an e-mail.

Activists are seeking to ensure they don’t waste their congressional opportunity. The Human Rights Campaign is spending millions this week to pressure six senators on the Armed Services Committee who haven’t taken a firm position on repeal but the group believes are persuadable: Robert Byrd (D-W.V.), Jim Webb (D-Va.), Ben Nelson (D-Neb.), Bill Nelson (D-Fla.), Evan Bayh (D-Ind.) and Scott Brown (R-Mass.). Field staff in the states of all six senators are calling the legislators’ district offices, mailing thousands of postcards and scheduling rallies with anti-”Don’t Ask, Don’t Tell” servicemembers and veterans demanding an end to the law.

Cole said he anticipated close votes in both the Senate committee and the House floor. But he vowed Human Rights Campaign would “keep up the pressure and remind wavering members that 75 percent of the American people support repealing ‘Don’t Ask, Don’t Tell’ and this is an issue to strengthen our military and respect LGBT troops at the same time.”

Defense Secretary Robert Gates. Photo: Matthieu Rondel, Maxppp/ZUMA Press

In a major victory for opponents of the military’s ban on open homosexual service, Defense Secretary Robert Gates significantly revised how the Pentagon will implement the so-called “Don’t Ask, Don’t Tell” law, effectively making it difficult to remove a soldier, sailor, airman or marine who does not out himself or herself as gay.

Gates said the changes, endorsed by Joint Chiefs of Staff and vetted by the Pentagon’s top lawyer, would add “a greater measure of common sense and common decency” for service members negatively impacted by the law. The Servicemembers Legal Defense Network, an advocacy organization for gay and lesbian service members, considered Gates’ changes a “major step toward the end of the law,” according to spokesman Kevin Nix.

Starting today, only a general officer in an accused service member’s chain of command can discharge someone for a violation of the ban, and only an officer with the rank of commander or lieutenant colonel or higher can conduct a fact-finding inquiry to recommend a discharge. The standards of evidence provided to those inquiries will become far less burdensome on the accused, with what Gates called “special scrutiny on third parties who may be motivated to harm the service member.” Entire categories of evidence will no longer be admissible, including testimony from clergy members, physicians, abuse counselors, security-clearance review personnel and mental-health personnel — a move that also significantly improves troops’ quality of life.

“A good friend of mine just left the Navy as a Navy doctor,” said Christopher Anders, a lobbyist for the American Civil Liberties Union, which opposes “Don’t Ask, Don’t Tell.” Anders said that while his friend never turned in service members for violating the ban, the gay ban “was an obstacle to medical care,” as some personnel opted not to pursue certain medical care out of fear that treatment might be used against them in a “Don’t Ask, Don’t Tell” hearing.

Seated beside Adm. Mike Mullen, the Chairman of the Joint Chiefs of Staff who forcefully endorsed repealing the “Don’t Ask, Don’t Tell” law, Gates said at a press conference this morning that the new procedural changes apply to all ongoing investigations related to the ban on open gay military service. Gates clarified that he would not endorse any changes to the law until he sees the results of a review led by Pentagon general counsel Jeh Johnson and Army Gen. Carter Ham due by the end of the year. But Gates also clarified that the Johnson/Ham review “is about how you implement” a repeal of “Don’t Ask, Don’t Tell,” and “not about ’should we do it.’”

While recent polls show repealing “Don’t Ask, Don’t Tell” is broadly popular among both civilians and Iraq and Afghanistan military veterans, there has been some opposition to the looming repeal from senior levels of the military. The commandant of the Marine Corps, Gen. James Conway, favored keeping the gay ban in testimony last month. Army Lt. Gen. Benjamin Mixon wrote a letter to “Stars & Stripes” earlier this month urging advocates of the gay ban to “write your elected officials and chain of command and express your views.”

That letter earned Mixon a rebuke from both Gates and Mullen this morning. “That letter was not an appropriate letter,” Gates said. Mullen reminded Mixon that “as a three-star leader in command, he has great influence,” and “all of us in uniform are obliged to follow the leadership of the president,” who urged an end to the gay servicemember ban in his State of the Union address in January.

Sen. Joe Lieberman (I-Conn.) introduced a bill earlier this month to repeal the ban. A statement from Lieberman and his co-sponsors reacting to Gates’ changes in implementing the ban is expected later today.

While Anders hailed Gates’ changes, he noted that the defense secretary did not exercise all his authority to relieve some of the onerous provisions of the ban. Gates did not endorse a recent ruling of the Ninth Circuit Court of Appeals that said the military must prove servicemember discharges under “Don’t Ask, Don’t Tell” are vital to unit cohesion or combat readiness. Nor did Gates reverse a policy that cuts troops’ separation pay in half if the cause of their discharge from the military is a violation of the gay ban. Gates also clarified at his press conference that the changes are not retroactive, and so service members who were kicked out of the military for violating the ban will not be able to appeal their cases under the new rules.

Still, Anders said, Gates’ changes “are really important steps forward, obviously.”

Nix said that the Servicemembers Legal Defense Fund’s attorneys are reviewing the changes to determine what they mean for their clients, but that they dealt a serious blow to the ban.

“At the end of the day, what happened today is an important signal to Congress that repeal needs to happen this year,” Nix said. “What the secretary’s recommendations should tell Congress is this thing is on its way to an end, and Congress’s responsibility is to get rid of the law once and for all.”

Sen. Lindsey Graham (R-S.C.) Photo: WDCpix

WASHINGTON — Lindsey Graham is on the verge of winning an argument. Graham, the Republican senator from South Carolina, has pledged for weeks to deliver the votes from his fellow Republicans to finally close the detention facility at Guantanamo Bay, a campaign pledge from President Obama, if and only if Obama agrees try Khalid Shaikh Mohammed and the other 9/11 conspirators in a military commission. On Friday, the White House said it was “weeks away” from any decision about whether to scrap a civilian trial for the man known as KSM — which could give Graham what he wants.

There’s just one problem. Graham’s rationale for why KSM needs to be tried in a military commission and not a civilian court has to do with the procedures in the commissions for protecting classified information. But the revisions to the military commissions approved by Congress last year — with significant input from Graham himself — removed any significant difference between how classified information is handled in military and civilian venues. Accordingly, Chris Anders, a lobbyist for the American Civil Liberties Union, said Graham’s position was founded on “one big urban myth” — though whether that will affect Obama’s political calculation over the trial remains to be seen.

Asked to specify Graham’s objection to trying KSM in civilian court, Kevin Bishop, Graham’s chief spokesman, said that the senator is concerned about the potential for releasing classified information in open court. “Military justice and the military framework — a military commission — would allow us to better protect classified information,” Bishop said. Graham made a version of that argument on February 13 in the Republican radio address, referencing a 1995 terrorism trial and asserting, “valuable intelligence was compromised.”

But the military framework for handling classified information is almost exactly the civilian framework for handling it. The Military Commissions Act of 2009, which set procedure for the revised military commissions, explicitly instructs military judges to look to the civilian rules for protecting classified information, known as the Classified Information Procedures Act, or CIPA. Under the Act’s fifth subchapter governing the “construction of provisions” for the “protection of classified information,” the text says that “the judicial construction of the Classified Information Procedures Act (18 U.S.C. App.) shall be authoritative,” except in certain specific cases that Justice Department officials said are legally arcane.

“Any concern about the treatment of classified information in federal court is a solution in search of a problem,” said Joshua Dratel, one of a handful of defense attorneys to have taken on terrorism cases in the pre-9/11 civilian courts, in the post-9/11 civilian courts and in every version of the military commissions. “There simply has not been a problem in handling classified information in civilian federal court trials.”

The commission rules for handling classified material only outpace CIPA for marginal aspects of trial procedures, such as explicitly prohibiting the disclosure of verbal testimony and not just documents — even though judges for years have considered the distinction meaningless and have prohibited all such disclosures. Accordingly, Attorney General Eric Holder testified to the Senate Judiciary Committee in November that “the standards recently adopted by Congress to govern the use of classified information in military commissions are derived from the very CIPA rules that we use in federal court,” making the two venues a distinction without a difference from the perspective of protecting sensitive material. “We can protect classified material during trial,” Holder said.

Dean Boyd, the spokesman for the Justice Department’s National Security Division, underscored the point. “Over the years, experienced prosecutors have worked closely with the intelligence community to protect classified information in such cases, using CIPA procedures, and have successfully prosecuted many terrorists while complying with the applicable rules,” Boyd said. “The system provided by CIPA for cases prosecuted in federal court has generally worked well in protecting classified information, while also ensuring fair, credible, and effective trials.”

The CIPA system was good enough for Graham during last’s year’s debate over the commissions, when he helped craft the provisions of the Military Commissions Act of 2009 governing classified information. On July 23, 2009, Sen. Carl Levin (D-Mich.) introduced those provisions into fiscal 2010 defense authorization, the vehicle for passage of the commissions act. “Madam President,” Levin said, “the amendment I now offer, along with Senators Graham and McCain, would modify the procedures for the handling of classified evidence by military commissions… It has the support of the Justice Department and the Department of Defense.”

Graham has other reasons for supporting a military commission for Khalid Shaikh Mohammed — “Khalid Shaikh Mohammed, if he’s not an enemy combatant, who is?” Bishop said; the Obama administration has abandoned the “enemy combatant” designation for suspected terrorists — but Graham’s specific objection to the civilian trial centers on a claimed distinction between civilian and military procedures for handling classified information.

During the 30 years CIPA has governed classified disclosures in civilian courts, “the government is always in control of what gets released publicly,” said Dratel. All officers of the court, from defense counsel to a judge’s clerks, must hold security clearances to view classified information in secure facilities. “There is a court security officer, some of the most competent people if not the most competent people in the government, who operate to control these situations.” When judges permit defense counsel like Dratel — never their clients — to view classified information relevant to a case, “it doesn’t go to me; it sits in a secure room in a courthouse or other government building that no one has access to except people with a key and a combination.”

Any piece of classified information defense counsel wishes to enter into evidence must be approved by a judge. “If a judge agrees with me, then the government has a choice,” Dratel continued. “It has the choice of either declassifying the information or offering a substitution that would satisfy due process — in other words, my right to present my defense while at the same time protecting the classified information. And most classified information, in my experience, is about sources and methods.” These procedures now form the basis for how military commissions handle classified information as well.

To underscore Graham’s concerns, Bishop cited the 1995 case of Omar Abdul Rahman, the “blind sheikh” successfully prosecuted for involvement in the conspiracy to bomb the World Trade Center in 1993, in which the government’s list of Rahman’s unindicted co-conspirators reportedly leaked out of the courtroom and made its way to Osama bin Laden. “Our intelligence services later learned this list made its way back to bin Laden tipping him off about our surveillance,” Graham stated in his February radio address arguing against a civilian trial for KSM. “A conviction was obtained in that trial, but valuable intelligence was compromised. The rest is history.”

In 2008, however, a lengthy investigation into the criminal justice system’s handling of terrorism cases sponsored by Human Rights First determined that the list was never classified — and that prosecutors on the case never even sought to “invoke CIPA or other protections regarding the names on the list of unindicted co-conspirators.” The report, written by two veterans of the U.S. Attorney’s office for the Southern District of New York who did not work on the case, continues, “Had the government sought a court order restricting dissemination of the list, perhaps it would not have been disseminated to Bin Laden.” One of the authors of the report, Richard Zabel, is now the chief of the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York.

“If it had been classified and only available to [security-]cleared counsel, it never would have been circulated,” said Andrew Patel, one of the lawyers for Rahman’s co-conspirators. “This is the archetype of the government saying ‘we need additional tools’ when they failed to use the tools they had.”

Indeed, Holder addressed the Rahman disclosure in a November exchange with Sen. Orrin Hatch before the Senate Judiciary Committee. “The co-conspirator list was not a classified document. Had there been a reason to try to protect it, prosecutors could have sought a protective order, but that was not a classified document,” Holder said. “The provisions designed to protect sources and methods in the military commissions are based on the CIPA Act that we use in [federal] courts.”

The ACLU’s Anders wondered whether the novelty of military commissions — especially as the legal rules under the commissions have changed three times since the Bush administration created them after 9/11 — might make them more likely avenues for inadvertent disclosure of classified information in a KSM trial. “Who is going to do a better job with applying the substantively difficult law protecting classified information,” Anders said, “federal judges who have regularly applied it in many cases, or military commission judges who have never even tried a complex criminal case, much less the most important international terrorism case in history?”

Dratel agreed, citing a case he argued at Guantanamo Bay in which a judge blurted out that something stated in court “probably” ought to have been classified. ” Any preference for military commissions based on some purported danger of release of classified information in federal courts is like worrying about ships going too far toward the horizon because they’ll fall off the edge of the earth,” he said. “It is simply without any factual foundation, and ignores the 30-year history of federal courts handling classified information in the context of criminal prosecutions.”

Eric Cartman of South Park. Photo courtesy: Comedy Central

WASHINGTON — Employees of the CIA-connected private security corporation Blackwater diverted hundreds of weapons, including more than 500 AK-47 assault rifles, from a U.S. weapons bunker in Afghanistan intended to equip Afghan policemen, according to an investigation by the Senate Armed Services Committee. On at least one occasion, an individual claiming to work for the company evidently signed for a weapons shipment using the name of a “South Park” cartoon character. And Blackwater has yet to return hundreds of the guns to the military.

A Blackwater subsidiary known as Paravant that until recently operated in Afghanistan acquired the weapons for its employees’ “personal use,” according to committee staffers, as did other non-Paravant employees of Blackwater. Yet contractors in Afghanistan are not permitted to operate weapons without explicit permission from U.S. Central Command, something Blackwater never obtained. A November 2008 email from a Paravant vice president named Brian McCracken, obtained by the committee, nevertheless reads: “We have not received formal permission from the Army to carry weapons yet but I will take my chances.”

As a result of Blackwater’s disregard for U.S. military restrictions on contractor firearms, four employees of Paravant — which held a subcontract from defense giant Raytheon to train Afghan soldiers — under the influence of alcohol opened fire on a car carrying four Afghan civilians on May 5, 2009, wounding two. That incident, occurring less than two years after Blackwater guards killed 17 Iraqi civilians in Baghdad, prompted the committee’s investigation.

“In the fight against the Taliban, the perception that the Afghans have of us is critical,” Sen. Carl Levin (D-Mich.), the chairman of the committee, told reporters Tuesday afternoon. “It’s clear to me that if we’re going to win that struggle, we need to know that contractor personnel are adequately screened, they’re adequately supervised and they’re adequately held accountable.” Levin will hold a hearing on Blackwater’s Afghanistan contracts Wednesday morning.

The committee’s investigation points to the contrary. Blackwater personnel appear to have gone to exceptional lengths to obtain weapons from U.S. military weapons storehouses intended for use by the Afghan police. According to the committee, at the behest of the company’s Afghanistan country manager, Ricky Chambers, Blackwater on at least two occasions acquired hundreds of rifles and pistols from a U.S. military facility near Kabul called 22 Bunkers by the military and Pol-e Charki by the Afghans. Gen. David Petraeus, the commander of all U.S. military forces in the Middle East and South Asia, wrote to the committee to explain that “there is no current or past written policy, order, directive, or instruction that allows U.S. Military contractors or subcontractors in Afghanistan to use weapons stored at 22 Bunkers.”

On one of those occasions, in September 2008, Chief Warrant Officer Greg Sailer, who worked at 22 Bunkers and is a friend of a Blackwater officer working in Afghanistan, signed over more than 200 AK-47s to an individual identified as “Eric Cartman” or possibly “Carjman” from Blackwater’s Counter Narcotics Training Unit. A Blackwater lawyer told committee staff that no one by those names has ever been employed by the company. Eric Cartman is the name of an obnoxious character from Comedy Central’s popular “South Park” cartoon.

Blackwater personnel invoked their Fifth Amendment rights against self-incrimination when approached by the committee to explain the weapons acquisitions from 22 Bunkers, according to committee staff. Sailer, who is still deployed to Afghanistan, told the committee that he thought Blackwater was signing for the weapons to train Afghan police, a task it has never conducted.

Not all of the guns received from Blackwater have been returned to the Afghan government — and, according to committee staff, many only began to be returned after staff approached the company for an explanation. “It was represented to us that all the weapons had been returned” to 22 Bunkers, Levin said. “That is not true. Hundreds of them were not returned.” Asked if that meant Blackwater lied to Congress, Levin replied, “They misrepresented the facts, and I’d like to leave it at that.”

Raytheon did not renew Paravant’s contract for training the Afghan army, which expired in September. Blackwater still holds a contract with the State Department worth millions of dollars to protect diplomats in Afghanistan. While that contract expires this year, Politico reported on Tuesday that Blackwater, now renamed Xe Services, might acquire a new multimillion-dollar contract from the Defense Department to train Afghan police — the same police force that Blackwater’s weapons diversions from 22 Bunkers deprived of hundreds of pistols and rifles.

This is not the first time Blackwater has faced allegations of diverted weapons. In 2007, company employees came under federal investigation for improperly shipping hundreds of weapons to Iraq, some of which are believed to have been sold on the black market and acquired by a Kurdish terrorist group. A Blackwater statement at the time said allegations that the company was “in any way associated or complicit in unlawful arms activities are baseless.” The New York Times reported in November that the company is negotiating with regulators over “hundreds of millions of dollars in fines” associated with the illicit weapons shipments.

In January, Blackwater’s founder, Erik Prince, confirmed to Vanity Fair that his 12-year-old company — which has earned more than a billion dollars through government contracts in the past decade — was involved in a nascent terrorist assassination program run by the CIA, among other CIA activities. “I’m paying for all sorts of intelligence activities to support American national security, out of my own pocket,” Prince told the magazine. Additionally, The Nation recently reported that Blackwater assists the Joint Special Operations Command with the terrorist manhunt in Afghanistan and Pakistan, including with the operations of JSOC’s armed unmanned drones.

Levin said his inquiry had uncovered “inadequate oversight by the Army over this contract.” The Florida-based Army office supposedly overseeing the contract did not even have a contracting officer representative in Afghanistan when the Paravant employees shot at Afghan civilians on May 5, 2009. Yet as early as December 2008, concerned Raytheon personnel informed that Army office that Paravant personnel were carrying unapproved weapons. An officer in Afghanistan responsible for training Afghan soldiers told the committee, “We should have had better control.”

Additionally, Blackwater personnel in Afghanistan, including those involved in both the May shooting and an earlier improper weapons discharge from December 2008, have been cited for, among other infractions, drug and alcohol abuse and, in one case, an “extensive criminal history.”

Wednesday’s hearing is expected to receive testimony from current and former Blackwater/Paravant officers, including Brian C. McCracken, the former Paravant vice president who now serves as Raytheon’s chief Afghanistan program officer; Fred Roitz, a Blackwater vice president; and John Walker, a former Paravant program officer.

Stuart Bowen testifies before Congress on Iraq reconstruction in 2007. Photo: Mark Murrmann, ZUMA Press

Just as the U.S. government’s Iraq reconstruction watchdog formally unveils a proposal to revamp the integration of civilian and military activities in combat zones, opposition from the State Department and the Pentagon threatens to scotch the whole effort.

When he testifies Monday before the congressionally created Commission on Wartime Contracting, Stuart Bowen, the U.S. Special Inspector General for Iraq Reconstruction, will present his solution for the poor coordination, planning and policy implementation among U.S. diplomats, aid workers and military personnel he has documented in Iraq since 2004. Bowen proposes the creation of a new agency, known as the U.S. Office for Contingency Operations and jointly answerable to State and Defense, to be responsible for organizing and implementing civilian diplomatic, development and reconstruction efforts and interfacing with the military during stabilization and reconstruction operations. Bowen’s so-called USOCO proposal, the product of months of effort by him and his deputy Ginger Cruz, will be printed Monday and delivered to every member of Congress by Tuesday.

There’s only one problem. The two departments to which USOCO would report are both against the idea.

In formal responses appended to the USOCO paper, two senior administration officials praise Bowen’s effort and endorse his diagnosis that civilian and military efforts in stabilization and reconstruction missions suffer from an ad hoc planning and implementation structure, saying he “correctly identifies under-funding [and] lack of capacities” within State and the U.S. Agency for International Development as a key weakness. But both reject USOCO as a solution. Undersecretary of Defense for Policy Michele Flournoy writes that the problem is “one of capacity and not of structure” and observes that congressional support for a restructuring “in today’s fiscally constrained environment seems unlikely.”

Deputy Secretary of State Jack Lew, presenting State’s lengthy formal response to USOCO, pledges to Bowen that the USOCO proposal will receive “full consideration” from an ongoing State Department and USAID comprehensive review of development and diplomacy known as the QDDR. But he says Bowen’s fix is “problematic on several fronts,” and that USOCO would take too much policymaking responsibility away from the Secretary of State and the department’s regional bureaus.

While the State Department’s formal response to Bowen embraces some of his specific proposals to bolster civilian planning and budgeting authorities for stabilization operations, it suggests that the current Afghanistan campaign, which “far surpasses previous examples of civilian input into military planning,” already shows that State and Defense can cooperate successfully, even on an ad hoc basis. State denies the need for new institutional structures like USOCO for improving such coordination and chides the focus on stabilization and reconstruction operations as “an overly narrow view of the challenges that face U.S. foreign policy over the coming years.”

Bowen, in a recent interview, indicated that he will now pivot to selling USOCO on Capitol Hill. He said the fact that both Lew and Flournoy “specifically agreed with most of our targeted recommendations” in the paper provided an opportunity to convince Congress that existing bureaucratic structures are insufficient to deal with the problem. In addition to the Commission on Wartime Contracting hearing today, Bowen is scheduled to testify before the oversight subcommittee of the House Foreign Affairs Committee on Wednesday.

Image from "Applying Iraq’s Hard Lessons to the Reform of Stabilization and Reconstruction Operations (February 2010)" by Stuart Bowen.

“The core issue is this,” Bowen said. “There is no one entity responsible and accountable for stabilization and reconstruction operations. They are part of the missions of the departments of State and Defense, part of USAID’s mission, and the missions of the departments of Treasure, Agriculture and Justice, among others, but there is no central point of planning and management, and that bred the problems of poor coordination and weak integration we’ve encountered” in Iraq and Afghanistan.

It is unclear where the White House stands on the issue. Gayle Smith, the National Security Council senior director for global development and humanitarian affairs, is said to be skeptical of USOCO, but White House officials would not comment.

But USOCO still has a number of high-profile supporters. In the USOCO proposal, Bowen cites the endorsement of retired Lt. Gen. Brent Scowcroft, the national security adviser to President George H.W. Bush, and Spike Stevenson, the former top USAID official in Iraq. And in an interview last month, Ryan Crocker, the well-respected former ambassador to Iraq during the 2007 troop surge, also said that existing bureaucratic structures were insufficient to handle stabilization and reconstruction missions. “The current situation requires a perpetual reinventing of wheels and a huge amount of effort by those trying to manage contingencies,” Crocker said.

Bowen, who has earned bipartisan plaudits on Capitol Hill for years by identifying millions of dollars in wasted or poorly managed Iraq contracts, intends to test Flournoy’s proposition that Congress will have no appetite for the big bureaucratic overhaul USOCO represents. In addition to the hearings this week and the formal publication of the proposal, he is pushing USOCO to key members of Congress, including the leaderships of the House and Senate foreign affairs and armed services committees, as well as the Senate Government Reform and Homeland Security Committee.

“Resistance does not mean end of the argument, it just means we continue,” Bowen said. “This issue is still very much in flux.”

Secretary of Defense Robert Gates. Photo: WDpix

WASHINGTON — The Pentagon’s top civilian and military leadership made an unequivocal and at times emotional appeal Tuesday to end the decades-long ban on gays and lesbians serving openly in the military, and spelled out a year-long process for securing uniformed and congressional support to change the policy.

Defense Secretary Robert Gates expressed his “full support” for President Obama’s call in the State of the Union address to end the so-called “Don’t Ask, Don’t Tell” law this year. He announced to the Senate Armed Services Committee that he had asked Pentagon General Counsel Jeh Johnson and Army Gen. Carter Ham to lead a panel studying the implications of repeal across a variety of military concerns: unit cohesion and discipline — the main concern that led Congress to embrace “Don’t Ask, Don’t Tell” in 1993; partner benefits; base housing; “fraternization and base conduct;” and others. In addition, Gates said he planned to ask the Rand Corporation, a leading defense think tank, to update its influential 90s-era study of the impact of gay service on unit cohesion.

“It is clear to us we must proceed in a manner that allows for thorough examination of all issues” and “minimizes disruption” to a force stressed by two wars, Gates said. The panel will issue its recommendations before the end of 2010, and Gates told the senators he hoped its work would guide the Congress to pass a law overturning “Don’t Ask, Don’t Tell.”

But it was Adm. Michael Mullen, the chairman of the Joint Chiefs of Staff, who set the hearing’s tone. In 1993, when President Clinton attempted to overturn the ban, the uniformed military rejected the effort, particularly Mullen’s predecessor, Army Gen. Colin Powell. (Powell came out last year for “review[ing]” “Don’t Ask, Don’t Tell.”) In 2007, Mullen’s immediate predecessor, Marine Gen. Peter Pace, publicly called homosexuality “immoral” and likened it to adultery as a rationale for keeping the gay servicemember ban in place.

This time, however, Mullen — emphasizing that he spoke for himself and not the service chiefs — firmly and powerfully argued for repeal. “It is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do,” Mullen said. He called it an issue of “integrity,” and said his personal experience and introspection led him to reject a policy that he said forces servicemembers to “lie about who they are in order to defend their fellow citizens.”

Several Republicans on the panel, led by Sen. John McCain (R-Ariz.), the committee’s ranking Republican, blasted President Obama’s decision to end the gay ban and Gates’ decision to announce his support for it before the Johnson-Ham panel has issued its recommendations. Some suggested that Mullen was carrying Obama’s water instead of presenting his own advice. “If it was a trial, perhaps we’d raise the undue-command-influence defense,” said Sen. Jeff Sessions (R-Ala.).

That drew Mullen’s ire. “I have served with homosexuals since 1968,” the chairman said, raising his voice. “Everyone in the military has… A number of things, cumulatively, for me, get me to this position.” Sen. Carl Levin, the committee’s chairman and a “Don’t Ask, Don’t Tell” enemy, called Mullen’s comments a “profile in leadership.” After the hearing, Mullen tweeted, “Stand by what I said: Allowing homosexuals to serve openly is the right thing to do. Comes down to integrity.”

A Gallup poll from last May found that 69 percent of American adults favor allowing gays and lesbians to serve openly, and that acceptance of open homosexual military service has increased across all surveyed demographics over the past five years. Several close American allies — including those who have contributed to coalition military efforts in Iraq and Afghanistan — allow open gay military service, including Australia, Israel, the U.K., France, Denmark, Italy, Canada, the Czech Republic and Spain. When asked, Mullen said he was unaware of any problems related to such service that impeded coalition efforts in either war.

Gates signaled that he was disinclined to take unilateral steps to mitigate the enforcement of “Don’t Ask, Don’t Tell,” contrary to a piece in Tuesday’s Washington Post. “We obviously recognize that this is up to Congress,” Gates, adding that it was “critical this matter be settled by a vote of the Congress.” Still, the Servicemembers’ Legal Defense Fund, which advocates for the rights of gay servicemembers, said yesterday it had noticed a 30 percent drop in “Don’t Ask, Don’t Tell” enforcement cases during the first year of the Obama administration.

Congressional repeal is far from certain. Rep. Patrick Murphy (D-Pa.), one of the few Iraq veterans serving in Congress, has introduced a bill in the House that would repeal “Don’t Ask, Don’t Tell” and claims the support of more than 180 representatives. Yet Rep. Ike Skelton, the chairman of the House Armed Services Committee, is opposed to repeal. Rep. Joe Sestak (D-Penn.), a retired Navy admiral who is running for Senate in Pennsylvania, urged Obama not to wait for Congressional action and urged him to issue an executive order halting “Don’t Ask, Don’t Tell” enforcement. “In a time of war, we cannot lose any more troops that we depend on to keep our country safe,” Sestak said in a statement emailed to reporters.

Murphy is 36 years old and Skelton is nearly 80. The difference in their attitudes is reflective of what Paul Rieckoff, president of Iraq and Afghanistan Veterans of America, called a “generational shift within the military” during a 2007 interview with the Los Angeles Times. “The average 18-year-old has been around gay people, has seen gay people in popular culture, and they’re not this boogeyman in the same way they were to Pete Pace’s generation.” Rieckoff’s quote was cited in a recent anti-”Don’t Ask, Don’t Tell” article in the military’s influential Joint Forces Quarterly publication. Among the article’s conclusions: “[T]here is sufficient empirical evidence from foreign militaries to anticipate that incorporating homosexuals will introduce leadership challenges, but the challenges will not be insurmountable or affect unit cohesion and combat effectiveness.”

Mullen indicated his respect for all points of view on “Don’t Ask, Don’t Tell,” and took pains to emphasize that he was not speaking for the entire military. But he said he believed there was a “gap between that which we value, the military — specifically the value of integrity — and where our policy is.”