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Thursday, May 1, 2008

Notes on Pakistan
[Phillip Carter, Thursday April 3, 2008 at 7:56am ]
(Below is a guest contribution from "BG" — a highly respected intelligence officer who's recently served multiple tours overseas in interesting places — on the current state of affairs in Pakistan. I think he poses some very important questions.)What is better? Supporting an undemocratically elected leader to help us hunt down senior Al Qaeda leadership, or supporting the rightfully elected leaders who may hinder your wartime efforts? This is the political, diplomatic and military problem currently facing America in the very complex fight against Al Qaeda — particularly in Pakistan.On the surface, it sounds like a no-brainer. You support the democratically elected majority. After all, isn’t that the strategy, to defeat extremists and religious zealots with democracy and the power of the people? But wait, it gets more complex.
Members of Sharif's party wore black armbands as they were sworn in, to protest against Musharraf, whom they consider an unconstitutional president."We took the oath because there is a larger objective and that is the restoration of the judiciary," Senior Minister Nisar Ali Khan, who was given the communications and farm portfolios, said.Musharraf purged the judiciary in November when he resorted to emergency rule for six weeks to stop the Supreme Court ruling his re-election by the outgoing parliament was unconstitutional.Bhutto's widower, Asif Ali Zardari, who succeeded her as leader of the Pakistan People's Party, and Sharif have promised to reinstate deposed Supreme Court Chief Justice Iftikhar Chaudhry and his colleagues through a parliamentary resolution within 30 days of forming a government.That is likely to trigger a show-down with Musharraf, who will fear the judges will resurrect constitutional challenges to his re-election last October.A few thoughts:When fighting a war, law is what we could call a constraint or a limitation. Laws and rules are important, but it can also be detrimental to the mission. A leader must determine the risk and consequences of obeying the rules, bending them or breaking them. One of the greatest dilemmas in prosecuting a war against non-nation actors such as AQ are the international and local legal constraints. It is assumed that Musaharraf’s reason for purging the court was due to his own political problems, however, the military problem of detaining international terrorists in Pakistan did likely benefit from this move. If the Pakistanis or the U.S. are able to locate AQ senior leadership in Pakistan, the location is a well-established assessment, then what happens if we find one of them? The preferred method is having the host nation capture the individual and try them (since renditions are very unpopular and present other legal challenges). Several problems present themselves by relying on the host nation judiciary (in this case, Pakistan), including but not limited to: - Will the evidence collected against the terrorist hold up in a Pakistani trial? - How is the evidence classified, and was the method of collection legal within the Pakistani “Bill of Rights.” (Ed. note: Was it tainted by torture?)- Will the evidence hold up in court?- Did the terrorist break any local Pakistani laws? - Can the Pakistani courts try a terrorist for breaking international laws? - What are the legal requirements from the Pakistan judiciary to allow the U.S. to take custody of the terrorist, assuming that that is even legal? Local courts are corruptible and can fall victim to threats and intimidation, which may even lead up to violent retribution. These factors play a role in the capability of the host nation judiciary, and its ability to provide valid, legitimate outcomes which will bind the parties and be accepted by the people.With no judiciary in place, these questions have been moot points as of late. But what will happen now that a truer form of democracy is taking hold in Pakistan? Perhaps it is time for the U.S. administration to cut ties with Musharraf, whose position is becoming increasingly untenable everyday, perhaps even go against a long standing alliance by speaking out against Musharraf in an effort to cozy up with the new government. This would hopefully smooth the way to establish a treaty or agreement that would ensure that the military and political objectives of destroying AQ can be accomplished within the constraints of the law. Beyond that local problem, perhaps there should be an international push, led by the U.S., to establish an international judiciary body (God forbid, use the U.N. or ICC), that will establish and enforce these international laws. (Ed. note: perhaps also some sort of international agency capable of assisting with transitional justice in conflict zones.)Not being a lawyer myself, and knowing even less of international law, it is very possible that such international laws exist, but if they do, who is enforcing them? If the laws are out of date, who rewrites them to make them relevant? And how does law on the books translate into law in action?0 Trackbacks /

(link)Aviator47:
BG First off, are we wanting Pakistan to be a sovereign state or an instrument of the US? If they are sovereign, then they every right to rule as they see fit, and suffer the consequences, be they good or bad. Just as we are enjoying the fruits of seven years of Georgie the Loon by our own choice. It is much like raising children. Parents sow the moral and ethical seeds with their children, but one day, they become legal adults and are free to do as we see fit. Our parenting guidance may take root, and it may not. But, once they are legal adults, it is no longer our call. Quite a few children rebel against overly authoritative parents! It would be great to get the greater body of nations to take this on as a truly global or transnational matter. But under who's rules, and would the US subordinate to these rules? Let's be serious here, war crimes charges have already been filed in Europe against several key players in this administration. The first case was dismissed only on the technicality that they were subject to prosecution under US law. With GWB granting immunity, charges have been filed again. Will we extradite if an indictment is issued? We have to take each and every sovereign nation as it is, like it or not. If they choose to play ball with us, that's great, but as sovereign states, they are under no obligation to do so. We are in a very awkward position in Pakistan, and it will take minds much more sophisticated than the current gaggle to handle it well. It's time to re-evaluate how we do business. Al
4.3.2008 9:56am
(link)James M (mail):
"One of the greatest dilemmas in prosecuting a war against non-nation actors such as AQ are the international and local legal constraints." Ah, there is the rub. Is it a good idea to wage 'war' on non-nation actors or to use police action against them? In a police action you start from the fact that they are breaking a law, then use what means you need to capture the people, and bring them to justice. Our recent experience has shown that even with the worlds most power full army, navy and air force waging war against non-state actors has failed to either kill them off or bring them to justice. It seems to have just increased the number of their followers. I think that our first goal is to help nations have working governments with working legal systems and functional police forces. with and through them we can then target individuals who need to be brought to justice. If we want to win, we have to win through the rule of law. The ends do not justify the means if on the way you tare down the one thing you are trying to build, a society built on the laws of man, i.e. constitutions rather than the laws of gods i.e. what ever the cult leader says. People respect the rule of law when it is sane and when it is applied to all. When it holds every one in check, including the powerful. It's when the powerful declare they are above the rule of law, be it ignoring term limits or international treaties, that the signal goes out that all laws are off. We, as the power full, have to show that we respect laws even when they prevent us from doing what we want to do, for example reeking revenge. Laws are not laws when they are only applied to your advantage. People don't respect dictators or nations that re-write the fundamental laws of justice to suit their passions or to pander to their constituents. When you have lost respect you have lost authority. You cant beat people into respecting you, you can only beet people into fearing you. That's why 'WARS' are not good solutions to non-state actors. Surgical police actions are more affective, more legal, less costly and if you capture the people alive you get to bring them to justice. Seeing justice done, and seeing it applied to everyone equally is what inspires citizens to trust in the law and to live within the law. It's when things seem manifestly unjust that people take the law into their own hands. War is effective tool against nations, but does not cure religion, ideology, poverty, injustice or lack of respect for the laws of man. War is one of the least cost effective ways of getting people to change their ideas and opinions, or for supporting the courts and enforcing the rule of law.
4.3.2008 10:38am
(link)Corner Stone (mail):
I have no idea what it is we are discussing here. My brain is completely wrapped around the axle trying to understand the thesis.
Local courts are corruptible and can fall victim to threats and intimidation, which may even lead up to violent retribution. These factors play a role in the capability of the host nation judiciary, and its ability to provide valid, legitimate outcomes which will bind the parties and be accepted by the people. Seriously? This is a problem for the host nation judiciary? Have you not been paying attention?
4.3.2008 10:49am
(link)Andrew (mail) (www):
I don't have time for a lengthy response at the moment, but here are a couple points to keep in mind: 1. Afghanistan and Pakistan are dysfunctional conjoined twins. Any policy needs to keep that fact in mind - that actions in one have tremendous effects on the other. This is only exacerbated when we have to operate in the confines of an unnatural border between the two - a border we must respect but one most of the locals ignore. 2. James, you assert "surgical" police actions are more effective, legal, etc. I'd like to see some evidence to support that and an explanation of how one conducts such police actions in lawless areas. The law enforcement approach was tried in the 1990's and it didn't work out very well. In reality, I think the solution is much more complex than the simplistic notion that the choice is between law enforcement and "war." The choice of what to do will often be situational. In those cases where "police" and the "rule of law" can be utilized, that's great, but most of the places where these groups operate don't have much in the way of "rule of law." 3. The main reason, in my view, for our tolerance of Musharraf is that our entire operation is currently dependent upon our supply train which passes through Pakistan. A collapsing Pakistani government or one more hostile to the US could mean an end to the mission in Afghanistan. This concern is, IMO, the primary reason we're trying to open up another supply route through Russia &Uzbekistan. 4. Al brings up sovereignty and that's a good thing to discuss. We are currently openly violating Pakistani sovereignty through overt attacks on militants over the border in Pakistan. I don't know why there is this sudden change in tactic, but it could be to kill as many militants before the new government shuts us down, or it could be the realization (finally) that Pakistani sovereignty over the tribal areas is in name only. The question of what to do when such groups are based in such areas is a difficult one to answer - one that may not have a good answer.
4.3.2008 11:17am
(link)sheerahkahn:
What Al said... are we an empire? If so, then them Paki's better toe the line, or are we a defender of democratically elected governments? In which case, we takes our chances with the Paki's government. If we win, great, if not we're just going to have to live with their decision.
4.3.2008 1:50pm
(link)Richard (mail) (www):
Hmm. Is anyone seriously arguing that sustaining dictators who violate their own constitutions (and, in other cases, human rights) is a good way to proceed? I mean, we might catch one or two bad guys by keeping this guy in charge, but let's be honest: most of the "bad guys" aren't doing anything bad to our homelands right now anyway, and if the intention is to stop all bad things happening to us forever in the future, we're going to have to get a hell of lot uglier (and hated) than simply propping up a few military dictators. Sooner or later we're going to learn that the unintended consequences of being Team America: World Police mean that doing nothing is within the margin of error in terms of the final outcome. Just think how many lives (excluding all the dead soldiers and civilians in the GWOT) could have been saved and improved if all that money and effort had gone into social programmes or foreign aid or better road signage...
4.3.2008 2:39pm
(link)bg (mail):
Corner Stone, et al, Sorry for my lack of brevity, for that is a skill I still need to develop. This paragraph from above illustrates my thesis: "Perhaps it is time for the U.S. administration to cut ties with Musharraf, whose position is becoming increasingly untenable everyday, perhaps even go against a long standing alliance by speaking out against Musharraf in an effort to cozy up with the new government. This would hopefully smooth the way to establish a treaty or agreement that would ensure that the military and political objectives of destroying AQ can be accomplished within the constraints of the law. " The rest of the stuff above it was an attempt to discuss the difficulties we will have to overcome with the new government, and my suggestion is that we be proactive in overcoming these issues by embracing the new government now, perhaps even by going as far as catching sail of Paki political winds and drop Musharaff. Andrew, the "dysfunctional conjoined twins" analogy is the best description of the area I've heard to date, thanks, I will use that one. It reminds me of a Kurt Vonnegut story. Andrew and James do bring up an interesting point I missed. How can you expect, should we expect, law to rule in a lawless land. The term "Federally Administered Tribal Areas (FATA)" is a gross overstatement because there is zero federal control. It is truly a no man's land. It is in Pakistan only by name, only by lines drawn on the map. Pakistan has no more political, legal or military power there than anyone else.
4.3.2008 4:38pm
(link)bigTom:
Not only do we need to start taking the desires of the rest of the worlds peoples, and governments seriously -and not just as some adjunct for carrying out our fantasies, but we got to get some perspective of the supposed threat. Bohdan Pilacinski has a good take on AQ over on atimes: http://www.atimes.com/atimes/Middle_East/JC28Ak06.html Basically we have allowed our paranoid nature -and partisan political computation blow up a fairly minor threat (which got lucky) into an existentialist challenge to ourselves. This delusional attitude is leading to all sorts of very negative results -of which the Iraq misadventure is merely the most egregious example. In fact a very strong case can be made that Sept 11th was blowback for our past indiscretions in that part of the world. We have got to start trying to see the world (and our place in it), as others do. Why does this seem to be such an impossible task to imagine?
4.3.2008 7:06pm
(link)sheerahkahn:
"Sorry for my lack of brevity, for that is a skill I still need to develop. This paragraph from above illustrates my thesis: " Bah, no need to apologize, that's what the comments section is for...to clarify your thoughts further and to invite discussion. Probably one of the most misunderstood ideas about the Blogs, and communications in general is that people feel if it's in black&white now, it's a permanent thought that is immune to change. I've been around a very long time...people change as much as their opinions do. I think you're doing okay...and remember, we're exchange of thoughts and ideas...kinda like if we were sitting in a pub ordering pitchers, and talking all night long. Sure we have our cherished opinions, but ya know...after awhile, and exposure to others...those cherished opinions sometimes change. And one other thing, always continue to research, write, rereading, and rewriting...you only get better at the craft. Who knows, you may even publish a book without having to pay a ghost writer. ;)
4.4.2008 11:51am
(link)FDChief (mail):
Pakistan has no more political, legal or military power there than anyone else. True, but as Guru Don would have said: the absence of law is not the law of absence - the fact that Pakistan cannot control (what frankly should be part of Afghanistan, or a Waziri tribal state or whatever - this goatscrew is just another example of the fucking Brits drawing lines on other people's maps) the FATA does not make it incumbent on us to control it. We would scream like a wounded eagle if Mexico bombed downtown Detroit after finding evidence that a gang of Mexican rebels plotted an attack on Mexico from there, even though we freely admit in our more honest moments that we have no control over much of the area. Why should the Pakis be any different?
4.4.2008 6:04pm
(link)Bruce Wilder (mail):
I found this post sad and discouraging. I was tempted to write a comment that focused on the introductory sentences: "What is better? Supporting an undemocratically elected leader to help us hunt down senior Al Qaeda leadership, or supporting the rightfully elected leaders who may hinder your wartime efforts? This is the political, diplomatic and military problem . . ." My first reaction was anger about this naive and misleading formulation. As I read the rest of the post, I realized that the writer was struggling against inexperience in writing, and was not trying to mislead. On longer consideration, the most troubling passage to me, seems to be the rather ungrammatical: "Laws and rules are important, but it can also be detrimental to the mission." Laws and rules, to my way of thinking, ought to be mission. That laws and rules are not the mission is the primary grand strategic problem for the U.S. at the moment. The mission, as formulated by Bush and his Administration, has been a policy of expedient use of military force, where expedience itself was a primary feature, apparently an aim in itself. It is the argument for expedience, as end and means, that has guest BG stumbling all over himself, and over his own attempts to express an argument. We have six and half years of experience to show that expedience is not necessarily effective, as either aim-in-itself or as a way to achieve other objectives. Rules and procedures don't arise out of a perverse desire to frustrate or prolong. They arise from a considered appreciation for all that must be done, and controlled, to arrive reliably at a desirable state of the world.
4.4.2008 6:45pm
(link)Soliton (mail):
bigTom,
In fact a very strong case can be made that Sept 11th was blowback for our past indiscretions in that part of the world. We have got to start trying to see the world (and our place in it), as others do. Why does this seem to be such an impossible task to imagine? That's an easy one, we believe our own propaganda. And boy, are we surrounded by some toxic propaganda.
4.4.2008 8:38pm
(link)Charles Gittings (mail) (www):
Excellent comments Bruce. What exactly is expedient about the dismal incompetence and failures of the Bush administration in Afghanistan or Iraq? Not a damn thing. They're not only chasing butterflies, they're falling flat on their faces while the real problems just get worse.
4.5.2008 10:48am
(link)Pluto:
Soliton
That's an easy one, we believe our own propaganda. And boy, are we surrounded by some toxic propaganda. Good one! It should be tattooed on GWB's forehead, not so he can read it but as a constant reminder to anybody who has to deal with him.
4.5.2008 2:56pm
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