Prisoner X, Lies, and Videotape

The world has been captivated this past week by the strange saga of Ben Zygier, Israel's so-called "Prisoner X" - an apparently high-value prisoner held at Israel's Ayalon prison under a false name until he allegedly hanged himself in December 2010.  I have been following the story with some perplexity; I was in Israel during the summer of 2010, when the existence of "Prisoner X" was inadvertently revealed via a passing reference in an online YNet article, but I honestly have no recollection of the media storm that the revelation created.  It has only been this weekend, when I've finally had time to sit and read up on it that I feel I've been able to grasp what's been going on . . .

The basic story is as follows: the existence of a mysterious, unnamed prisoner being held in the high-security Ayalon prison was originally revealed in a YNet article published in the summer of 2010.  Israel's domestic intelligence service apparently obtained a media gag order on the story, and the original article was pulled from the web within hours of being posted.  But the public's curiosity, both in Israel and around the world was aroused: who was this mysterious prisoner? Why was he being held incommunicado?  The details published in the YNet piece were certainly tantalizing . . . As summarized by Richard Spencer and Adrian Blomfield, writing for The Telegraph:

"Quoting unidentified officials within the Israeli penitentiary service, [the YNet article] disclosed that Mr. X was being held in Unit 15, a wing of Ayalon prison that contains a single cell.

He is not though to receive any visitors and his wing is cut off from the rest of the prison by double iron doors. So hermetic are the conditions in which he is held that other prisoners can neither see nor hear him.

"He is simply a person without a name and without an identity who has been placed in total and utter isolation from the outside world," a prison official was quoted as saying."

The story was quite a conundrum.  A modern-day "Man in the Iron Mask": identity-less, unseen, unheard . . . At the time, opinions were rife about Prisoner X's identity.  The "journalist" Richard Silverstein (he of the oft-vaunted, but frequently wrong, anonymous sources) insisted that Prisoner X was an Iranian general, abducted by the Mossad while on a trip to Turkey.  (As the narrator to the ABC investigative piece on Prisoner X somewhat snarkily put it, see below, Silverstein's theory "went nowhere.")  Others, apparently much closer to the mark, saw Prisoner X's case as somehow involving espionage.  Regardless of the theories, the media gag-order effectively ended Israeli reporting on the case, and so, as no one else was talking/reporting, the whole thing remained a mystery.

Ben Zygier

Source: Sydney Morning Herald

Until this past Tuesday, that is, when the Australian Broadcasting Corporation (ABC) published a story and ran an investigative report (see below) naming Ben Zygier, an Australian national who had immigrated to Israel in 1994, as Prisoner X.  The revelation threw many segments of the media, blogosphere, and Israeli public into an uproar, reignited interest in the two-year-old mystery, and created a host of new and curious questions.  Prisoner X now had a name, but the crime Ben Zygier allegedly committed remained - and remains - unexplained.

The espionage angle, however, appears to currently be the favored theory as to why Zygier was imprisoned in such solitary conditions.  Zygier, apparently, was involved with the Mossad, Israel's secretive national intelligence organization, and he may have been involved in efforts by the agency to obtain false passports - specifically, Australian passports - for its operatives.

In a story in the Weekly Standard, ex-Mossad operative Michael Ross describes the Mossad's need for travel and identity documents as the agency's "Achilles heel," explaining that, unlike the spooks of most Western intelligence services, Israeli operatives typically cannot travel to the locations where they most need to conduct intelligence gathering and espionage activity using Israeli documentation.  Aside from Egypt and Jordan, no Arab or Muslim country - particularly long-standing Israeli enemies like Iran, Lebanon, and Syria - will permit Israeli citizens with Israeli passports to enter.  Indeed, those traveling to the Middle East with plans of traveling to both Israel and to some of the surrounding Arab countries should typically have Israeli customs agents stamp a separate sheet of paper rather than a passport page; some of the Arab countries will, supposedly, turn you away at the border if you are found to have traveled to Israel beforehand.

Anyway, Mr. Ross speculates that Zygier was involved in Mossad attempts to obtain false Australian passport documents - a mission that was fraught with risk, since, in 2004, two Mossad agents were arrested in Australia for doing precisely the same thing.  Ross continues:

"I suspect that ASIO approached Zygier during this period and notified him that they had compelling evidence he was a Mossad operative. From here on in, it could be that by using whatever leverage at their disposal, ASIO “turned” Zygier and he essentially became caught between the two services. Perhaps in return for not making the story public, and as a means to protect his family, Zygier elected to spy for Australia reporting on his activities within the Mossad. It may also be conjectured that through some incident, his activities drew the suspicion of the Mossad and his role as a “double” was revealed. It would appear that whatever transpired was as much an embarrassment Australia as it was for Israel."

I'm no expert on espionage (or am I? *shifty eyes.* No, no I'm not), but, to me at least, Mr. Ross's theory sounds very plausible.

Still, many questions remain, and, with luck, the world will get some more answers soon: today, the Israeli Knesset Intelligence Subcommittee agreed to undertake an independent investigation into Ben Zygier's jailing and suicide.  Meanwhile, Israeli Prime Minister Binyamin Netanyahu defended Israel's treatment of Zygier, insisting that Israel is "an exemplary democracy and maintain[s] the rights of those under investigation," but that the country is also "more threatened and face[s] more challenges; [and], therefore, [] must maintain proper activity of [its] security agencies.”

I, for one, am quite curious as to where this case will go, and will try to keep my eyes and ears open for developments.  For now, though, let's go to that videotape promised in the title to this post: the original Australian Broadcasting Company investigative report, for anyone interested.

(Don't Fear) The MQ-9 Reaper: The Department of Justice White Paper and the Targeted Killing of American Citizens

Disclaimer: this blog post is not meant to be a sign of support for the overarching policy of targeted-killings-by-drone that the United States has pursued in the Middle East, the Asian Subcontinent, and Africa over the past nine years.  There are certainly significant consequences to the use of drones - including civilian casualties, missed targets, and the effects of drone use on foreign public opinion - that go well beyond any strictly legal analysis of drone-based targeted killing.  That said, these issues will not be addressed in this blog post, which strictly discusses the rationale of the DoJ whitepaper that was recently released.

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Unless you've been hiding under a rock (or just busy) for the past few days, you've no doubt heard about the Department of Justice memo on targeted killing that was leaked to NBC news on Monday.  And hoo boy what a stink it's caused, especially in the Right Wing Blogosphere and among a host of (*cough* hypocritical *cough*) conservative pundits.   I mean, did you know that the Obama Administration thinks it's honkey-dorey to ASSASSINATE AMERICAN CITIZENS without DUE PROCESS?!  For all the subtlety of their headlines and arguments, the whole lot of them may as well have pooled together and said, in the immortal words of Antoine Dodson: "Hide yo' kids, hide yo' wife, and hide yo' husband, cuz they dronin' e'erbody out here."

Conservative Punditocracy to the Average American: "Do
not ask for whom the Predator drone hums . . . it hums for thee."

Source: PolicyMic, "Predator Drone Strikes"

(As an aside, left wing pundits have been no less hypocritical in their *support* for the DoJ whitepaper.  MSNBC's typically far-left punditocracy - including "people's rights come from the government" Touré, Chris "Tingles" Matthews, and Rachel Maddow - weighed in in favor of the targeted killing policy, and the network's Krystal Ball went full hack and decided to just come out and say what everyone who listened to the original MSNBC slobberfest already knew: that these same pundits would *not* have supported the *exact same* policy had it been implemented by George W. Bush. So, yes, there's plenty of hackery and hypocrisy to go around . . .)

But, back to business.  The level of hysteria over the targeted killing memo has somewhat confused me, and not just because of its mystical ability to turn cable news into a "Through the Looking Glass" topsy-turvy laugh-fest (as if it wasn't already).  This is largely because, even from reading the first page of the memo, the DoJ's central caveat is obvious: the memo *does not* provide a legal justification for the targeted killing of Americans.  It provides a legal justification for the targeted killing of Americans . . . who are operational leaders of al-Qaeda, who are residing in a foreign country, and who, for whatever reason, cannot be captured.  Which, of course, is not necessarily a good thing or a good policy.  But there is a world of difference between "The DoJ Believes the Government Can Kill American Citizens Without Due Process!" and "The DoJ Believes the Government Can Kill al-Qaeda Leaders, Who Happen to be American Citizens, with Minimal Due Process."

Literally the end of the very first paragraph of the DoJ memo.
Note the phrase "only where the following three conditions are met."

I was relieved to find that I was not the only person who picked up the distinction, and, luckily, those who did are a lot smarter and more articulate than I am.  In fact, why are you even reading this blog when you could be reading:

• "Just Calm Down About That DoJ White Paper" (Lawfare, Benjamin Wittes and Susan Hennessey)
• "Americans: If You Don’t Want To Get Killed By A Drone, Avoid These 4 Things!" (Selected Wisdom, Clint Watts) <== This post is especially brilliant.

The point is that the DoJ memo doesn't give the Obama Administration a license to kill any thought-criminal or Republican that it happens to be annoyed with this week.  It's a limited legal opinion, applied in limited circumstances, to a relatively small group of individuals.  

In fact, with the deaths of Anwar al-Awlaki (who, as Clint Watts points out, was likely the very person whose targeting the DoJ white paper was written to justify) and Inspire magazine editor Samir Khan, I don't know if there are currently *any* American members of al-Qaeda who are sufficiently "senior" to fall within the white paper's definition of who could be legally targeted.  A case might be made for targeting Adam Gadahn, al-Qaeda Central's Oregon-born media advisor, spokesperson, and propagandist . . . but even this might be stretching the definition of "senior operational leader" a bit far.  While there are certainly other Americans who have joined al-Qaeda or its regional affiliates (Somalia's al-Shabaab seems to be a particularly popular choice for American terrorist wannabes, though some have found the experience to be a lot less fun than they were expecting), they are all comparatively small fry.  I would personally be curious to hear just who - if anyone - still falls within the ambit of this DoJ memo.

As for the memo's legal reasoning, well . . . it might be a little strained, but I don't think it's necessarily unreasonable.  The "Mathews v. Eldridge Balancing Test" referenced at several points throughout the memo is a somewhat arcane (to non-lawyers/law students) test that is very, very significant in the field of administrative law.  The test is used to determine what level of process is due to a person who is being deprived of liberty, property, or now, apparently, life resulting from the action of an administrative agency.  The test stipulates that three factors must be considered:

1. The private interest that would be effected by government actions
2. The risk of an erroneous deprivation and the likely benefit of additional procedural safeguards
3. The government's asserted interest

Typically, a less significant private interest, a low risk of erroneous deprivation, a low probability that additional procedural safeguards will lead to a greater degree of certainty with respect to an action, and a high government interest are all factors that cut in favor of a lower level of due process (for example, no constitutional requirement that a hearing take place prior to the deprivation of liberty/property).  The opposite, of course, cuts in favor of more significant procedural safeguards (e.g. pre-deprivation hearings that operate more like a traditional trial).

Now what, you might ask, does some administrative law mumbo jumbo have to do with the laws of war?  Good question, and the answer lies in the case of Hamdi v. Rumsfeld (2004), which, as you might have noticed, is also cited throughout the DoJ white paper.  In Hamdi, a case in which an American citizen held at Guantanamo Bay sued the Bush Administration challenging his detention and demanding access to the evidence against him, the Supreme Court pulled the Mathews Test completely out of its bag of tricks (NEITHER party had cited Mathews in its briefs to the Court!) to effect a compromise between Hamdi's position and that of the US government.  Based on Hamdi's important liberty interest in, you know, not being imprisoned in Gitmo for the rest of his life and due to the moderate risk of an erroneous deprivation (e.g. was Hamdi really al-Qaeda? He, like hundreds of others, was picked up by Afghanistan's Northern Alliance and turned over to the US later...), the Court ruled that American citizens like Hamdi who were challenging their enemy combatant status need to be provided with a greater amount of due process.  Specifically, they ought to 1) receive notice of the factual basis of their classifications as enemy combatants, and 2) receive a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker.  Recognizing that the Government, too, had important interests, however, the Court also ruled that at such hearings before a neutral decision-maker, there would be a rebuttable presumption in favor of the government’s evidence and hearsay evidence would be allowed.  It's not a perfect decision, by any means, but it incorporated (bizarrely) a key administrative law tool into a wartime scenario, laying the groundwork for a (somewhat) more clear-cut way of making procedural due process determinations with respect to armed conflicts.

By extending the reasoning in Hamdi and applying the Mathews balancing factors, the DoJ memo is drawing two central conclusions: 1) the US Government's interest in protecting its citizens and homeland from attack outweighs the interests that American citizen "senior operational leaders of al-Qaeda" have in continuing to live and plot, and 2) the risk of erroneous targeted killings (e.g. the targeting and killing of an American citizen who is not a "senior operational leader of al-Qaeda) is low and will not be made any lower by the creation of additional procedural safeguards.  It's a pretty big jump from Hamdi, but, again, it's not completely unreasonable.  And let me reiterate that, by its very language, the memo only applies this logic to "senior operational leaders" of al-Qaeda "in a foreign country."

This, however, is where the ACTUAL arguments against the DoJ white paper can really come into play, because, at least in my opinion, the idea that additional procedural safeguards - say, the creation of a special court that reviews the evidence against an al-Qaeda leader and issues the final decision on whether to drone or not to drone - are unnecessary comes off as at once naive and a little sinister.  I'm no fan of al-Qaeda, but, if we're going to keep the drone program, I'd at least like to see a greater degree of judicial oversight with respect to who deserves to have a Hellfire missile dropped on them.

While, as I hope that I and others have shown, the average American has little to worry about with respect to the DoJ's targeted killing memo, I think that, perhaps, the memo has led to an important conversation about drones and their use (discounting, of course, the paranoid ramblings or the slobbering sycophancy of the punditocracy).  Because with John Brennan up for Director of the CIA, the US drone policy is - without the limits that a public conversation on the issue may potentially create - likely to continue apace.  Or, to put it another way: John Brennan and the counter-terror establishment have a fever . . . and currently the only prescription is more cowbell.

Triomphe to the Sound of a Grunting Camel: François Hollande, Victorious

French President François Hollande arrived in Mali yesterday to survey the results of France's victory over radical Islamist groups who had seized control of Azawad (Northern Mali) and to meet with Malian leaders.  Where French military victors of old were saluted with trumpets and brass bands, Mr. Hollande, upon arriving in Timbuktu, was greeted by Malian singers and presented with the gift of one extremely cranky (or extremely constipated) camel:

I want to let it be known right now that if I am ever responsible for a military victory sufficiently important to warrant an honorific greeting ceremony and the presentation of gifts, it better be as awesome as this one.  If all I get is a crappy brass band, well . . . that event planner will be thanked with a one-way ticket to Guantanamo Bay.  But I digress . . .

Three weeks since France initiated Opération Serval to free northern Mali from Islamists aligned with al-Qaeda in the Islamic Maghreb (AQIM), French gains are certainly something to be celebrated.  Islamist fighters have been driven from most of Azawad's major cities, and the civilian population - which has suffered for nearly a year under the Islamists' puritanical, uncompromising version of shari'a law - are once again able to enjoy the basic freedoms and activities that were denied them by the Islamists:

"Music is a pleasure for us . . . We can now dance and do whatever we want: We can walk together with women, we can shout, we're the young people of Timbuktu, this is what we like doing."

"We can chit-chat with our brothers, our friends, and even our boyfriends . . . . It's a real pleasure, we're so happy. I want to thank God." (BBC News - "Mali conflict: Timbuktu celebrates end of Islamist rule")

Women are free to wear what they wish, no longer confined to the niqab.  Men can once again play sports in the streets.  No longer are brutal punishments such as amputations or whippings carried out in the town squares.

And so it is that Mr. Hollande arrived in Mali yesterday to a hero's welcome, the kind of jubilant gratitude that former President George W. Bush could only have dreamt about from the citizens of liberated Iraq or Afghanistan, or that even President Obama would be unlikely to receive from the fractious tribes of post-Gaddafi Libya.  (Indeed, it is my fervent belief that President Bush would have greatly preferred receiving a camel - even a constipated one - to the gift of shoes that he was so infamously given during a Baghdad press conference.)

But while President Hollande is currently riding high, the French victory - and Malian peace - is by no means assured.  As many have pointed out, comparatively few Islamist fighters have been killed in the French campaign.  Most have fled into the mountains and deserts, lurking in the redoubts and hiding places that the GSPC (e.g. Salafist Group for Preaching and Combat - the Algerian jihadist group that later evolved into AQIM) formerly called home.  And it is there they will likely stay - unless someone (*cough* the French *cough*) roots them out or until they see new opportunities to exert themselves.  The Islamist groups of the Sahel did a brisk business in smuggling, kidnapping for profit, and other criminal enterprises before they got into the whole "seizing-control-of-countries" game.  They are perfectly capable of maintaining their strength and keeping their coffers full without the bother that administrating a state (even through the relatively simplistic methods of brutality and fear) entails.

Thus, the measure of Opération Serval, like the US military campaigns in Afghanistan and Iraq before it, will come not from the initial victory - which, as Hollande's visit shows, has already largely been achieved - but from the standpoint of long-term stability.  Will the Islamists return if given the chance?  Will Mali descend into tit-for-tat recriminations, or, worse, full-blown ethnic conflict?  Will the French stay (Hollande told a crowd in the Malian capitol of Bamako that "We will be with you to the end," and also stated that the French would stay in Mali "as long as necessary") or quickly hand over military responsibility of the country to the not-exactly-stellar Malian security forces?

These are all questions that will be answered in time.  Until then, however, I hope that Mr. Hollande can occasionally take some time off from presidentin' to enjoy his camel.  Picturing him riding it up and down the Champs-Élysées (and imagining it growling at unsuspecting Parisians) brings nothing but joy to my heart.

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More stories/video about President Hollande's visit to Mali:

• NYT: "Timbuktu Gives France’s President an Ecstatic Welcome"
• NYT Slideshow: "French President Receives Warm Greetings in Mali"
• The Telegraph: "Timbuktu hails France's President Francois Hollande, its saviour in a suit"
• Washington Post/Associated Press: "Thousands cheer, welcome French president’s visit to Mali weeks after military operation began"
• The Guardian: "François Hollande visits Timbuktu as Mali intervention declared successful"
• BBC:  "French President Hollande pledges to help rebuild Mali"

Hollande Meets with Mali's Interim Leader in Sevare:

Al Jazeera: "Hollande Says Mali War is Not Over":

France's Hollande visits library housing torched manuscripts in Timbuktu: