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Did DOD+NYT+Reuters+AP Fabricate Panjwai Victims, Or Were 21 Killed?

For details of the U.S. Army’s investigation of this mass murder, and the commanding general’s AR 15-6 review, see the Timelines linked in the December 31, 2015 note atop Public Panjwai Massacre Facts

A small photograph of freelance Afghan reporter Mamoon Durrani

Mamoon Durrani

This post draws conclusions from my April 10 Panjwai post and comment thread, and was made possible by the generosity and courageous Panjwai reporting and photography of an independent Afghan journalist named Mamoon Durrani (who files from Afghanistan for Agence France-Presse, the BBC, and others). Durrani was able to cross the language barrier between us, despite his limited English, to share some of what he learned about the Panjwai Massacre on March 11 and 12, 2012, and since, with the English-speaking world.

November 16, 2012 Note

The additions/revisions/confirmations in green text below (primarily in the casualty box) are a result of information revealed, directly or indirectly, by the reports (and Tweets) of journalists who attended the Army’s November 5-13, 2012, UCMJ Article 32 hearing for SSG Robert Bales at Joint Base Lewis-McChord in Washington state (see the foot of my April post’s Comment 17 for more). There was remote Article 32 hearing testimony (electronically transmitted from Kandahar city) by a selection of Panjwai survivors (primarily those shot at the Haji Mohammad Naim home in Alkozai), but no direct testimony from adult Afghan women, and only relayed, and apparently contested, testimony (to the Army in June) from one of two eyewitness widows. (The other widow – Nazar Mohammad’s wife Maryam – has never been interviewed by the non-Afghan media, despite the multiple traumas she experienced that night. The only witness who’s been heard from about the Alkozai deaths of Maryam’s husband and 2-year-old daughter Khatima/Toraki – in one media interview, and in the Article 32 hearing at the request of the defense – is Nazar Mohammad’s 7-year-old daughter Noorbinak/Robina.) Article 32 hearing media reports revealed for the first time, among other things, the names of the nine adult victims (eight killed, one wounded) on the redacted June 1 Bales Charge Sheet (as listed in two Associated Press tweets1, 2; see screen captures below); the names of all six wounded on the redacted June 1 Bales Charge Sheet (summarized in the new paragraph above the casualty box below); and, per her father, via Mamoon Durrani on November 7, the identity of the (original mystery) DOD-identified wounded Panjwai victim referenced in the post’s title. Given its post-July updates, as first indicated in Comment 8 below, this post could now – with one DOD-generated mystery solved as a result of the Article 32 hearing, but another mystery (or 2 or 3) raised – more accurately be titled:

Did DOD+NYT+Reuters+Bloomberg+AFP+AP Fabricate Panjwai Victims, Or Were 29+ Killed?


December 11, 2012 Note

I discovered today, thanks to the mapping skills and generous patience of Mamoon Durrani, that both of the maps I’ve had in this post since July (now the last two below) – including the one with the black circle, sourced to Afghan officials investigating the massacre – inaccurately locate Camp Belamby/Belambay and thus the site of the Panjwai Massacre by more than five miles. (As does the BBC map included in my April post.) Apparently misled by the existence of a second “Alkozi” village in the Panjwai district (perhaps the only one large enough to be labeled), both maps I originally included in this post placed Combat Outpost Belamby, Alkozai, Najiban/Balandi, and the Dawood home 6-10 miles east of their actual Horn of Panjwai locations near the village(s) of Zangabad, northwest of Sharakhan – closer to the Dowry River and the Registan Desert, and further away from Kandahar city. See below for the three new maps I added to the post today, just above the older maps, for the corrected massacre location, new context, and for links to aerial photo close-ups of the individual sites that Mamoon very helpfully pinpointed with the help of locals after his hazardous visit(s) to that war zone on a civilian battlefield.


On January 17, 2013, reporter Gene Johnson of the Associated Press published for the first time all the names of Panjwai victims on the Army’s redacted 6/1 Charge Sheet:


Murdered (at three homes in Alkozai’s Ibrahim Khan Houses neighborhood):

Na’ikmarga, Khudai Dad, Nazir Mohammad, Tora/Gulalai

Murdered (at the Mohammad Dawood home one-half kilometer northeast of Najiban):

Mohammad Dawud

Murdered (at the Mohammad Wazir home in Najiban):

Shah Tarina, Zahrah, Naazyah, Akhtar Mohammad, Masuma, Farida, Palwasha, Nabia, Ismattullah, Faizullah, Issa Mohammad

Wounded (at two homes in Alkozai’s Ibrahim Khan Houses neighborhood):

Haji Mohammad Naim, Zardana, Rafiullah, Parmina, Sadiquallah, Robina


One Year Later – March 11, 2013 – Three Survivors Speak

Today, a year after the massacre, Afghan-born multimedia journalist Lela Ahmadzai, and the 2470media company of Germany, released a moving web documentary film, and three very valuable separate video interviews, featuring Panjwai Massacre survivors:

Silent Night: The Kandahar Massacre

The survivors include eyewitness Rafiullah (15) from Ibrahim Khan Houses of Alkozai, eyewitness Hekmatullah Gul (10) from south of COP Belamby, and Haji Mohammad Wazir from Najiban/Balandi. The Pashto-language video footage, with English and German subtitles, allows these survivors to speak for themselves, so the world can finally hear at length, in their own words, what some of the victims experienced that day and how it has affected their lives since. All three interviews were filmed on October 4, 2012 in Kabul. The two eyewitness accounts reveal new information, and confirm existing reports, about the participation of more than one soldier in the attacks that night.


June 5, 2013

The Massacre in Zangabad, Panjwai: Afghan Testimony, As Reported

(November, 2012 Article 32 hearing; includes a timeline, and two new maps: 1, 2)


January 19, 2014

Public Panjwai Massacre Facts

(Introduces new Storify reports of the Army’s August, 2013 sentencing hearing)


Perhaps if the international media, and particularly the U.S. media, would turn its lofty, self-righteous talk, about the rights of females in Afghanistan, into its walk – by, for example, seeking to obtain and report the eyewitness accounts of the many women (not to mention the many young girls) who survived the Panjwai Massacre – we might have a better idea by now of the answer to the question posed in the post’s title (among many other still-unanswered questions about the Panjwai Massacre).

Instead, the U.S. media basically delegated the actual gathering of facts in the dangerous environs of Camp Belamby, aka Combat Outpost (COP) Belamby (aerial photo added 12/11/12), to the intrepid Afghan reporters and photographers who were first (and mostly only) on the scene, and then busied itself with its official-source-quoting method of “journalism” (frequently accompanied by accountability-free anonymity) – the results of which practically drown out the actual, essential fact reporting about what happened in the Panjwai Massacre, even in the earliest March 11th coverage.

Thus, today, almost four months after the attack, of at least five adult females (and likely at least three more women in Alkozai) who are now known to have witnessed the Panjwai attack(s) on March 11, only oneMassouma, who watched her husband Mohammad Dawood be shot in the head and killed – has been (briefly) interviewed (twice) by English-language media for publication (almost certainly in large part due to dogged efforts by her brother-in-law Baran Akhon to get her story told): once over the telephone by Bette Dam for a March 23rd internet press report [page “no longer available” 10/8; replacement link], and once on-camera, under an assumed name, by Yalda Hakim for a March 27th Australian television broadcast.

Likewise, to the best of my knowledge, to date Yalda Hakim has conducted, for the same March 27 television broadcast, the only interview of a girl who witnessed the Panjwai attack(s): 8-year-old Noorbinak of Alkozai (it appears or close by specifically, from Alkozai’s Ibrahim Khan Houses neighborhood), who watched her father Nazar Mohammad, and 2-year-old sister Khatima (aka Toraki), shot and killed in front of her, before she herself was shot in the leg. (I learned the identity of Noorbinak’s father, and her village, only this week from Mamoon Durrani’s information. Further confirmation of Noorbinak’s parentage seems advisable.) We didn’t learn until mid-May, when Jon Stephenson of McClatchy wrote an important, chilling, and detailed account [link broken in their 9/24 website move; alternative link] of the four murders in Alkozai, that Noorbinak (who, notably, isn’t mentioned in the Stephenson account) apparently has two other, younger sisters (or half-sisters) who survived the night’s terror in Alkozai: 6-year-old Rubbinah (who was wounded), and 5-year-old Naseema, who both fled for their lives through the darkness, Naseema first to one home, then another, and finally away from the 3-4 adjacent homes that were targeted in Alkozai, to another location in the village. [Those 3-4 adjacent Alkozai homes are, per McClatchy, Nazar Mohammad’s, Mohammad Naim’s, and Sayed Jan’s, including a Sayed Jan guesthouse (or guestroom) where one man named Khudaydad was killed. Stephenson reports that some children of Nazar Mohammad (Rubbinah and Naseema) were staying in the Sayed Jan home (Jan was away at his farm), with Nazar Mohammad’s first wife Shah Babo. See my casualty list below for more, and my original post (which I will soon be editing/updating have edited and updated to match the new facts I’ve learned from Mamoon). Also see the important later account of the attack on Alkozai’s Ibrahim Khan Houses neighborhood that was provided in October, 2012, by an eyewitness teenage boy (one of the survivors interviewed by Stephenson), which I added to the caption of the first photograph below on January 5, 2013 (in key respects, Rafiullah’s October account differs significantly from Stephenson’s May McClatchy reporting).]

In addition to the three young daughters of Nazar Mohammad (two of them wounded) who survived, a young daughter of neighbor Mohammad Naim was shot and wounded in Alkozai: Parmina (age unknown 1516), sister of Sediqullah (11-14), who was also shot and wounded in his father’s home (Sediqullah is the young boy interviewed on-camera by Yalda Hakim for DatelineSBS). Jon Stephenson (a McClatchy special correspondent from New Zealand) reported in May that “around a dozen” half-asleep Naim family members watched 5 children be shot, and a grandmother – Khalida, aka Nikmarghah, wife of Sayed Jan, who’d fled from next door – killed in the Naim home, and that a total of 19 people resided there, including 3 women and 8 girls – none of whom have been heard from in the English-language media about what they saw that night, as far as I know.

Besides the 11 girls who may have witnessed the attacks in Alkozai, there are apparently 7 6 children in the Dawood family, including at least a couple of young girls – and, importantly, as explained further below, these Dawood children witnessed an attack that did not take place in Najiban village proper, but instead at a home located about 1/2 KM away from Najiban. However, only brief comments from two of Dawood’s (unidentified) young sons have been aired by the English-language media, and in Najiban village proper, of course, no one survived the slaughter in the Mohammad Wazir home (as confirmed this week by Mohammad Wazir, via Durrani – i.e., the rumor/report of an adult sister surviving the Wazir home attack is false).

In stark contrast to that “Western” media track record, on March 11 itself, in the immediate aftermath of the slaughter, Mamoon Durrani personally interviewed three of those five adult female eyewitnesses, about the attacks they witnessed that night in two different locations near Camp Belamby. And yet it appears that, almost four months after the attack, no more than a sentence or two of the interviews Durrani conducted with those 3 women have ever been made public, in English – though those interviews (and videos and photographs) are freely available from him. (And I very much doubt that Durrani is the only Afghan reporter/photographer with an unseen wealth of raw Panjwai footage and information.) Here’s one of the sentences Durrani recorded that made it into the English-language media’s reporting about Panjwai, via AFP on March 11:

“May God kill the only son of Karzai, so he feels what we feel.”

– The Aunt and mother-in-law of Mohammad Dawood, a previously-unknown eyewitness to his murder, who gave a short recorded interview to Mamoon Durrani at her home on March 11, 2012
(see translated excerpts added below as of 11/30/2012)

Mamoon Durrani also interviewed at length on March 11 a rare, and previously-unmentioned, eyewitness (or at least ‘earwitness’) to the attack on the Mohammad Wazir home in Najiban (as did at least one other Afghan reporter or photographer on the scene) – a woman (see photo below) who remains unnamed (or, at least, as the following confusing Update paragraph indicates, has been given multiple names and identities, all unconfirmed and unverified), though a known neighbor of the affected Wazir household in that village, because of Afghan traditions respecting women (among other things..).

[August 8 Update/Addition: In a vivid illustration of the deplorable lack of visibility and coverage of the accounts of the many affected female eyewitnesses and survivors of the Panjwai Massacre, I learned by happenstance on August 7th that – unless she’s the eyewitness neighbor named “Palwasha” who I belatedly found described by Mohammad Wazir in BusinessWeek on March 23rd – the aforesaid “unnamed” female eyewitness to the attack on the Mohammad Wazir home in Najiban is in fact may be the surviving grandmother of the children of Mohammad Wazir and his wife Bibi Zahra; Bibi was, I assume, this woman’s daughter (since Mohammad Wazir’s mother, the grandmother on the father’s side of the family, was killed that night). That, at least, is according to this lone photo caption – that I happened upon online almost five months after the attacks while looking for something else – which I believe was provided courtesy of Afghan Associated Press photographer Allauddin Khan, who not only took this woman’s photograph, and evidently recorded her story on March 11, but wrote down her name as well: Anar Gul. ((((Edited August 11 to add: Searches on “Anar Gul” reveal that a number of media outlets indeed ran that caption with the same AP photograph, and also with another AP photograph of the same woman in the same minivan – a photo that shows the burned leg of one of the Wazir family victims – while she was holding a microphone during an interview. Notably, however, I’ve so far found only one article that actually quotes an “Anar Gul,” and that article says that her brother-in-law is “Samad Khan” (Abdul Samad, Wazir’s uncle) of “Balandi village” – which, if true, would likely mean that “Anar Gul” is not the grandmother of the Wazir children. That Xinhua article also indicates that Anar Gul heard, apparently, her door being pounded on in the “nearby Zangabad village” – though Zangabad village (see map captions below), as opposed to the Zangabad area, is evidently more than five miles to the southwest quite near [see December 11, 2012 Note at top of post] the [corrected] location of Camp Belamby – and also quotes 57-year-old “Zangabad villager” Allah Gul, and a woman named Rahila who lost her brother. There is, in addition, a New York Times article from March 11, excerpted in my April 10th post, that quotes an “Anar Gula,” who’s described as an elderly neighbor who rushed to the [Mohammad Wazir] house…”, and who said, among other things, “we put out the fire.”)))) Yet unlike Mohammad Wazir’s uncle Abdul Samad, who was away the night of the attack but has been prominently quoted by the media about his losses, Anar Gulpossibly present that night in at least some capacity [unless even if Anar Gul actually does live in Zangabad village proper], and [possibly] the sole surviving grandmother of the murdered children and surviving Wazir child – has apparently so far been publicly quoted to a very limited extent only as an anonymous villager making a few general remarks about the Najiban attack – through the BBC and AFP reporting of Mamoon Durrani – apart from that one photo caption by an Afghan AP photographer (and the March 18 Xinhua article by Abdul Haleem and Yangtze Yan).]

[[Updated September 14 to add: The following quote is a translated excerpt from an invaluable 6-minute Pashto-language video by Pajhwok Afghan News Video Services {I later substituted a YouTube link for the original link}, that’s been posted online since March 12 (with portions apparently made available to other media outlets since March 11). I belatedly discovered this rare public video footage through a helpful “live blog” page compiled by Priyanka Boghani, which linked to a March 12 Robert Mackey New York Times blog post. The Pajhwok video contains short interviews about the Panjwai Massacre with two different women, both apparently witnesses – the first is the woman possibly named “Anar Gul” (photo; Pajhwok screen capture); the second is an unidentified woman (Pajhwok screen capture) I’ve seen in no other photo or footage, who gestures while describing what happened, including apparently showing her hair being pulled…(screen capture; also see the shorter video clips I found in late November, as linked and transcribed below, and the 12/3 Update below identifying this witness as a grandmother of the Mohammad Dawood family, from south of Camp Belamby). [The video also includes March 11 footage of Asadullah Khalid – who was nominated and approved in September to head Afghanistan’s CIA-funded National Directorate of Security – speaking to the Afghan media at Camp Belamby while standing next to Haji Abdul Samad of Najiban (screen capture; another capture from a higher-quality video I found in late November), and brief footage of a grief-stricken Haji Sayed Jan of Alkozai at Camp Belamby March 11 (similar screen captures from other videos: 1, 2).] Robert Mackey found the following translation of a 10-second portion of the minute-plus (Pashto-language) Pajhwok interview of Anar Gul, in a shorter English-language-narrated March 12 Al Jazeera video – that includes about two minutes of the 6 minutes of Pajhwok footage – and helpfully included that translation in his New York Times blog post; an Al Jazeera subtitle in their video (narrated by Bernard Smith in Kabul) identifies Anar Gul as “Gul Bashra, Mother:”

They killed a child who was 2 years old. Was this child Taliban? There is no Taliban here. Americans are always threatening us with dogs and helicopters during night raids.” Gul Bashra, Mother, speaking in a Pajhwok Afghan News Video Services clip – from a minivan carrying two Najiban village, Wazir/Samad family Panjwai Massacre victims – at COP Belamby, Panjwai district, Kandahar province, March 11, 2012

This YouTube video that I found November 18th contains more of the same interview of “Gul Bashra” in Pashto (here she speaks, with a boy who seems to be her son and is seen in the vehicle with her in this 6:07 footage, for a total of three minutes, and someone has added a few Pashto subtitles to the footage).

[According to a March 12 New Yorker blog post, “Gul Bashra” also said (to a BBC reporter; no link – but see the BBC video link and further translation I added 11/30, just below): “I told my son not to speak because the Americans are here. They went next door and the first thing they did was shoot the dog. And then there was a muffled bang inside the room – but who could go and see?” The same blog post reports that another, unnamed, woman (possibly confirmed [see below] to be the second woman interviewed in the Pajhwok video above) told the BBC (no link – but see the AFP-TV video link and further translation I added 11/30, just below): “There was one man, and he dragged a woman by her hair and banged her head repeatedly against the wall. She didn’t say a word.”]

On March 11, without naming her, U.S. commercial television network ABC-TV played four seconds of the same footage of Anar Gul/Gul Bashra seen in the Pajhwok video (as part of a 2:38 ABC News video clip also hosted on the live blog page, under the heading “UPDATE: 3/12/12 12:15 PM ET Eyewitness account”), during which Martha Raddatz – Senior National Security Correspondent for ABC News, reporting from Washington, D.C. – tellingly informed her audience that Gul said (only): “‘He killed a child,’ says this mother. ‘Was this child part of the Taliban?'” That account seems to have aired on Sunday morning, U.S. time. On ABC’s World News Tonight, Sunday evening, the same brief footage of Anar Gul/Gul Bashra is played, and this time the narrator (Muhammad Lila in Islamabad, Pakistan) quotes Gul as saying: “‘They killed a child,’ says this grieving mother. ‘Was this child part of the Taliban?'”]]

[[In post-November-18 searches of YouTube I found four more clips of the same or similar Gul Bashra/Anar Gul interview footage, this time with English translations of more of what the Afghan reporter(s) were told March 11 by Gool Booshra (phonetically, according to this BBC-News video’s narration) – which I’ve transcribed below (added to the post on November 30th; bracketed inserts mine).]]

BBC video translation: “It was 2:00 in the morning [she holds up two fingers, apparently to represent the time]. I woke up for my fasting breakfast. When I turned the light on, I heard noises. I told my son [looks at and gestures toward him on the other side of the minivan] not to speak because the Americans are here. They were telling us to be quiet, and not to come out. When he kicked the door, my door had a stone so it didn’t open. They moved from my door, and went next door and the first thing they did was to shoot the dog, and then there was a muffled bang inside the room – but who could go and see. And then there were two planes overhead.”
(70 seconds in a 1:12 video uploaded March 12)
[Compare stated timing to the Article 32 testimony of a U.S. Army witness concerning the whereabouts of SSG Bales at 2:00-2:15 AM that night. And to the Bales Article 32 hearing testimony of Afghan National Army guard Tosh Ali (the soldier on the right in this screen capture), who said he saw an American soldier leave Camp Belamby (1+ KM north of the Wazir home), on foot, at 2:30 AM. Gul Bashra’s stated timing is corroborated by the account of Wazir neighborhood resident Agha Lala in Reuters (“he was awoken by gunfire at about 2 a.m.“). At the Mohammad Dawood home, .5 KM east of the Wazir home, Dawood nephew Toor Jan/Ali Ahmad is quoted by CNN, as a witness, saying: “It was around 3 at night that they entered the room.” And non-witness Dawood brother Haji Baran Akhon told President Karzai, based on the accounts of surviving witnesses, that “it was two or three in the morning” when the attack happened at the isolated Dawood home.]

AFP-TV video translation: “Four were girls and four others were boys. Now there are only two. They assassinated children, including those who were just two years old. For God’s sake, is it supposed to be done to Muslims? Is this two-year-old child a Taliban fighter? I swear by God, I haven’t seen any Taliban fighters for the last five months. They search our homes with dogs and helicopters. At the beginning they allowed us to live in this area. They said we have nothing to do with you people. This is your own village and your country.”
(70 seconds in a 1:26 video uploaded March 12)

CNN video narration by Sara Sidner: “This base told us to come back to our villages. They said we won’t bother you. This is your land and this is your own village. Then those dogs come and grab us.”
(12 seconds in a 2:16 video uploaded March 13)

BBC-News video narration by Mike Woodridge: “They killed a two-year-old child. Was this child a Taliban? Believe me, I’ve not seen a two-year-old Taliban member yet.”
(15 seconds in a 2:07 video uploaded March 11)

Gul Bashra of Najiban village, Panjwai district, March 11, 2012

(See also Gul Bashra’s 1-minute and 3-minute Pashto-language interviews.)

Multimedia journalist Lela Ahmadzai, a trilingual Pashto speaker, has very helpfully provided me with the following translation of Gul Bashra’s 1-minute Pashto-language Pajhwok Afghan News video interview (added December 15th):
“Four girls and four boys. Some are two years old. Is the child Taliban? In God’s name, I have seen no Taliban for five months. Their dogs check us and their helicopters are always there and check us. But this is our country and we can say nothing. We are leaving our own country and place because of them. Our doors are broken. That was not one person, there were many. There were many footprints. I could not go outside or I too would have been fired upon. Eleven people are dead. This family is erased.”
(1 minute in a 6:35 video uploaded March 12)

[“Four girls and four boys” may reference all the Wazir family victims except Wazir brother Akhtar Mohammad’s new wife Nadia or Nazia – indications are that her body may not have been transported to Camp Belamby – and Mohammad Wazir’s mother and wife, who may be the victims who were transported to the gate(s) of Compat Outpost Belamby in this vehicle.]

[[Also included on two of the above four YouTube videos I found after 11/18 are the first English translations I’ve seen of snippets of interviews with the previously-unknown, still-unnamed Dawood woman I first saw in the 6:35 Pajhwok video linked above. At least one of these three translations (including a second key AFP video), if accurate [which, as the 12/3 Edit just below explains, it may not be, and, as the alternative translation added below on December 15th indicates, it almost certainly is not] reveals the outlines of a trauma that as far as I can tell to date – November 30, 2012 – is not accounted for by any of the 16 admitted Panjwai Massacre deaths. This Agence France-Presse footage and English translation (if accurate as transcribed below) is seemingly misleadingly appeared to be the first known public video evidence of an eyewitness describing a Panjwai Massacre murder (of an unidentified 7-year-old boy) that is not charged to SSG Bales. If the following translations are accurate, the unknown unnamed woman is a [Dawood family] mother and grandmother.]]

AFP-TV video translation (but see 12/3 edit and 12/15 alternative translation just below): “They brought my dearest 7-year-old grandchild here and killed him in front of me. And he put the Kalashnikov barrel in my daughter-in-law’s mouth. And he was pulling my daughter by her hair outside. I saw one person. He had a Kalashnikov.”
(16 seconds in a 1:00 video uploaded March 12)

CNN video narration by Sara Sidner: “One guy came in and pulled a boy from his sleep and he shot him in this doorway. Then they came back inside the room and put a gun in the mouth of another child and stomped on another boy.”
(11 seconds in a 2:16 video uploaded March 13)

BBC video translation: “I saw one man. I can’t lie. I didn’t see another. There was one man and he dragged a woman by her hair, and banged her head repeatedly against the wall. She didn’t say a word.”
(10 seconds in a 1:12 video uploaded March 12)

Unidentified Dawood Grandmother (mother of Mohammad Dawood’s wife Massouma, and Aunt of Mohammad Dawood and Haji Baran Akhon/Mullah Barraan) from an unidentified village who was [mistakenly] translated as saying she saw her unidentified 7-year-old grandson shot to death in front of her during the Panjwai Massacre, March 11, 2012

(See also the grandmother’s 30-second Pashto-language interview.)

Edited December 3, to add: As indicated in the 1-minute AFP-TV video, the non-NATO Panjwai footage in that clip was recorded by Mamoon Durrani for AFP. On December 3rd (after the Afghan government’s 3-month blockage of the YouTube site was finally lifted, at least in part) Mamoon confirmed for me that the footage is indeed from his March 11th reporting, and told me that the unknown woman is in fact the “Aunt” (or possibly and mother-in-law??) of Mohammad Dawood, who is referenced, and briefly quoted, earlier in the post. Futhermore, based on Mamoon’s recollection of his conversation with the Dawood grandmother, she did not tell Mamoon (in Pashto) that a grandson of hers was “killed” (contrary to the AFP-TV video’s English translation of her words transcribed above). Likewise, the Dawood grandmother apparently did not say that a grandson of hers (or a “boy”) was “shot,” either, contrary to the CNN video’s English translation of a different Pashto-language interview. Mamoon instead remembers the Dawood grandmother showing him where her adult nephew (or and son-in-law) Mohammad Dawood was killed, and telling him that the soldier put a gun in the mouth of her grandson. Thus, indications are that one or more of these English translations of the Dawood grandmother may not in fact be accurate…

Edited December 15, to add: Here is an apparently accurate translation – that confirms the interviewer’s own memory of the conversation – of Mamoon Durrani’s excerpted AFP-TV interview footage of Mohammad Dawood’s mother-in-law and Aunt (the full original interview lasts less than 60 seconds), which has been very kindly provided to me by multimedia journalist Lela Ahmadzai, a trilingual Pashto speaker (bracketed inserts are mine):

The murdered man [Mohammad Dawood] is my son-in-law and nephew [she used the non-specific Pashto word “lala” for Dawood; exact relationship confirmed by her nephew Haji Mullah Barraan, via Mamoon Durrani]. It happened last night, right here [she gestured toward the bloodstained rug on the floor]. The child [apparently meaning her 6-month-old grandson Hazratullah, seen here in his mother’s arms]: he held the gun in his mouth; pulled the woman’s hair [apparently meaning her daughter Massouma, Dawood’s wife]. He beat her head against the wall. I saw only one person. May I be blinded if I lie. I saw only one person.
(16 seconds in a 1:00 video uploaded March 12)

[Before I learned the identity of this Dawood family grandmother and corrected the name of the .jpg file accordingly, this or a similar uploaded screen capture of her briefly had the file name of: “Unidentified grandmother who lost her favorite grandson in Panjwai Massacre, AFP-TV screen capture, March 11, 2012.”]

To be fair to any members of the media who tried to get into Panjwai a day or two after the attacks to report the story, both the Taliban – who immediately made access to the Mohammad Wazir home in Najiban an IED-laden hazard, according to Wazir via Durrani – and the U.S. military/ISAF/NATO were doing their best to prevent such visits. [A village elder told Durrani March 11 that the Taliban have a mosque only about 2 kilometers from the Camp Belamby area, and soldiers at the Camp warned him that the fort-like Grape Hut structures (“kishmish khana” in Pashto), which are used to dry the grape crop into raisins, are a common launching post of the Taliban for attacks or sniper fire, including on Camp Belamby. See this photo of a Najiban Grape Hut or “Raisins Home” that Durrani took in July (see also this aerial photo of a similar structure elsewhere), and this photo of the interior of a Kandahar Grape Hut. (One screen capture of DatelineSBS footage of Alkozai included in my April 10 post appears to show an Alkozai Grape Hut in the distance on the right, beside the lane and bordering vineyards.) This U.S. Army photo, taken July 30, 2012 in the Panjwai district, includes a good view of the entranceway on one end of a traditional Afghan kishmishkhana/grape-drying hut.]

Mamoon Durrani told the BBC in an informative (and highly-recommended) 8-minute radio interview March 17 that the U.S. military even tried to prevent the Afghan reporters and photographers who quickly made it to Camp Belamby on the day of the massacre from leaving the base to visit the affected villages. Durrani succeeded in quickly overcoming that hurdle because he was recognized by someone in the crowd of (as many as 300) demonstrators outside the Camp, who hugged him and offered to take him to a village (apparently Alkozai, to begin with). Thus Durrani apparently saw all of the victims in Alkozai (collected together into the Sayed Jan home from the three homes in which they had been killed – a circumstance that has led to widespread misreporting that the four Alkozai deaths all occurred in one home), and at the Dawood home (I believe), and in Najiban at the Wazir home, before they had been transported in vehicles by the villagers to (but apparently not inside) Camp Belamby. Durrani photographed the 16 bodies he saw on March 11 (which, as indicated by this March 11 AFP report, included the body of Mohammad Wazir’s mother lying near the doorway of the main gate to her Najiban home), and video-recorded the 6 wounded he saw on March 12 at the Kandahar Airfield military hospital.

Something else that’s apparently never been made public in the English-language media about the attacks in Panjwai is that the home of Mohammad Dawood – who was killed that night – is not in Balandi/Najiban village proper (a settlement located 1.25 KM, or about one mile, southwest of Camp Belamby). Instead, as a portion of a map [see July-posted black-circled version below] from an Afghan government source reveals (and as Durrani himself can attest after visiting the Dawood home on March 11), the Dawood home sits alone about one-half kilometer east/northeast of the small Najiban/Balandi neighborhood where the Mohammad Wazir family was killed – across a vineyard, or “Grapes garden” as Durrani calls it, probably a wheat field, and multiple farm fields. The first map, and aerial photos below – which I updated/added on December 11th, as noted at the top of the post – clearly show that the isolated Dawood home is almost as far from the Wazir home (both south of COP Belamby), as Alkozai is from COP Belamby (.5 KM or about one-third mile north of the US/Afghan special operators base at Belambai). [To place the following “Horn of Panjwai” map and photos into context relative to the locations of Panjwai center/town (Bazaar-e Panjwai) and Kandahar city, see this map and this aerial photo.]

A corrected, December, 2012 version of a Panjwai Massacre investigation map that now marks with two red arrows the accurate location of the massacre in the Horn of Panjwai or Zangabad area of Kandahar province, Afghanistan

As noted above, on December 11, 2012, I added this map to the post, along with the following aerial photographs, to show the accurate location of the Panjwai Massacre in the Horn of Panjwai, or Zangabad area, of Kandahar province, Afghanistan. Camp Belamby and the attacked villages and homes are not where the black “bullseye” circle cropped from the right side of this map placed them (see full circle in original, July-posted map below), but are instead more than five miles to the west, in the approximate location indicated by the two red arrows I’ve added to the map above. The massacre took place very near the village(s) of Zangabad, in the wider area that’s also known as Zangabad (or Zangall Abad) among local residents. The Registan Desert begins on the south bank of the Dowry River, which is the southern of the two rivers visible on this map (the Arghandab River is to the north) shortly before their confluence about 15 miles west of the massacre scene.

A 2009 GoogleEarth aerial photo, added to the post on December 11, 2012, showing the accurate locale of the Panjwai Massacre in the Horn of Panjwai, or Zangabad area, of Panjwai district, Kandahar province, Afghanistan. North is straight up. The red circle I’ve added to the photo surrounds the villages of Alkozai on the north, Najiban/Balandi on the south, the Mohammad Dawood home in the bulldozed area east of Najiban, and joint U.S./Afghan base Combat Outpost Belamby close to the center of the circle, as pinpointed in the aerial photo below (North is straight up here; East is straight up in the photo below).

A 2004 GoogleEarth aerial photo of the area where the Panjwai Massacre took place on March 11, 2012 in the Horn of Panjwai, Kandahar province, Afghanistan, about midway between the Arghandab and Dowry Rivers. (Added to the post December 11, 2012. Click photo for larger version. North is to the left.) Afghan reporter Mamoon Durrani personally visited each labeled site – all located to the east/northeast of lower Zangabad village as marked on the preceding 2009 aerial photograph (lower Zangabad village is just off this photo to the lower right) – and then precisely pinpointed them on this photo. Thanks to Mamoon’s careful mapping of the places he visited, I’ve now been able to locate and link close-ups of the individual sites on 2009 GoogleEarth photos (where North is again straight up, in alignment with the wider area photo just above this one), as follows: The Haji Sayed Jan home and, just to its east, the smaller attached homes (and guest quarters) of Haji Mohammad Naim and Haji Nazar Mohammad (Haji Sayed Jan’s murdered brother) – which together make up Alkozai’s Ibrahim Khan Houses; Camp Belamby, east of the road and an orchard; Haji Mohammad Dawood home amid bulldozed/barren vineyards and orchards; Haji Mohammad Wazir home in Najiban, center-bottom right, just west of a wheat field. Also see the photograph, taken at the graveyard marked above, that I’ve added to the foot of the post.

A Panjwai Massacre investigation map that, as circled, MISPLACES the location of the massacre more than 5 miles east of the actual scene and site of Camp Belamby

This is a map being used by Afghan authorities investigating the March 11, 2012 Panjwai Massacre. [On December 11, 2012, I discovered, with the help of Mamoon Durrani, that the circled “bullseye” location on this map is in fact WRONG – though the layout of the four specified locations linked with red within the circle is now confirmed by Durrani’s careful mapping (see preceding photo). The circled location is wrong because it, like the McClatchy graphic just below (and the BBC map graphic in my April post), uses an “Alkozi” village as a reference point that is not the Alkozai where Panjwai Massacre victims lived. The victims lived in another, smaller “Alkozai” settlement some miles further west in the Horn of Panjwai, just northeast of lower Zangabad village – as shown by the map and aerial photographs now inserted above.] Note that the locations for Camp Belamby (“Bilambi Camp”), Najiban (“Najeban”), and the home of Mohammad Dawood (“Dawood’s home”), plus the English words “East” and “South,” the black circle, and three red pen marks connecting three locations to Camp (or COP) Belamby, have all apparently been inserted or overlaid on the original map. The “bad (1)” label visible on the lower left of the map is part of “Zangabad (1)” – which marks the location of the closer of two small Zangabad villages north of the Dowry River, as distinct from the wider Zangabad area, which covers most or all of this map.

For purposes of comparison, the following map graphic, produced by MCT Photo Service for an April 11 McClatchy story, provides a scale, and finer detail, including the location of the village of Mokhoyan (scene of the March 8 threats detailed here) and of some roads in the area immediately surrounding Camp Belamby (“Belambai”) – which is located in the center of the Zangabad area or region of the Panjwai district in Kandahar province, southeastern Afghanistan [note that the orientation of this graphic appears to be Northeast in the direction of its top side, not North as in the map above; and as noted at the top of the post December 11th, the McClatchy graphic mistakenly places the scene of the massacre, and uses an aerial photo location, southeast of Bazaar-e Panjwai, instead of 5-10 miles to its southwest]: Read the rest of this entry »

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Panjwai, March 11, 2012: Eyewitnesses to the Slaughter of Innocents

For details of the U.S. Army’s investigation of this mass murder, and the commanding general’s AR 15-6 review, see the Timelines linked in the December 31, 2015 note atop Public Panjwai Massacre Facts

During the hours between midnight and dawn on Sunday, March 11, 2012, local time (March 10, U.S. time), American troop(s) – one, according to non-eyewitnesses, more than one, according to most eyewitnesses – who’d been deployed, pursuant to the September, 2001 Congressional Authorization for Use of Military Force (AUMF), at a small Forward Operating Base (FOB) [or Combat Outpost (COP; aerial photo, added 12/12/12)] named Camp Belambyreportedly a “U.S. special-operations forces base” – in Panjwai district, Kandahar province, southern Afghanistan, barbarically shot and killed at least 16 unarmed civilians – 9 8-10 children (six of them under Age 10), 4 4-5 women, and 3 4-7 men – in their homes and beds in two (or three) two-three, or more, nearby settlements, and wounded at least 7 others, including 5 more children.

With most families in that rural farming region of Panjwai apparently too poor even to afford guns, the only defenses those Afghan citizens had against the overwhelming force of their attacker(s) were their barking dogs; those dogs – according to two different accounts apparently originating in separate villages (one to BBC News from an unnamed woman in “Najeeban,” and one to Australian SBS-TV reporter Yalda Hakim from a wounded girl [Noorbinak, reportedly of Alkozai] who lost her father) – were the first creatures shot and killed by the heavily-armed attacker(s) that night. Attacker(s) who apparently didn’t face returning fire from even a single gun fired in self-defense by the terrorized villagers – who’ve been repeatedly subjected over the years to General Warrant-style entry-at-will into their homes by armed foreigners – targeted in either 2-3, or more, rural settlements clustered along narrow dirt lanes bordering wheat fields and vineyards. [“‘As we understand it, the special forces have the power to do whatever they want, such as conducting operations and arresting people,’ (Haji Mohammad) Noor (head of the Panjwayi district council) said.”]

Since then, as Senior Al Jazeera Producer Qais Azimy put it in a blog post on Monday, March 19:

Many mainstream media outlets channelled a significant amount of energy into uncovering the slightest detail about the accused soldier – now identified as [non-special-forces Army] Staff Sergeant Robert Bales. We even know where his wife wanted to go for vacation, or what she said on her personal blog.

But the victims became a footnote, an anonymous footnote. Just the number 16. No one bothered to ask their ages, their hobbies, their aspirations. Worst of all, no one bothered to ask their names.

In honoring their memory, I write their names below, and the little we know about them: that nine of them were children, three [or four, or five] were women.

Or, as an Everett, Washington commenter named “Filbert” put it 3/25 on the website of the Seattle Times, in response to the paper’s publication of an important March 24 Associated Press article about the victims: “Seattle Times, why do stories of Bales get plastered all over page 1 for 2 weeks, and when you finally get around to it, the story of this man [Mohammad Wazir of Balandi/Najiban, who lost 11 members of his family] is relegated to page A14?”

Azimy’s list – replicated at the foot of this post – does indeed seem to be the most comprehensive English-language account to date of the names of the killed and wounded in these small, close-knit farming communities. The U.S. government’s March 23, 2012 military Charge Sheet for Staff Sergeant Bales lists no ages for those killed, redacts all the names of the victims, and lists no name for the unknown 17th victim, evidently a female; yet the victims were apparently well-enough known to the U.S. military by Saturday, March 24 for surviving family members to receive some monetary compensation (The families of the dead, who received the money Saturday at the governor’s office, were told that the money came from U.S. President Barack Obama, said Kandahar provincial council member Agha Lalai”). The hurried early reporting does include scattered accounts of names and ages of some of the victims, but often confuses or omits their names and/or villages; their villages are likewise not specified by Azimy, nor included in the U.S. Charge Sheet. Only after Azimy’s 3/19 post was published did some more detailed and valuable English-language reporting about the victims begin to fill in some of the obvious gaps in coverage (joining an early, laudable New York Times report from March 12) – in the Wall Street Journal on March 22, at late March 22/early March 23, [in BusinessWeek March 22/23 {the BusinessWeek URL was later changed to BloombergBusiness}, including important information about a Najiban eyewitness, which I belatedly found and excerpted at the end of my follow-up July 7th post,] in the Associated Press on March 24, and in a humane opinion piece – “Are all innocent victims equal?” – by India/Kabul-based CNN International correspondent Sara Sidner, who took the time to include the names of all 16 killed (her source was Afghan officials, and her list matches the Qais Azimy list below, aside from regional differences in spelling and address).

Sara Sidner’s March 24 opinion piece compassionately echoes and reinforces Azimy’s:

These are the names of the men, women and children allegedly murdered by a U.S. soldier in Afghanistan’s Panjwai District in Kandahar Province on March 11, according to Afghan officials. The U.S. military has now added one more name to that list but no one has revealed that victim’s name so far.

In this case, the how was quickly explained by witnesses, village elders, Afghan and NATO officials: They were shot dead. But looking across local, regional and international media for days after the massacre the full list of names and ages was nowhere to be found.

Even when some of the family members of the victims and village elders came to Kabul to the presidential palace to speak with President Karzai [on Friday, March 16], few started by announcing their names but instead launched into accounts of what happened that night. And even they were at a loss to name every single victim at the time.


Also there is no real “digital footprint” in villages where electricity and running water are luxuries, making communication extremely difficult.

Ages were often hard to ascertain, because, like many places in the world with poverty and high illiteracy rates, people do not know their birth dates.


Life is not cheap. It never was and never will be — no matter where you live. I have witnessed the suffering of a mother in Oakland, California, whose child was killed by a bullet and the grieving of a mother in Sukur, Pakistan, whose child was swept away by a flood. There is no difference in the amount of pain they endure, or the tears they shed.

So in the interest of innocent victims everywhere, we as journalists need to work harder to find out who they were, to paint a picture of the lives they had and the people who grieve for them.

May they all rest in peace — and be counted.

To its great credit, in late March the Australian public television network SBS added to those valuable print reports (and to the invaluable early photographs and video footage obtained by Afghan reporters) some extremely helpful, difficult-to-obtain television footage – of interviews with some of the surviving relatives of those killed that night, and of one of the homes in one of the villages where people were killed – taken during a trip to Panjwai by Australian SBS-TV reporter Yalda Hakim and cameraman Ryan Sheridan for this March 27, 2012 SBS Dateline program (the main source of the multiple screen-captured images in this post):

Screen capture of 3/27/2012 SBS-TV broadcast of "Anatomy of a Massacre" with Panjwai graves in the background

Because of its sensationalism, among other, higher motives we can hope, many non-Afghan media outlets paired with local Afghan reporters to have at least one go at this story – a real “Saturday Night Massacre” committed by someone(s) serving in the Executive Branch of our government. The resulting coverage, as hasty and heavily Pentagon-tilted as it is, remains a valuable record, even though it primarily consists – once the many press-release pronouncements from nominally-responsible authorities are removed – of a muddled and unnecessarily confusing scattershot of information, which has been given little follow-up. To date, no non-Afghan account that I’ve seen has tried to systematically list, by location, name, relationship, and age, the 4-5 6 (or more) households primarily affected by the killer(s) that night, or to put faces to the foreign names for English-speaking audiences.

Nevertheless – in spite of the attempt by at least one American media outlet [print page “no longer available” 10/8; replacement link] to place blame for the confused reporting on the traumatized and grieving victims themselves, and the efforts of many in the media to imply that the real story is now shrouded in mystery or unobtainable, in the face of heavy Pentagon/NATO/ISAF pressure to toe the U.S. military’s “lone gunman” line on the attacks – when the scattered (and, obviously, translated, however imperfectly) snippets in media reports quoting Afghan witnesses and survivors are organized and examined, the accounts by the Afghan villagers seem to be remarkably consistent and coherent.

Notably, those accounts by Afghan villagers – in non-Afghan media outlets, though apparently mostly obtained by local, on-the-ground Afghan reporters – who witnessed the attacks, and/or their aftermath, provide very little corroboration from named Afghans describing a lone U.S. soldier as responsible. This is true even though more than one named survivor (three of them children) describes being shot at by a single (unidentified American, or “NATO,” in one case) soldier – because that single soldier is also generally described by the same survivor, or by their family, as being accompanied by other soldiers, often carrying lights, elsewhere in the home, or in the yard between the house itself and the courtyard wall that fronts the public street – a common layout in these small settlements, as seen in this screen capture from the SBS-TV Dateline footage of Alkozai filmed on March 23, 2012: Read the rest of this entry »

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Launching, 3..2..1..: Citizens As “Enemy Combatants”

Since posting my last on-line diary preceding this one, in October, 2011 (as reposted just below this diary on the Home Page), some crucial developments and milestones in the American courts and Congress have transpired, that are deserving of all the attention we can give them. Thankfully, many others were on the case, speaking and writing with conviction and passion to anyone who would listen – which, predictably, didn’t include most of our incumbent elected representatives. As I catch up on some of the on-line contributions I missed over the last 3-4 months, and take the helm of the new DebatingChambers site, I plan to update this launch-post (or a subsequent post) with links to some of that important commentary and analysis. Meanwhile, in this post I’ll try to highlight the path down which recent inhumane actions of public officeholders in our Congress and federal judiciary are taking us, with help from the far-reaching perspective provided by an important new piece of habeas corpus scholarship.

Last month, of course, saw the tolling [the link is to a powerful and insightful piece in the National Law Journal by U.S. Army Major Todd Pierce, of the DOD’s OMC/Office of Chief Defense Counsel] of the disgraceful tenth anniversary, on January 11, 2012, of the opening of an American military prison in Cuba, that was deliberately designed (obviously, very successfully) to evade both the restrictions of domestic American law and any restrictions nominally imposed by the “law of nations” and its subsidiary “law of war,” on the treatment and disposition of its prisoners. While the month before that, there was, and is, the Buck McKeon/Carl Levin National Defense Authorization Act (NDAA) of 2012, now Public Law 112-81, after President Obama signed it into law on December 31, 2011 [in text or pdf format, when the law is available at the GPOffice, which it [now, on 3/30/12] is not at this time, in either format; meanwhile see this link for the final bill text].

In particular, there’s the section of that mammoth piece of NDAA legislation entitled “Detainee Matters” – in Subtitle D of Title X of Division A of the version that first passed the Senate 93-7 on 12/1/2011 – which was adopted, in final Conference Report form, 283-186 in the House on December 14th, and 86-13 in the Senate on December 15th. [Though the House/Senate conference report had only been issued on December 12th, five days after the House conferees had been appointed on 12/7 (Senate conferees were appointed on 12/1).]

Here’s how the Congressional Research Service summarized the version of the language that 93 incumbent Senators voted to adopt on 12/1, in Carl Levin’s Senate version of the bill, S. 1867 (which came out of the Senate Armed Services Committee that Levin chairs, on 11/15/11, without a written report – after being marked-up by the Committee in closed session last June); see also H.R. 1540, and earlier CRS summaries of the legislation [my emphasis and bracketed/indented comments]:

Subtitle D: Detainee Matters

(Sec. 1031) Affirms that the authority of the President to use all necessary and appropriate force pursuant to the [2001 (Public Law 107-40)] Authorization for Use of Military Force includes the authority for U.S. Armed Forces to detain [somewhere] covered persons pending disposition under the law of war. Defines a “covered person” as a person who: (1) planned, authorized, committed, or aided the terrorist attacks on the United States of September 11, 2001, or harbored those responsible for such attacks; or (2) was part of or substantially supported al Qaeda, the Taliban, or [unspecified] associated forces that are engaged in hostilities against the United States or its [unspecified] coalition partners. Requires the Secretary to regularly brief Congress on the application of such authority.

  • Back on November 1, 2011, Steve Vladeck described this section very well, writing: “In one fell swoop, the NDAA thereby severs the requirement that detention be tied to a group’s responsibility for the September 11 attacks; overrides international law by authorizing detention of individuals who may have never committed a belligerent act; and effectively converts our conflict against those responsible for September 11 into a worldwide military operation against a breathtaking array of terrorist groups engaged in hostilities against virtually any of our allies.”  (Just as the Executive Branch has been advocating in Guantanamo habeas cases for years, with the full-throated support of a radical D.C. Circuit Court of Appeals – the only lower appellate court to which they must answer in these cases; no “circuit splits” possible. This profoundly-consequential  decision was made after exactly how many open, public – or even “closed” – hearings were convened, about the new, unbounded 2011 NDAA-AUMF, by the Senate Armed Services Committee, or by any other Senate committee of jurisdiction??) – pow wow

(Sec. 1032) Requires U.S. Armed Forces to hold in custody [somewhere…] pending disposition a person who was [according to whom…?? That‘s where the whole problem began and begins, with Army Regulation 190-8** having been shredded by 2002 presidential decree (see Comment 9)… – pow wow] a member or part of al Qaeda or an [unspecified] associated force and participated in planning or carrying out an attack or attempted attack against the United States or its [unspecified] coalition partners. Authorizes the Secretary to waive such requirement in the national security interest. Makes such requirement inapplicable to U.S. citizens or U.S. lawful resident aliens. Outlines implementation procedures.

  • **Army Regulation 190-8, in part: “b. A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war, or concerning whom any doubt of a like nature exists.” This regulation implements, in practice, for the U.S. military (or did, until breached by decree of President Bush in 2002), a specific, legitimate source of “law of war” authority under the U.S. Constitution: i.e., Article 5 of the Senate-ratified 1949 Geneva Convention relative to the treatment of POWs (Convention III). In the same way, the Uniform Code of Military Justice enacted by Congress – in place of the Articles of War – implements, in practice, many of the other legitimate sources of law-of-nations/“law-of-war” authority that empowers government actors, under the ratified (and thus supreme U.S. law) 1949 Geneva Convention treaties. – pow wow

(Sec. 1033) Prohibits FY2012 DOD funds from being used to transfer any individual detained at Naval Station, Guantanamo Bay, Cuba (Guantanamo) to the custody or control of that individual’s country of origin, other foreign country, or foreign entity unless the Secretary [of Defense] makes a specified certification to Congress, including that the transferee country or entity is not a state sponsor of terrorism or terrorist organization and has agreed to ensure that the individual cannot take action to threaten the United States or its citizens or allies in the future. Prohibits any such transfer if there is a confirmed case of an individual who was transferred to a foreign country and subsequently engaged in terrorist activity. Authorizes the waiver of such prohibition in the national security interest.

(Sec. 1034) Prohibits FY2012 funds from being used to construct or modify any facility in the United States or its territories or possessions to house any individual detained at Guantanamo for purposes of detention or imprisonment by DOD, unless authorized by Congress. Provides an exception.

(Sec. 1035) Directs the Secretary to submit to the defense and intelligence committees procedures for implementing the periodic Guantanamo detainee review process required under Executive Order.

  • Which procedures, however, as the enacted law now states in black and white, “shall” “(1) clarify that the purpose of the periodic review process is not to determine the legality of any detainee’s law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States;” (Just possibly because it’s pretty much by definition a war crime – a “grave breach” of the Geneva Conventions – for the U.S. to have shipped non-combatants to Guantanamo…; we begin now to see why a colluding Congress will only discuss these matters behind closed doors.) – pow wow
    [See the Implementing Guidelines PDF released in early May, 2012.]

(Sec. 1036) Directs the Secretary to submit to such committees: (1) procedures for determining the status of [the already-deemed (somehow…, still without benefit of AR 190-8 minimal due process, in open defiance of the unenforced “law of war” language) unprivileged enemy belligerent] persons detained pursuant to the Authorization for Use of Military Force, and (2) any modifications to such procedures.

  • “…for purposes of section 1031.” Meaning that this section also covers military prisoners beyond Guantanamo (at our off-shore Devil’s Islands).  But see this mile-wide exception that swallows the rule for the entire prison population of Guantanamo, as passed into law in the final version of H.R. 1540 (Section 1024): “(c) Applicability- The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court.”  An exception that – thanks to the 2008 Anthony Kennedy-authored Boumediene decision, which belatedly began to police the separation of powers – now encompasses all Guantanamo prisoner “persons.”  [If only nominally so, due to the D.C. Circuit’s deliberate undermining of Boumediene’s habeas provisions, in its ongoing effort to replace the presumption of innocence for the accused, with the “presumption of regularity” for the assertions of government-agent accusers.]  This Guantanamo exception does not appear to have been included in the version of the law passed by the Senate on December 1, 2011. – pow wow
  • (4/22 Update) On April 5, 2012, as Daphne Eviatar of Human Rights First noted in an April 18th analysis, “[T]he Defense Department quietly sent a report to Congress indicating how it intends to implement” this section (Sec. 1024) of the 2012 NDAA, for non-Guantanamo prisoners in U.S. military custody. As Daphne’s post indicates, under the new DOD regulation (and in stark contrast and conflict with still-on-the-books Army Regulation 190-8), the first status determination review by a military judge will be permitted to be postponed for three years after the foreign prisoner comes, unimpeded by lack of lawful due process/review or authority, into U.S. military custody. This military judge “review” is a crude Executive Branch-operated approximation of the ongoing, glacially-slow, government-burden-shifting Guantanamo habeas corpus hearing process in the D.C. District & Circuit federal courts – which was finally instituted and conducted as a mistake-remedying solution years after the established fact of military incarceration of foreigners who’d been denied due process and the law-of-war’s default POW status and treatment.  Thus the new DOD NDAA regulation will, in practice, ask a U.S. military judge to decide whether or not he must reverse a decision previously made by a U.S. military commander, and order a foreign citizen released after three years of non-POW detention in a U.S. military prison, in this case because belatedly determined not to be detainable under the terms of Section 1021 of the 2012 NDAA (Sec. 1031 of the Senate bill). [With “international law” and all that jazz, including Third Geneva Convention Article 5’s due process requirements and default POW treatment of military prisoners until a neutral status determination/review is made, having been dispensed with by the U.S. Congress & President (implicitly by the former, explicitly by the latter, beginning with President G.W. Bush).]  As Daphne concludes: “The Obama administration had an opportunity to make clear that it takes due process rights and international law seriously [unlike the U.S. Congress], and that, as the war in Afghanistan winds down, it plans to bring indefinite military detention without meaningful review, charge, or trial to an end. It just passed up that opportunity.” – pow wow

(Sec. 1037) Allows a guilty plea as part of a pre-trial agreement in capital offense trials by military commission.

These are the seven incumbent Senators who resisted peer pressure, heeded their consciences, and honored the Constitution by voting No on passage of the above language in S. 1867 on 12/1/2011 (the same seven, joined by six more Senators, also voted No 12/15 on the final Conference Report version):

Tom Coburn (R-OK), Tom Harkin (D-IA), Mike Lee (R-UT), Jeff Merkley (D-OR), Rand Paul (R-KY),  Bernie Sanders (I-VT), & Ron Wyden (D-OR).

Having been left to his own devices by his Caucus colleagues, and with oversight of the Armed Services a thing of the past in his committee, Carl Levin’s made the most of it, quickly picking up where he and the Senate left off last spring, in refusing to respect or honor the Constitutionally-mandated process for taking this nation to war. And, before that, in sneaking the Military Commissions Act of 2009 through in the huge FY 2010 Defense Authorization Act (which first passed the Senate, as S. 1391, by a vote of 87-7, and prompted my first FDL reader-diary, in July, 2009, entitled “Senators who lie, Senators who let them”). Two years later, and still the vast majority of incumbent United States Senators, perhaps especially those who share Levin’s Party membership, are incapable of challenging, or are too cowardly to challenge, Levin’s misrepresentations and calculating, back-room sleights-of-hand about domestic and international law – as he, with partners from both Parties, continues to use the power of his legislative office to steadily institutionalize an ever more-powerful, unchecked, and unaccountable presidency.

Very much related to the new, D.C. Circuit-parroting provisions of the 2012 NDAA legislation is the following excerpt (which I trust is within fair use limits, because of the comprehensive length of the original), from an extremely valuable and timely 117-page review of the origins and implementation of the writ of habeas corpus, and its two suspensions, in this nation, which was just published by the Harvard Law Review. It’s an impressive example of the sort of scholarship that should have preceded, but obviously didn’t, the evidently-rushed, end-of-term 2004 Supreme Court opinion in Hamdi (an opinion cited repeatedly by Levin – see below – to justify his NDAA detainee provisions), which makes excellent use of the available accounts of contemporaneous Congressional debates. [Hamdi’s oral argument audio is here; in this diary I transcribed a key portion of that argument.] Read the rest of this entry »

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Senate Democrats Overturn Parliamentarian & Precedent (Oct. 6th) To Impede Floor Amending & Further Entrench Supermajority Cloture

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link. [On January 31, 2012, long-time Senate Parliamentarian Alan S. Frumin retired. Frumin had served in that position since 1987, except for six years (1995-2001) when Robert Dove was reappointed Senate Parliamentarian. One month after Frumin’s retirement, House Parliamentarian John V. Sullivan announced his retirement, effective March 31, 2012.]

Compounding a track record of irresponsible and dishonorable conduct, and historic levels of public disapproval, there’s a disturbing trend accelerating in the Senate, which is further centralizing the power of our representatives in the hands of the few among them who control the two private, hierarchical, corporate-profit-funded Party organizations. A trend that is evidently designed to enable Party bosses to increasingly dictate, in private, the details and the outcome of all important legislation in the Senate.

Those, now led by Harry Reid, who wield that top-heavy power – courtesy of the public and private abdication of their Senatorial responsibilities by Party Caucus members – are working hard to further consolidate the power that Senators have already ceded to them to shut down, at will, the daily floor business of the Senate. [Via, in particular, the unchallenged – as out of order – “Fake Quorum Call” that functionally recesses the “in session” Senate each and every day (facilitating the routine replacement of the Senate’s default simple-majority regular order with the Party-preferred, optional supermajority Rule 22 cloture order), in addition to the unanimous daily agreement to “deem expired” the “Morning Hour.”]

Whether through the months of White House-instigated backroom wheeling and dealing between a select few Party members on the debt ceiling and national budget (while the Senate Budget Committee, under Democratic control, was deliberately idled), or in the secretly-conducted (“closed”) multi-day markup of the far-reaching National Defense Authorization bill (2012 NDAA) in Carl Levin’s Armed Services Committee this year, or in the Harry Reid-conceived undemocratic Joint Select Super Committee (which hasn’t held a public business meeting since its first brief organizational meeting on September 8th), most Senators, under Democratic Party control, seem focused on one primary objective: to remain out of public view and off the public record while they help their Party leadership to do the dirty work of their campaign contributors – which, in the case of the Reid-led Democrats (plus Bernie Sanders and Joseph Lieberman) at present, still means regularly taking dictation from the President. [Never mind all that pretty, abstract talk about the vital role of the “separation of powers” that Supreme Court Justices Antonin Scalia and Stephen Breyer waxed eloquent about before the Senate Judiciary Committee on Wednesday.]

The more despised these tactics become, the more the Senate Democrats, under Reid, seem to double down on their backroom behavior and its practiced deceit, and on their public efforts to avoid accountability, including by blocking so-called “tough” votes by abusing the powerful motion “to table” – which allows them to cast roll call votes, with no debate, to kill a measure without formally considering it on its merits, pro or con. [10/31 addition for the record: Even as the members of the Joint Select Super Committee (linked site removed by 2/2012) disgracefully continue to ‘gather’ in private for off-the-record ‘conversations’ – while refusing to convene any public meetings or to engage in any public deliberation since the committee’s first and only public meeting on 9/8 (which preceded several limited public “hearings”) – sometime between October 7 and October 21, 2011, the Joint Committee abruptly changed, apparently without notice, the domain name of its official website, and fails even to refer traffic that finds its brand-new but already-defunct original website (linked site subsequently removed by 2/2012) to the current site (unchanged except for the site’s name; and, by 2/2012, also removed entirely).]

Knowing that the media (similarly driven by a corporate profit-focused agenda) and Party-aligned writers and bloggers are unlikely to accurately explain, undistorted by self-serving Party spin, the latest ugly example of this undemocratic, power-centralizing trend in the Senate, this is my Senate-aligned, as opposed to Party-aligned, account of the overturning of existing Senate precedent (related to a rarely-invoked motion to suspend the rules) that I watched Senate Democrats quickly fall into line to support yesterday evening, October 6, 2011 – a vote, held without any public debate, that those Senators voluntarily cast to reduce their own power as individual Senators to publicly create and revise federal legislation on the Senate floor in future.

I happened to tune in C-SPAN2 Thursday evening at about 6:44 p.m. Eastern, to see what further damage the Senate had managed to do this week (to their institution, if not to their country), knowing that, as usual (and despite having just returned from a week off), by then Senators would be attempting to flee D.C. for their long weekend (made longer this weekend by Yom Kippur and Columbus Day).

I’d earlier heard, via C-SPAN, that President Obama had summoned his Democratic Senate subjects (Harry Reid, Dick Durbin, Chuck Schumer, and Patty Murray) to the White House for a 5:30 p.m. meeting yesterday, presumably to review presidential re-election campaign strategy as it relates to legislation written and ordered to pass the Senate by the White House (see: the American Jobs Act, whose Reid-revised text, filed as S. 1660, is not yet available at the Government Printing Office, though the Senate will be voting on a cloture motion to proceed to the bill Tuesday evening, as arranged just before the Senate adjourned for the weekend at 10:00 p.m. Thursday). So I expected that I might see Harry Reid attempting to obediently execute the President’s will on the Senate floor, post-meeting.

When I tuned in, a vote was in progress, but C-SPAN was unable to describe the vote beyond the fact that it was a “procedural vote” on the pending currency “misalignment” bill (aimed at China, and written/sponsored by Chuck Schumer, Sherrod Brown and Lindsey Graham). Given the bill’s posture (post-cloture, after a Democratic cloture motion had passed, with 62 votes, earlier in the day), a vote to require the attendance of Senators, because (as usual) a Constitutional quorum was not present in the Chamber, seemed the most logical explanation for the roll call. Except that the Party-line vote was the reverse of the typical attendance vote (Republicans were voting Aye, Democrats were voting No).

I waited and watched, and soon noticed that some serious Democratic arm-twisting was taking place in the well of the Chamber. The reason for that arm-twisting became quite clear, when the vote concluded at 7:22 p.m., and (as soon as Democrats Reid, Udall of NM, Durbin and others stopped blocking them by refusing consent to lift a Reid-imposed Fake Quorum Call) a couple of Republican Senators (Bob Corker of TN and Roger Wicker of MS) thankfully stood up to challenge and protest with integrity what had just taken place (their facial expressions and tones of voice speaking volumes).

Here’s Senator Corker:

The PRESIDING OFFICER. The Senator from Tennessee.

Mr. CORKER. Mr. President, thank you for recognizing me.

I really do not want to speak. Here is what I want to happen. I think Members on both sides of the aisle believe this institution has degraded into a place that is no longer a place of any deliberation at all. I would like for you [meaning Harry Reid] and the minority leader to explain to us so that we have one story here in public as to what has happened this week to lead us to the place that we are. That is all I am asking. That is all I want to know. Explain how the greatest deliberative body, on a bill that many would say was a messaging bill in the first place, ended up having no amendments, and we are in this place that we are right now. I would just like to understand that.

Here’s Senator Wicker: Read the rest of this entry »

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Former Rep. Mickey Edwards and Incumbent Sen. Mike Lee: Have Confidence In The People; Don’t Fear & Bypass Their Congress

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

A former member of the United States House of Representatives:

On the day I was sworn in as a member of Congress, all of us “newbies”—including Al Gore, Dick Gephardt, Dan Quayle, David Stockman, and Jim Leach—were a single band. But moments after taking the oath of office, we were divided into rival teams: first came the vote to elect a new speaker, then to adopt House rules written by the majority, then to consider the membership of committees, with party ratios decided by the majority. From that moment on, during the 16 years I served in Congress, and every day since my last term ended, I have seen the United States Congress as it actually functions, not as a gathering of America’s chosen leaders to confront, together, the problems we face, but as competing armies—on the floor, in committees, in subcommittees—determined to dominate or destroy.

Sound familiar?

United States Capitol photo by wallyg at

The U.S. Capitol, seat of our Legislative Branch of government

That’s Mickey Edwards of Oklahama speaking, a Republican with experience in Party leadership, who left Congress in 1993. He’s done us a great service by honestly recounting his insider experiences in Congress – something we too-rarely see – to try to bring genuine reform to that institution. Edwards is perceptively and courageously focusing, of necessity, on ending the money-driven Party vs. Party wars that have been allowed to overrun the place. As ‘cmaukonen’ first noted here, Edwards has just written a piece for The Atlantic, that I highly recommend, entitled How to Turn Republicans and Democrats Into Americans; An insider’s six-step plan to fix Congress, from which the above excerpt is taken.

Those who are concerned about our increasingly-unchecked presidency would do well to consider one major benefit of diluting the power of Party in Congress as advocated by Edwards: Read the rest of this entry »

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The Invaluable Attribute of Independence in Senate Incumbents in an Era of Top-down Backroom Control of Congress by Party & President

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

Freshman Senator Rand Paul of Kentucky, speaking to Anderson Cooper of CNN, on Friday, May 20, 2011:

Senator Rand Paul: “We go week after week in the Senate and do nothing. I feel like sometimes I should return my check because I go up, they do no votes and no debate. Look at this horrendous debt crisis – we don’t debate that either.”

Anderson Cooper: “Really, you feel like that? You feel like you’re not doing anything there?”

Paul: “Yes. I feel… Absolutely. We go up week to week and there’s no debate in Congress. No debate in the Senate. We sit idly by. Some weeks we vote on two-three non-controversial judges and we go back home. It, really…”

Cooper: “Why is that?”

Paul: “I’m trying to get a vote on Libya. They say they don’t have time. I was told, when I wanted to bring up my resolution on Libya – which I did force them to [for, literally, ten minutes], but I had to kinda capture the floor…”

Cooper: “It got tabled like 90-10…”

Paul: “Yeah, and they weren’t too happy with me because I used some parliamentary procedures to gain access to the floor, and they came running down to the floor. They were apoplectic that I had taken over the floor, and the thing is is that we should be having these debates on the floor – they don’t want to have any debate. I’m asking right now to vote on Libya – I have a resolution saying we’re in violation of the War Powers Act. It’s hard for me to get the floor unless I somehow sneak on the floor when no one’s looking to try to get a vote. Why would we not want to debate great Constitutional questions? When I ran for office, that’s what I thought – there will be great and momentous debates on the floor. We don’t have any because they prevent the debates from ever even beginning.

Cooper: “Senator Rand Paul, appreciate your coming on. Thank you.”

Paul: “Thank you.”

David A. Fahrenthold, providing a rare and welcome account of Senate floor proceedings in the Washington Post, on June 9, 2011:

In the U.S. Senate, this is what nothing sounds like.

“Mr. Akaka”

At 9:36 a.m. on Thursday [6/9], a clerk with a practiced monotone read aloud the name of Sen. Daniel K. Akaka (D-Hawaii). The chamber was nearly deserted. The senator wasn’t there. Not that she was really looking for him.

Instead, the clerk was beginning one of the Capitol’s most arcane rituals: the slow-motion roll calls that the Senate uses to bide time.

These procedures, called “quorum calls,” usually serve no other purpose than to fill up empty minutes on the Senate floor. They are so boring, so quiet that C-SPAN adds in classical music: otherwise, viewers might think their TV was broken.

This year–even as Washington lurches closer to a debt crisis–the Senate has spent a historic amount of time performing this time-killing ritual. Quorum calls have taken up about a third of its time since January, according to C-SPAN statistics: more than 17 eight-hour days’ worth of dead air.


“It’s not even gridlock. It’s worse than that,” said Allan Lichtman, a history professor at American University who once ran for the Senate himself as a Democrat. He said “gridlock” implies that somebody was at least trying to get legislation passed.

Instead, he said, this year “they’re not even trying to get something done.”

To an outsider, a quorum call looks like a serious–if dull–piece of congressional business. A clerk reads out senators’ names slowly, sometimes [usually] waiting 10 minutes or more between them [and rarely getting beyond the first few names].

But it’s usually a sham. The senators aren’t coming. Nobody expects them to. The ritual is a reaction to what the chamber has become: a very fancy place that senators, often, are too busy to visit.

This is [part of] what happened: Decades ago, senators didn’t have offices. They spent their days at their desks on the Senate floor. So clerks really needed to call the roll to see if a majority was ready for business.

Now, senators spend much of their time in committee rooms, offices and elsewhere. If no big vote is on the horizon, often nothing at all is happening on the Senate floor.

But Senate rules don’t allow for nothing to happen.


After 12 minutes, Sen. Mark R. Warner (D-Va.) showed up. “I ask [unanimous consent] that the proceedings of the quorum be dispensed with,” he said. That’s how quorum calls usually end: The next senator who wants to speak asks for a halt.

After Warner gave a brief speech on the value of federal workers, it happened again. “Mr. Akaka,” the clerk said. Twenty-one minutes of silence.

At a deli in the Senate’s basement, it was clear this was wearing on people. One Capitol employee asked another: Where are you working today? “Senate chamber,” his buddy replied. “Shoot myself in the head.”

These sham roll calls have been a feature of Senate debate for decades, but this year has been special: According to C-SPAN, the Senate has spent more than 32 percent of its time in quorum calls. That’s more than in any comparable period dating to 1997.

The main reason seems to be the bare-bones agenda pursued by the Senate’s Democratic leaders: There have been just 87 roll-call votes so far, compared with 205 in the same period during 2009. Senate Democrats have not even proposed an official budget; the strategy appears to be to shield vulnerable incumbents from controversial votes on spending.

“Why are we here?” asked Sen. Tom Coburn (R-Okla.), a critic of the large number of quorum calls this year. The Senate is not operating the way it was designed, because politicians don’t want to be on record.”

A crucial point that’s summarized by Fahrenthold’s “But Senate rules don’t allow for nothing to happen” is that, in the absence of that “slow-motion” roll call that I call the Fake Quorum Call – which never comes to an end on its own, and may only be lifted by unanimous consent or by the Majority Leader, unless and until some Senator has the guts to challenge the Party status quo by asking that the Senate’s parliamentary rules be enforced – or of any actual floor debate, the Presiding Officer is required under the rules and precedents of the Senate to put the pending question (whatever it is – a motion to proceed, an amendment, a bill, a nomination) to a simple-majority vote of the Senate:

“When a question is pending, and a Senator addressing the Chair concludes his address to the question, and no one immediately seeks recognition, it is the duty of the Chair to state the pending question to the Senate.”
– Riddick’s Senate Procedure

Which is a fact that should help illuminate how insidious (and wholly unnecessary) it is that the current Party majority in the Senate now routinely abuses the optional Rule XXII cloture motion process, in the absence of obstructive floor debate – thereby preventing routine Senate debate and amendment (the transaction of Senate “business” without the need for unanimous consent), while simultaneously imposing supermajority thresholds for the adoption of legislation and confirmation of nominees in the Senate. The only reason for the current Democratic majority to avoid the use of the default simple-majority Senate rules, given the absence of actual debating filibusters in the Senate for almost two decades now – via their resort to the optional supermajority rule and procedure (which was created in 1917 to overcome rare obstructive floor debate) – is to avoid public debate and unpredictable democratic legislating, conducted in the open by the representatives of the people. [A reason that routinely translates into “Republican filibusters” in Democratic Party-speak, as embraced and amplified by Party hacks and widespread journalistic malpractice.]

So, although David Fahrenthold (and certainly most of his colleagues) may not realize it, that “slow-motion” Senate roll call that never actually determines whether a Constitutional quorum is present (in the empty Senate Chamber) is doing a lot more than “biding the time” of the Senate, and it’s seriously damaging the institution. The constant imposition of the Fake Quorum Call, unchallenged by any Senator, and deployed in lieu of a simple Senate recess – which would make the Senate’s inaction plain for all to see, and which the Senate routinely agrees to every Tuesday, at midday, while members attend their private Party luncheons – creates the need for unanimous consent simply to conduct ordinary business on the Senate floor. That vests inordinate power in a few hands at the top of each Party organization, and those Party bosses, in turn, regularly try to privately “deal” in the backrooms for a unanimous way to the floor through their self-imposed Fake Quorum Call blockade of the Senate floor.

It’s the increasing imbalance of power between the three branches of government brought home to the Senate, where the elected power-holders in the institution allow others to wield their power for them. [And no, the absent Senators aren’t all off conscientiously attending committee hearings that conflict with Senate floor sessions (despite a Senate rule, for good reason, precluding that, which must be waived daily) – as the appalling absentee rate at important Senate committee hearings repeatedly demonstrates.] Read the rest of this entry »

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The Constitution, The War Powers Resolution, & Libya: Rand Paul Defends Congressional Authority, Carl Levin Cedes It

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link. In Comment 51 of that thread, I detail how the War Powers Resolution’s Constitutionally-derived limits of “national emergency” defensive “hostilities” [undertaken, and/or reported as specified in 50 USC § 1543(a)(1)] – which trigger the 60-day clock of the War Powers Resolution (WPR) – were simply ignored in the president’s letter to Congress about his war on Libya. That sort of bad faith presidential evasion of the War Powers Resolution should be recognized by Members of Congress for what it is, and be challenged, until an overdue rewrite or revocation of the WPR is in place. Comment 51 also includes an excerpt from a paper explaining why “what the President constitutionally needs from the United States Congress, he cannot get from the United Nations Security Council.”

United States Constitution, Article I, Section 8:

The Congress shall have power . . .

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

Professor Jules Lobel, in prepared testimony testimony to an April, 2008 House Foreign Affairs subcommittee House Foreign Affairs subcommittee:

The Article I congressional power to declare war is not limited to the formal power of issuing a declaration, nor to authorizing full-scale wars, but was intended to give Congress the power to decide whether the United States should initiate any offensive military hostilities, however big or little, or for whatever purposes.9

[Footnote 9: See, e.g., Bas v. Tingy, 4 U.S. 33, 35-36 4 Dall. 37, 40 (1800) (Washington J.) (“every contention by force, between two nations, in external matters, under the authority of their respective governments, is not only war, but public war.”).]

Moreover, to the extent there is any doubt as to the meaning of the Declare War Clause, the clause immediately following it gives Congress the power to “grant letters of Marque and Reprisal.” In the 18th century, Letters of Marque and Reprisal had two meanings. The first, now obsolete, referred to authorization given to private merchantmen to fight the enemy. Second, and still relevant today, letters of marque and reprisal referred to imperfect wars, special wars, limited wars, reprisals — all of which constituted hostilities that were something less than full-scale war.10 For example, both Alexander Hamilton and Secretary of War James McHenry advised President John Adams in 1798 that any use of American naval force beyond repelling attack on the nation’s seacoast, armed vessels or commerce within American waters, “comes within the sphere of reprisals and . . . requires the explicit sanction of that branch of the government which is alone constitutionally authorized to grant letters of marque and reprisal.”11

Professor Michael Ramsey, writing at on March 23, 2011:

Does the Libya intervention amount to a “war” in constitutional terms? Samuel Johnson’s influential 18th century dictionary defined “war” broadly as “the exercise of violence under sovereign command, against withstanders.” International law writers of the time expressed similarly expansive definitions. Although there are surely borderline cases, our use of force against Libya easily qualifies: the opponent is the Libya government, and our objective is to use “violence under sovereign command” to force that government to change course.


Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities. John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.” Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way. Vattel wrote: “When one nation takes up arms against another, she from that moment declares herself an enemy to all individuals of the latter.” Johnson’s dictionary gave as one definition of “declare” to “shew in open view” – which, applied to warfare, would obviously encompass military attacks. (References are found in my Chicago Law Review article, Part III; for a more comprehensive account, see this outstanding article by Saikrishna Prakash). Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement; Congress’ Article I, Section 8 power is not narrowly about issuing formal announcements, but broadly about authorizing the sorts of actions that begin war.


If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks.

And the Constitution’s drafters expressly described the clause as designed to exclude presidential war-initiation power. James Wilson told the Pennsylvania ratifying convention: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

As a result, the founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.”

War powers expert Louis Fisher, in a 1998 paper co-authored with David Gray Adler:

The meaning of the war clause was thus settled at the dawn of the republic. The word “declare” enjoyed a settled understanding and an established usage. As early as 1552, the verb “declare” had become synonymous with the verb “commence.” They both mean the initiation of hostilities.31 This was the established usage in international law as well as in England, where the terms declare war and make war were used interchangeably.

This practice was familiar to the Framers. As Chancellor James Kent of New York, one of the leading jurists of the founding period, stated: “As war cannot lawfully be commenced on the part of the United States, without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.” While Kent interpreted “declare” to mean “commence,” he did not assert that the Constitution requires a congressional declaration of war before hostilities could be lawfully commenced, but merely that it be initiated by Congress. What is “essential,” according to Kent, is “that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprize neutral nations of the fact.”32 Thus, Congress need not declare war. All that is required under American law is a joint resolution or an explicit congressional authorization of the use of military force against a named adversary.

Louis Fisher in written testimony for a January, 2007 Senate Judiciary Committee hearing:

The breadth of congressional power is evident simply by looking at the text of the Constitution and comparing Article I to Article II. The powers expressly stated give Congress the predominant role in matters of war. However, this purely textual reading misses what the American framers did, why they did it, and how they broke with the reigning British models of executive power. Their study of history led them to place in Congress the sole power to take the country from a state of peace to a state of war. They left with the President, in his capacity as Commander in Chief, certain defensive powers to “repel sudden attacks.”


The framers carefully studied this monarchical model and repudiated it in its entirety. Not a single one of Blackstone’s prerogatives was granted to the President. They are either assigned entirely to Congress (declare war, issue letters of marque and reprisal, raise and regulate fleets and armies) or shared between the Senate and the President (appointing ambassadors and making treaties). The rejection of the British and monarchical models could not have been more sweeping.

With that as background, here’s what the United States Senator who presently chairs the powerful Armed Services Committee read aloud, from prepared opening remarks for a March 8, 2011 full committee hearing March 8, 2011 full committee hearing [only a placeholder page for that hearing remains on the SASC website since the site’s makeover in 2012 or 2013] convened “To receive testimony on the Department of the Navy in review of the Defense Authorization Request for Fiscal Year 2012 and the Future Years Defense Program” (informally, the “Navy posture hearing”) – at about 27 minutes into the recording of the hearing, a few minutes into his opening statement:
Read the rest of this entry »

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(Debating) Filibuster vs. (Optional) Cloture: The Self-Inflicted Catch-22 in Senate Rule XXII

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

From Democracy Means Fair Employment Practices Pamphlet No. 198, CIO Education Department, October 1951. (source: Tobias Higbie via Flickr)

This diary is intended – with limited technical detail, so as not to lose everyone in the weeds – to be a guidepost for deciphering this week’s (scheduled) public discussions, and reporting about those discussions, in the Senate – beginning today, Tuesday, January 25th – about how that federal legislative body operates, or should operate. [The 112th Senate met for the first time on January 5, 2011, and then “recessed” until 10 a.m. today – which, under its Standing Rules and precedents, continues the “legislative day” of the Senate’s first session into today’s session, and potentially future sessions, until the Senate formally “adjourns.” As a related aside, I question whether “Jefferson’s Manual” – guidance for a legislative body without any of its own rules – likewise provides that multiple “recessed” calendar day sessions of the Senate, separated by weeks, count as one “legislative day.”]

Included below are a number of facts, about existing Senate rules and practices, which starkly contradict the conventional wisdom generated by reflexively-partisan Senators themselves – as uncritically accepted and repeated by the national media – about what existing Senate rules do and don’t “require.” As most of us recognize, members of the American media today who have relatively easy access to Senators, and to other powerful national figures, rarely meaningfully challenge those privileged to hold such power. That evidently goes double when simplistic, widespread partisan myths have come to predominate and obscure the inconvenient, unspoken truths about the non-partisan institution in which United States Senators serve.

This is one citizen’s informed attempt to publicly state those consequential, unspoken truths, however much they may continue to be studiously ignored by the wielders and courtiers of power in Washington, D.C. – people who are evidently very driven to protect abusive Party practice and privilege, even at the expense of the public, self-governing institution of our federal Senate itself. This diary mostly summarizes; my December diary about Congress focused at length on the alarming fundamentals of its operation today, in both the House and Senate, and further details the dramatic difference between a debating “filibuster,” under the Senate’s simple-majority regular order, and an optional “cloture motion” that seeks to supplant that order with a supermajority voting threshold; and – with regard to the undiminished ability today of a Senate majority, under existing Senate rules, to force the real (debating) filibuster – this technical comment capped an in-depth examination of Senate rules and precedents that selise and I conducted last year in three FDL working diaries.

There have been many misleading claims made, or dishonorably implied, about the Senate and its rules by Senators themselves in recent years, under both Republican (Bill Frist) and, especially, Democratic (Harry Reid) majorities, so it’s difficult to know which myth to address first, or at all. What follows, therefore, in brown text, more or less in order of their appearance, are three of what I consider to be the most prevalent and damaging myths, with the facts, in red and black text, that refute them – facts reported without fear of or favor to any political Party. [As I’ve repeatedly said, any evidence to the contrary about my assertions of fact – anything that I’ve overlooked or misstated – is welcome and invited.]
Read the rest of this entry »

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"Just Imagine"…Unchallenged, Government Tells Supreme Court While Torturing: "The United States Is Gonna Honor Its Treaty Obligations"

As originally posted in the reader-diary section of; the post’s 2011 comment thread is available at that link.

David Cornwell (British author John le Carré) speaking in a March, 2002 interview:

The Cold War was fought under a constant mystery: How much can we do in defense of a free and decent society and remain a free and decent society that is worth defending? So there was always a very great unease, particularly in the secret world, about the methods with which we protected our virtue, as we saw it.


When you’ve got a preconception, you can always decorate it with slightly bent intelligence.

On this ninth anniversary of the opening of the notorious American prison camp built on a U.S. Navy Base at Guantanamo Bay, Cuba to hold, and, above all, to interrogate, foreigners claimed to be law of war combatants, I’ve transcribed below part of a recent interview of an English-speaking detainee – a citizen of Britain – who was transported by cargo plane from Afghanistan to Guantanamo’s Camp X-Ray in February, 2002. [His two British companions, Shafiq Rasul and Asif Iqbal – they’re collectively known as the “Tipton Three” – were flown to Cuba a month earlier, on January 13, 2002, two days after the prison camp opened nine years ago today, 1/11/11.]

That former detainee is Ruhal Ahmed, and the transcribed portion of his joint interview with Shafiq Rasul (made especially poignant and compelling by the presence of Ahmed’s young daughter), which was conducted in East London by British writer Andy Worthington last September 18th – nine years to the day after President Bush signed the never-rescinded Congressional Authorization for Use of Military Force (war) against the perpetrators of 9/11/2001 – may be viewed here (starting about five minutes in; don’t miss Shafiq Rasul’s account in the first two minutes of the clip).

2010 screen-captured photo of former Guantanamo prisoner Ruhal Ahmed

Ruhal Ahmed and daughter in London on September 18, 2010

Interspersed with my transcript of Ahmed’s account of his pre-April, 2004 Guantanamo experiences, is my transcription of an exchange that took place in open court in the United States Supreme Court, on April 28, 2004, as two of the justices questioned the appointed representative of the U.S. government at the time, Deputy Solicitor General Paul Clement of the Executive Branch’s Department of Justice. Clement was resisting, in the name of the President and Congress and the American people, the efforts of another wartime detainee – U.S./Saudi citizen Yaser Hamdi – to have his claim, of being unlawfully detained as an armed-conflict combatant, heard and adjudicated by a neutral decision-maker in our independent Judicial Branch of government, or elsewhere.

Ruhal Ahmed and his two companions were seized by Northern Alliance forces in northern Afghanistan (where they’d been touring the area prior to attending the wedding of Iqbal in Pakistan, apparently partly in search of “dope,” but without even a tangential connection to any armed conflict, if one can prove a negative) in late November, 2001, were soon transferred to the custody of American Special Forces troops in Afghanistan, and then forcibly flown in January and February, 2002 to Guantanamo Bay, Cuba, where they were held, abused, and interrogated, until released to British custody – without explanation, apology, or reparations from the United States President or Congress then or since – in March, 2004.

Ahmed’s appallingly-abusive treatment and torture, while in American military custody in Afghanistan and Guantanamo, were detailed at length in a joint public account by the three British friends on July 26, 2004, as part of The Guantánamo Testimonials Project of the University of California at Davis’s Center for the Study of Human Rights in the Americas (CSHRA). That laudable academic project has been voluntarily compiling, during the abdication of Congressional oversight and DOJ enforcement of the law against powerful government actors, the evidence of crimes committed by agents of our federal government, that other members of our government should have been compiling and using to impeach and prosecute, years ago.

Some excerpts from that Guantánamo Testimonials Project written account:

80. During the first several weeks [in Guantanamo] the American interrogations with all three [men] consisted of pressing them to ‘just say you’re a fighter’. Asif [Iqbal] was told ‘if you just say you’re a fighter, because of the Geneva Convention when the war is over you’ll get sent back to England’. [Ruhal Ahmed] was told ‘just say you’re a fighter and you’ll go home’. He was told ‘you’ve come to kill American and British soldiers, coalition forces’. They talked about ‘allied forces’. They referred to the Northern Alliance as being the same as ‘allied forces’.


98. The interrogators very rarely introduced themselves. Occasionally they lied about the organizations they worked for and all three men believe the names they gave were almost always false. This misinformation was quite common. As an example, on one occasion [Ruhal Ahmed] told an investigator that one of her colleagues from the FBI had kept him in the interrogation room for 18 hours (this was in Camp Delta). He described the interrogator. The person to whom he was complaining told him that he knew the woman and that she was not from the FBI but from Military Intelligence.

99. In relation to the interrogators, they generally changed. It was very rare to have the same interrogator on a regular basis. Shafiq [Rasul] says ‘I only ever saw the same interrogator on three occasions at the most’.

100. The organizations that were involved in the interrogations included the CIA, FBI, DOD, MI5, NCI (Navy Crime Investigators), NSA, Army CID.
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