Tag Archives: Civil-Military relations

An indictment by another name.

Posted on by
3

After I noticed that my name had been taken yet again in vain by my friendly antagonist Tom Hunter over at No Minister, I went over to see what the fuss was about. Nothing much, but then I discovered a post about the Operation Burnham Inquiry by Psycho Milt. I made a comment (now several comments) in response, then decided to edit the original comment, add a few things and make it a short post here that outlines what to me is the bottom line of that report. Here it is:

As the old saying goes, “the original sin was bad, but the cover up was worse.” Had the NZDF simply come out after the 2010 engagement and said that there were civilian casualties resultant from the “fog of war” in a nighttime SAS operation designed to kill or capture people responsible for attacks on NZDF patrols in Bamiyan that resulted in several NZDF deaths, I bet that the majority of the NZ public would have accepted that war sucks and bad things inadvertently happen. Then, when Jon Stephenson’s first story on Operation Burnham came out it would not have caused such a stir because there would not have been a glaring gap between his account and that of the NZDF (Nicky Hagar got involved later and took primary credit for the book “Hit and Run” although most of it was researched and written by Stephenson–-Hagar never set foot in Afghanistan).

Although the Royal Commission (RC) sugar-coated it, the report is absolutely damning of the SAS and Army leaders of the time (and not the troops on the ground that night, although issues regarding the TAC (Tactical Air Controller) and SAS mission commander’s understanding of the Rules of Engagement (ROE) were not addressed in the public version of the report). The testimony of several officers taken under oath was labeled as not credible by the Commissioners. The RC Report states that no institutional cover-up was at play, but that is laughable in light of what it says about the testimony of most of the senior officials involved. In other words, this was an institutional cover-up by another name, and the name given to the process instead of coverup or whitewash was shoddy records-keeping and miscommunication on top of bad memories. This pushes the onus of responsibility onto individuals rather than the military as an institution. And for those individuals, I guess “incompetent” is a better mark on one’s service record than “liar.”

How those records were lost or mislaid, and whether those bad memories were a product of in-group cohesion or contempt for the process is a matter of conjecture. What is not is that civilians were killed and at least one suspect handed over to Afghan forces to be tortured, both breaches that under international law must be investigated. What is now known is that the possibility of casualties and the transfer of a Taliban suspect to ADF units known for torture was known immediately by the NZDF chain of command and NZ intelligence services attached to them, yet until late in the Inquiry, the NZDF admitted to neither. There is much more by way of deceitful and devious NZDF behaviour, but let’s just come out and say that uniformed officers lied to their civilian superiors for years after the operation and then some lied under oath at the Inquiry. The National government at the time Operation Burnham took place and in the years immediately afterwards may not have wanted to hear the truth in any event and so accepted what they were (not) told by the NZDF brass at face value, but the RC was keen to hear the unvarnished details.

It took them several years and $NZ 7 million of taxpayer money to find out. It remains to be seen what the Labour government will do with the RC Report’s findings and recommendations, but one thing is certain: it going to wait until well after the election to do anything. And there is one other irony in all of this. At the same time that the NZDF was engaged in its campaign of obfuscation and deflection regarding the events of 2010, Transparency International gave it very hight marks for command integrity, transparency and accountability. These marks were the average of scores provided by a select group of specifically chosen “experts” on defense and security. I know because I was one of them and I pointedly gave low marks when it came to exactly these three criteria, so can only assume that my scores were discounted when calculating the overall average. But who gave them such high across-the-board scores if it mine were not included, and what were they thinking?

In any event I urge readers to read Chapters 2 and 12 of the Report, which address issues of civilian control of the military and ministerial accountability to Parliament in a Westminster-style democracy. The RC found that the actions of the NZDF leadership (specifically, misleading, stonewalling, whitewashing and misrepresenting what happened to the civilian political leadership and ministers of the day) wilfully undermined both fundamental democratic principles.

Everything else is gloss.

I do not expect that much will change given the delicacy of the report’s language and the fact that all of those responsible for the worst offences are retired (one only resigned three months ago when the draft report came out and his statements were found to be particularly unbelievable to the point of possible perjury). But it is now on official record that the NZDF has a culture of playing loose with the truth and disrespect for the constitutional principles underpinning its role in society. If implemented, perhaps the recommendation to create an independent Inspector General of Defense may help refocus NZDF attention on those principles. We shall see.

No matter what one may think of Hagar and Stephenson, in the end, minor errors and some hyperbole aside, they were vindicated. That is evident in the Report, which states that the book “Hit and Run” performed a valuable public service by exposing some ugly truths about how the NZDF operates, not so much in the field (although there were some issues identified there as well), but in its interaction with the political class and the larger society which it ostensibly serves.

That is the bottom line.

For US civil-military relations, a slippery slope.

Posted on by
24

For a good part of my adult life I have studied civil-military relations. I have studied authoritarian and democratic variants, and I have studied them across countries and regions. I have also worked in and with several US security agencies and have lectured on the theme at a number of military institutions in the US and abroad. It is with that background that I say this:

Trump’s deputising of the military for domestic law enforcement is a slippery slope in US civil-military relations. It is partisan manipulation that risks creating serious institutional rifts within the armed forces as well as between the military and society. The president certainly has the legal authority to do so but he also has the constitutional obligation to do so only as a last recourse when the country is under existential threat. Previous instances of deploying the US military in domestic law enforcement roles may or may not have been in the spirit of the constitution, and the precedent is mixed. Sending the national guard to defend civil rights in the face of state opposition is one thing; sending in them to stop looting and rioting is another. What is happening today is similar but different, and worse.

Using federal troops to disrupt peaceful demonstrations is a violation of the constitutional spirit. Using federal troops employing tear gas, flash-bang grenades and rubber bullets to do so is an abuse of authority. Doing all of that in order to stage a presidential photo opportunity featuring Him flashing a bible outside a damaged church–as the head of what is supposed to be secular democracy–is beyond the constitutional pale.

That is the terrain of personalist, party and bureaucratic authoritarians that use the military as a praetorian guard. In the US the military swears an oath to the constitution, not the president, even if he is the nominal commander-in-chief. It swears to defend the US nation against all enemies “foreign and domestic,’ but not in a selective or partisan way. The military is subordinate to civilian political control but in exchange receives considerable institutional autonomy with regard to operational decision-making. It therefore could and should refuse to deploy force as part of a clearly unnecessary politically charged event and in pursuit of ends that are not commonweal in orientation. 

States can already call up their respective National Guards. As a federal district, the District of Colombia covers patches of federal land interspersed with city and private property. Guardsman from DC can certainly be called up by the president for law enforcement duties. Trump has ordered the mobilisation of these troops but also active duty and ready reserve military police units outside of the DC National Guard. That includes combat units such as the 10th Mountain Division, 1st Infantry Division and the 82nd Airborne Division’s Immediate Response Force. From early in the fray, military intelligence has been providing counter-protest contingency planning information to at least seven National Guard units.

Note that my immediate concern is not about a descent into civil war or the military having to choose sides in such an event. That is something for another day. Here my focus is on the concept and practice of US civil-military relations as an institutional foundation of the nation. If left unchecked or encouraged, Trump’s actions will tear at the institutional and ideological fabric of the armed forces and thereby undermine the implicit contract that lies at the heart of civil-military relations in the US.

That Secretary Esper and JCS Chairman Milley participated in the photo op charade and a subsequent walk-around with the DC Guard, thereby symbolically legitimising its partisan use, demands that they step down. So too should the unit commanders who refused to question the orders coming out of the White House or chain of command, especially those authorising the use of helicopters as crowd control platforms and blunt force against unarmed civilians exercising their First Amendment right. It is one thing for political appointees in civilian departments to bow to the preferences of the president. It is quite another when top military officials do so.

That is why the military risks institutional fracture if it continues to obey Trump’s orders about its deployment in the current context. The rifts could be between “constitutionalists” and “pragmatists” or “partisans.” It could cleave across service branches and/or between officer and enlisted ranks (known as horizontal and vertical cleavages). Ideological cohesion and corporate autonomy could be lost. All of this because there remains a strong virtuous streak in the military that rejects its politicisation for domestic partisan purposes, and yet it coexists with a hyper-partisan leadership and pro-Trump sentiment in the ranks. The constitutionalists need to prevail in any inter-service dispute about their collective future.

To reinforce this message, the time has come for the armed forces command and Congress to prevent an expansion of the US military role in domestic crowd control roles. The institutional integrity at the core of democratic governance depends on it.

The rot at the top.

Posted on by
24

When military leaders cover up and lie to elected civilian authorities, the foundation of democratic civil-military relations is undermined because it is those authorities who are entrusted to hold the military accountable to the public that they mutually serve. But this is only true if civilian political authorities take their responsibilities seriously and accept that when it comes to military operations the policy buck stops with them.

The same is true for intelligence agencies in democracies. While specific operational details remain within the agencies involved, the general policy guidelines for how they conduct those operations, and the responsibility for them, rests with a) the legal framework governing their activities and b) the elected civilian governments that are their overseers at any given point in time. For both the military and intelligence community, this means exchanging corporate or institutional autonomy-that, is, the ability to set internal standards, practices and objectives free from political interference–in return for submission to civilian political authority on broad matters of policy and accountability.

In recent weeks we have discovered, thanks to the Inspector General of Intelligence and Security’s report on NZ involvement in the CIA-operated extraordinary rendition/black site/torture program, that the NZSIS and GCSB received and supplied information that was directly linked to detainees who were subject to torture by the US and other allies in the coalition fighting al-Qaeda and the Taliban. The directors of these agencies at the time claim that their agencies did not know about the program even though they worked hand-in-glove with the CIA in Afghanistan and elsewhere and even though knowledge of the extraordinary rendition/black site program and the use of torture was in the public domain as early as 2004. From what is described in the IGIS report, it appears that NZ intelligence bosses had their own version of “don’t ask, don’t tell” when it comes to what the US was up to. As Richard Woods, former NZSIS director general, is quoted as saying in the IGIS report (I paraphrase here), “do you really expect us to ask the US directly about such things and risk our relationships with it?”

When confronted about this discrepancy by the IGIS the former directors maintained the high-ranking government ministers of the day were privy to all of the sensitive information regarding NZ’s intelligence relationships and that as agency directors they had no authority to engage in moral, ethical or legal judgements about what their allies were doing even if these actions violated NZ and international law–all while maintaining that they knew nothing about unmarked airplanes, black sites, torture and suspects being captured (including by the SAS) and then “disappeared” into the covert operations labyrinth.

That broaches the question as to whether former directors Richard Woods and Warren Tucker are simply lying (former GCSB chief Bruce Ferguson was a late arrival to the events under investigation and inherited his situation from Tucker) and prefer to put NZ intelligence relationships with the CIA ahead of their supposed duties to the NZ government and nation as a whole. Or, did the governments of the day, led by Helen Clark and John Key, know about the extraordinary rendition/black site/torture program and authorised and covered up NZ participation in it? It should be noted that Barack Obama ended the extraordinary rendition/black site/torture program shortly after he assumed presidential office in January 2009, so the bulk of NZ’s involvement with it happened under the 5th Labour government.

With regards to the NZDF, thanks to the book “Hit and Run” by Jon Stephenson with Nicky Hager and the ensuing Royal Commission of Inquiry into Operation Burnham (the subject of the book), we now know that the military brass did not inform (at best) or mislead (at worst) senior government officials about the possibility of civilian deaths in that mission until news of it became public (again, mostly thanks to the work of Mr. Stephenson in his series on NZSAS activities in Afghanistan). The NZDF story constantly changed as more was revealed, and the Inquiry has now found out that a critical NZDF document recognising the possibility of civilian deaths was “lost” in a secure safe for three years and that a register of who opened and closed that safe during that time frame somehow went undiscovered until this week. Former ministers in the Key government, which was in office when the mission was conducted, maintain that they were unaware of the existence of anything that would contradict the original NZDF version of events, which claimed that only “terrorists” were killed.

That raises a profoundly disturbing possibility whichever way the truth falls in each case. On the one hand, it would appear that senior NZ intelligence and military officials do not inform and in fact cover up controversial operations that occur under their watch. The civilian authorities to whom they ostensibly answer to in the division of labour that constitutes the foundations of democratic civil-military/intelligence relations are deliberately left in the dark. This suggests a level of arrogance and sense of imperiousness that is inimical to democratic governance because there is no regard for personal or institutional accountability embedded in their decision-making. They simply do as they see fit and lie about it afterwards.

On the other hand, it is possible that military and intelligence officials respect the concept of civilian political authority and inform governments of the day of everything that they are doing, including when things go wrong or unpleasant compromises are made in the interest of national security. This can be considered to be a variant of the “no surprises” policy in which governments are informed apriori of controversial decisions so as to not be caught off-balance when said decisions become news. If that is the case, then political managers shoulder responsibility for the policy decisions under which the NZ intelligence community and NZDF operate, including taking the blame when things go wrong or uncomfortable facts are revealed about what NZ security forces are doing at home and abroad.

However, it appears that in NZ there is not only a variant of “don’t ask, don’t tell” operating in the intelligence community, but it is attached to a civilian political management approach whose operating premise is “don’t want to know.” That is, civilian political authorities display willful ignorance in an effort to maintain plausible deniability when things go wrong or prove politically fraught. That may be expedient over the short term but abdicates responsibility when it comes to civilian oversight of the military and intelligence community, thereby tacitly encouraging military and spy agency impunity during and after (often lethal) operations.

Coverage of the Royal Commission on Inquiry into Operation Burnham has focused on the supposed incompetence of senior NZDF officers when it came to document security and disclosure. “Incompetence” is the most generous interpretation of what was at play here. “Conspiracy based on deliberate and coordinated lies and misrepresentations authorised from the top” is an alternative interpretation. The questions now are: which of these two interpretations seems more plausible and will anyone be held to real account in any event? Surely, if the government of the day was deliberately lied to or mislead by the NZDF and was not complicit in the coverup, then there is criminal liability involved.

The same goes for the intelligence agency chiefs who say they did not know what their subordinates were doing during the years in which the CIA-operated extraordinary rendition/black site/torture program was running. If they lied to their political masters about what they knew, then there should be consequences for that even if it has taken time to uncover their deception. If the political authorities at the time knew about NZ intelligence community involvement in the program, that should become a matter of public record even if little can be done in terms of retroactively applying punitive sanctions on their behaviour..

Not to put too fine a cynical point on it, but perhaps there is another hand at play in both instances. The IGIS report on NZ involvement with the CIA extraordinary rendition/black site/torture program speaks at length about managerial misadventure in the NZSIS and GCSB and even “naivety” in the discharge of their duties (when was the last time anyone ever heard the word “naive” associated with spy agencies?). The Inquiry into Operation Burnham has heard about “mistakes” and “oversights” on the part of NZDF senior leaders. It would seem that the common denominator in both is incompetence rather than wilful or deliberate circumvention of ethical norms, legal obligations and constitutional responsibilities.

Could it be that “incompetence” is the ultimate “get out of jail” card for public servants found to have failed in the discharge of their basic obligations and responsibilities?