Thursday, September 23, 2010

We're Stronger Than That (III)

Erica Payne says it well:

Consider this: We are the world's only superpower. We have 309 million citizens and control 3.79 million square miles of land. At $14.3 trillion, we have the world's largest economy. We make up two-fifths of the world's military spending. It is virtually impossible for our enemies to beat us physically. Even if by some unimaginable turn of events terrorists were able to destroy every building in the country, the citizens who remained would just move to West Texas, stick a flag in the sand while singing God Bless America at the top of their lungs and start to rebuild. We're just like that, we Americans.

So since you can't destroy the land that is America; in order to destroy us, you must kill the idea that is America - the principles that brought us together in the first place and that bind us now, even when we fall short of realizing them. Our worst enemies don't want our body. They want our soul. Like the devil, the only way they can get it is if we give it to them. Unfortunately, politicians are racing to sign the dotted line.

We do more damage by betraying our founding principles of habeas corpus and the rule of law than can be done by any terrorist attack. President Obama knows this intellectually, though I wish he were doing a better job of acting on it. The GOP, however, is clueless.

But I have faith that we'll make it through, and we'll be stronger still in the future.


  1. Can I be forgiven a rhetorical flourish? Sounds better than "Given a careful study of history, I am confident, though not 100% sure, that..."

  2. Habeas Corpus -- HABEAS CORPUS!!?!

    The misAdministration of Bush The Lesser did away with that quaint notion, YEARS ago:

  3. Re habeas corpus . . .

    I'm just curious, when you saying "our founding principles of habeas corpus," do you think that President Lincoln betrayed these principles when he unilaterally suspended habeas at the outset of the civil war and detained suspected Confederate sympathizers in Maryland to keep that state from seceding? During an armed conflict declared by Congress, such as World War II, should German and Japanese POWs have had the right to file habeas petitions in US courts *during* the war? If so, what do you think would have happened if all 2 million POWs we held through the end of the war had sought habeas relief?

    Of course, it's important not to come up with arbitrary and useless infringements on civil rights, but things are rarely black and white. The GOP often resorts to oversimplifying (i.e., Bush's justification for warrantless wiretapping: "If al Qaeda is calling you, we want to know why"), but the same is true for the other side.

  4. I'm not hugely familiar with the exact circumstances surrounding Lincoln's suspension of habeas corpus, but I don't like arguments that hinge on something being okay in extreme circumstances. Mission creep is a problem.

    World War 2 was a declared war against a nation-state. (And we still fucked up with the Japanese internment camps.) Those POWs were treated in accordance with the Geneva Convention, which exists for a reason.

    The GWOT is a different animal. Rules are going to be different. We're not fighting against a nation-state, we're fighting a diffuse group of non-state actors. Definitions become problematic. Who says who gets tagged an "enemy combatant"? Do we deny rights to criminals with funny-sounding names? If Ted Kaczynski tries to blow someone up, he gets a trial, but if Umar Farouk Abdulmutallab does, he gets a military commission? If US Citizen James Johnson kills his wife, he goes to trial, if US Citizen Muhammed Islam kills someone because he's an extremist, we send a robotic assassin after him?

    Right now, that's the only distinction I'm seeing. I dislike hate-crimes legislation for similar reasons. If you kill someone, you go on trial for killing someone. Why is it different if you did it because the person is a minority or because you have specific extremist religious beliefs? Why is that different from the guy who kills his wife's lover, or a rival drug-dealer?

    Will the GWOT ever end? Are these new rules going to be in effect forever? Where's the problem with actually trying someone in court for committing a crime?

    I have a problem with such an arbitrary method of meting out justice. States have a monopoly on the use of violence, and with that monopoly should come responsibility.

  5. What crime would you charge a Taliban fighter with? Or an al Qaeda member who's perfectly happy to kill American soldiers in Afghanistan, but who had no role at all in 9/11 or any other terrorism plots against the U.S.? I suppose you could charge them all with some kind of vague "conspiracy," but the problem with that is that conspiracy requires agreement as to the criminal object, and you probably don't have that with any except the high level al Qaeda members. So you could stretch conspiracy to cover everyone at Guantanamo, but I'm pretty sure that civil libertarians would come to regret that, as there would be invariable spillover into drug crimes and the like.

    Now, I agree that there are problems with just importing the World War II model into the war on terrorism. And the Bush Administration did not do a good job of thinking through the differences (nor has the Obama Administration). So if your dissatisfaction with enemy combatant detention pertains to the execution of such detention, that's one thing. But complete denial of the ability of the U.S. to detain captured fighters as enemy combatants, even with appropriate standards and procedures, is actually an extreme view. Reading various Supreme Court opinions, every member of the current Court who voted on the 2004 trilogy of cases, has concluded that the congressional authorization for use of military force against al Qaeda gives the President the legal power to detain enemy fighters. The UN Security Council's recognition that the 9/11 attacks triggered the right of self-defense is essentially a similar proclamation under international law. The International Committee for the Red Cross has new guidance out concerning when non-state actors who have a "continuous combat function" can be targeted for lawful military attacks -- a conclusion that also suggests detention (as it would otherwise be weird to be permitted to kill someone in combat but have to release them if you didn't kill them, only to be free to kill them again later).

    Re Lincoln -- if you are curious, Chief Justice Rehnquist's All the Laws But One, and Dan Farber's Lincoln's Constitution, are pretty good places to get a sense of how much Lincoln violated the Constitution during the Civil War.

    Further regarding who is an enemy combatant and who is a criminal defendant, keep in mind that President Bush had the shoe bomber tried in a federal court. The underwear bomber is going to be prosecuted in a federal court as well.

    The difference between Kaczynski and al-Awlaki is that Kaczynski was capable of being captured by law enforcement. Otherwise, I think your hypothetical of citizen Islam has no bearing with any actual case.

  6. There's a difference between how we treat domestic terrorists and how we treat fighters in Afghanistan. (Actually, I think the issues with figuring out how to treat captured Taliban in Afghanistan is a great argument against getting involved in drawn out counterinsurgencies in the first place.) Fighters in Afghanistan can get put into Afghan-run POW prisons, in accordance with the Geneva Convention and with access by the Red Cross. Something that wasn't necessarily the case at Abu Ghraib or Gitmo.

    In fact, I find it vaguely silly that Omar Khadr is being charged in a military commission for having thrown a grenade at a soldier in Afghanistan when he was 14. In his case, it's mostly annoying that Canada has seemed unwilling to touch him with a ten-foot-pole, instead of taking charge, since he's a Canadian citizen.

    As for the Kaczynski analogy, despite Captain Underpants being charged in criminal courts, Very Serious People were screaming bloody murder about that decision. You expect it from nutters like Rep King, but "respected centrists" like Joe Lieberman were on board as well. I'm very concerned about further erosion. Even with a constitutional scholar and (at least nominally) staunch defender of civil liberties in the White House, we're still detaining people indefinitely and charging people in military commissions. Even a centrist Republican president (or more hawkish Dem, like Lieberman) could end up taking us even further down this rabbit hole.

    I want this president to set precedents and build a consensus around using criminal courts. Many of the rules are still being sussed out. (If there's anything the Khadr trial is showing, it's that the Pentagon still has no real idea what it's doing in these military commissions.) By not taking a stand now, and rolling back some of the worst aspects of the Bush Administration's overreach, Obama is codifying them. His election was a window of opportunity to reverse the lurch away from the rule of law, and it has been squandered.

  7. I get that you're bothered by abusive treatment of military detainees, and I'm not defending that. But I think you're still not grappling with how criminal law can't deal with everyone in Guantanamo/Bagram. At one point, you note with apparent approval that Bagram detainees are treated as POWs. But later on, you revert to using criminal courts.

    So, take someone like Khadr. I agree that trying him in a military commission for throwing a grenade at US troops is silly, unless he did so in violation of the laws of war (false white flag, etc.), in which case it's an appropriate forum for an actual war crime. But what civilian charge would you prosecute him for?

    Without any extraterritorial US law, the options are (1) release him (and everyone else like him) so that they can come back and fight again, only to be stopped if they happen to be killed; (2) detain them militarily under appropriate standards and procedures, which admittedly need work; (3) detain them militarily under current standards and procedures; (4) prosecute them in military courts; or (5) make up some new civilian crimes to try them for the "crime" of resisting US invaders (as seen from their perspective).

    It's one thing to say that direct perpetrators of terrorism directed at civilians -- guys like KSM -- should be prosecuted in federal court. It's totally different to say that ALL Taliban and al Qaeda fighters should get the same treatment. The idea that you would essentially be prosecuting people in court for thinking that the US is their enemy and then acting on that belief in what they think is self-defense of their home country is actually far more frightening from a civil liberties perspective than military detention.

  8. See, we're talking past each other here. I don't think it's possible or advisable to continually prosecute people who are essentially POWs in criminal courts. I do have a problem with American citizens being denied those rights. I don't think people like Omar Khadr or others whose only crime was fighting against the US in a war we started should even have been brought to Gitmo. If we capture someone who was involved in the 9/11 attacks, then perhaps we can bring them back and try them. If their only crime is being an insurgent, let's not.

    For people like Khadr, either a) he should be treated like any other POW, and held in a prison in Afghanistan according to the standards set by the Geneva convention and with Red Cross access, or b) Canada should be dealing with him, since he is a Canadian citizen. He should not have ended up at Gitmo. I know that now we do have to deal with these people in some way, but it seems to me that at some point we do less damage by just letting them go than trying to come up with some complicated and unweildy legal framework to try them.

    I know that's not an unpopular stance, but I think in the long run, we endanger our security more with extremist recruiting tools like Gitmo than with allowing one or two or twenty guys go that may or may not come back to fight against us. Or maybe we just do our best with the last folks at Gitmo with criminal courts and clear it out that way. For the future, I would prefer that the situation not even arise. But for now, I don't like setting up new rules and precedents via military commissions that nobody understands, including those in the commissions.

  9. Okay, that clears things up for me. Putting aside citizen-combatants, you're concerned about *how* people were treated at Guantanamo, and not the fact that they were detained as military combatants. I'm not sure that Bagram is necessarily better, especially now that many GTMO detainees are in Camp 4, which is essentially modeled after a prisoner of war camp, but it's a reasonable policy point about whether Guantanamo has become irreversibly tainted because of the abuses of the past.