Obama and Indefinite Detention
It's hard to know what to make of this Washington Post article, but it's certainly troubling. If there was anything comforting about Obama's previous--and very concerning--suggestion that some sort of indefinite detention program may be necessary, it was the apparent concession that it could only be done with Congressional approval. The most egregious aspect of the Bush administration's disregard for the rule of law was it's repeated willingness to not only act unilaterally and without Congressional approval, but in many cases to act in direct contravention of existing laws.
If the Washington Post's sources are correct, the Obama administration is now considering implementing an indefinite detention program via executive order, a move that would be troubling for any number of reasons and, as Glenn Greenwald explains, completely contradict Obama's rhetoric and record of statements on this issue.
So what explains this apparent reversal? Has Obama changed his views? Were his views never what we thought they were? Has he compromised his views for political reasons?
While it's never easy to read minds, if I had to guess, I'd guess the latter. I suspect that Obama entered office with the intention of ending the Bush administration's policy of indefinite detention, believing that he could either charge or release everyone currently in custody. And he can. The problem he's discovered is that there are a group of people--certain legacy Bush administration detainees--for whom there is not enough admissible evidence to successfully try but for whom there is enough "evidence" to make a strong public case that the person is dangerous. Having worked as a prosecutor, I can tell you that there is often an enormous gap between what you know and what you can prove in court and an even bigger gap between what you believe and what you can prove in court. And the problem isn't just about statements obtained through coercion (which are inherently unreliable anyway). Key witnesses can become unavailable. Physical evidence can be lost or tainted. Reliable evidence can be excluded because it was the fruit of statements or evidence obtained illegally. Some evidence may be unusable because it would compromise intelligence assets. And all of these problems are compounded by time and by the manifest incompetence of the Bush administration. In other words, there are likely some detainees whom the administration genuinely believes are dangerous but for whom there is simply not enough admissible evidence to convict of a crime.
The result is a difficult political problem. If these people are released or charges are brought against them and then dismissed by a court, Republicans will pounce, accusing Obama of endangering the American people. All of the "evidence" against these people--most of it inadmissible-- will quickly find its way into the media through Republican leaks. We've already seen how Republicans reacted to the prospect of moving Guantanamo detainees to domestic prisons. Their reaction to this would be ten times as aggressive. And if, God forbid, any of these released detainees was ever involved in a future terrorist attack, the political consequences for Obama would be disastrous.
I guess this is a long way of saying that I think the best explanation for what's going on here is simple political cowardice. I suspect that Obama, if not subject to political pressure, would not be in favor of indefinite detention. But I think he's unwilling (or at least very wary) of giving the Republicans this kind of political fodder to attack him with. That's not a defensible reason for doing the wrong thing, of course, but I suspect that it is the explanation. Doing the right thing in this case would carry significant political risk.
As for the prospect of instituting such a program through executive order, as opposed to legislation, it's a bit of a wash. On the one hand, it would be deeply troubling to see Obama bypass Congress, which is something his predecessor was fond of doing. On the other hand, the courts will be much more likely to strike down unilateral executive action, which could result in some very favorable case law. Part of me suspects that the Obama administration may actually be hoping that the courts weigh in and limit what they're allowed to do. To the extent that happens, it provides them with political cover to do the right thing. Of course, such a strategy can also result in court rulings that uphold unilateral exercises of executive power, which is the worst of both worlds.
Whether or not we sympathize with some of the political difficulties the Obama administration faces, it is incumbent upon those of us who care about civil liberties and the rule of law to apply continuous and aggressive pressure on the Obama administration to do the right thing and to live up to the principles they claim to believe in. If there is no political pressure coming from the left on this issue, then the only pressure the administration will feel is demagoguery coming from the right. As discouraged as I've been by recent moves by the Obama administration, I've been encouraged and heartened by the principled criticism being leveled at the administration by people who undoubtedly voted for Obama. This kind of criticism was virtually unheard of during the first few years of the Bush administration, as Republicans rushed to defend every Bush administration decision and policy, no matter how contrary they were to principles they had previously claimed to cherish. Had there been more principled criticism of the Bush administration from the right, it would have been much harder for them to get away with much of what they did.
If the Washington Post's sources are correct, the Obama administration is now considering implementing an indefinite detention program via executive order, a move that would be troubling for any number of reasons and, as Glenn Greenwald explains, completely contradict Obama's rhetoric and record of statements on this issue.
So what explains this apparent reversal? Has Obama changed his views? Were his views never what we thought they were? Has he compromised his views for political reasons?
While it's never easy to read minds, if I had to guess, I'd guess the latter. I suspect that Obama entered office with the intention of ending the Bush administration's policy of indefinite detention, believing that he could either charge or release everyone currently in custody. And he can. The problem he's discovered is that there are a group of people--certain legacy Bush administration detainees--for whom there is not enough admissible evidence to successfully try but for whom there is enough "evidence" to make a strong public case that the person is dangerous. Having worked as a prosecutor, I can tell you that there is often an enormous gap between what you know and what you can prove in court and an even bigger gap between what you believe and what you can prove in court. And the problem isn't just about statements obtained through coercion (which are inherently unreliable anyway). Key witnesses can become unavailable. Physical evidence can be lost or tainted. Reliable evidence can be excluded because it was the fruit of statements or evidence obtained illegally. Some evidence may be unusable because it would compromise intelligence assets. And all of these problems are compounded by time and by the manifest incompetence of the Bush administration. In other words, there are likely some detainees whom the administration genuinely believes are dangerous but for whom there is simply not enough admissible evidence to convict of a crime.
The result is a difficult political problem. If these people are released or charges are brought against them and then dismissed by a court, Republicans will pounce, accusing Obama of endangering the American people. All of the "evidence" against these people--most of it inadmissible-- will quickly find its way into the media through Republican leaks. We've already seen how Republicans reacted to the prospect of moving Guantanamo detainees to domestic prisons. Their reaction to this would be ten times as aggressive. And if, God forbid, any of these released detainees was ever involved in a future terrorist attack, the political consequences for Obama would be disastrous.
I guess this is a long way of saying that I think the best explanation for what's going on here is simple political cowardice. I suspect that Obama, if not subject to political pressure, would not be in favor of indefinite detention. But I think he's unwilling (or at least very wary) of giving the Republicans this kind of political fodder to attack him with. That's not a defensible reason for doing the wrong thing, of course, but I suspect that it is the explanation. Doing the right thing in this case would carry significant political risk.
As for the prospect of instituting such a program through executive order, as opposed to legislation, it's a bit of a wash. On the one hand, it would be deeply troubling to see Obama bypass Congress, which is something his predecessor was fond of doing. On the other hand, the courts will be much more likely to strike down unilateral executive action, which could result in some very favorable case law. Part of me suspects that the Obama administration may actually be hoping that the courts weigh in and limit what they're allowed to do. To the extent that happens, it provides them with political cover to do the right thing. Of course, such a strategy can also result in court rulings that uphold unilateral exercises of executive power, which is the worst of both worlds.
Whether or not we sympathize with some of the political difficulties the Obama administration faces, it is incumbent upon those of us who care about civil liberties and the rule of law to apply continuous and aggressive pressure on the Obama administration to do the right thing and to live up to the principles they claim to believe in. If there is no political pressure coming from the left on this issue, then the only pressure the administration will feel is demagoguery coming from the right. As discouraged as I've been by recent moves by the Obama administration, I've been encouraged and heartened by the principled criticism being leveled at the administration by people who undoubtedly voted for Obama. This kind of criticism was virtually unheard of during the first few years of the Bush administration, as Republicans rushed to defend every Bush administration decision and policy, no matter how contrary they were to principles they had previously claimed to cherish. Had there been more principled criticism of the Bush administration from the right, it would have been much harder for them to get away with much of what they did.
posted by A.L. at 10:42 AM
36 Comments:
Would you suggest increased donations to the ACLU would be in order?
In either the case of creeping (or latent) authoritarianism or the case where it's all a game of political chicken, that would seem to me to be a good bet, but I'm interested in anything that will help nip this dismaying development in the bud.
I think the thrust of this post is right on the money, but I question the value of examining Obama's motives here. What he's doing is wrong and destructive, and undermines the rule of law in a way that sets an atrocious precedent for future administrations. As much as it pains me to admit, your argument about Obama worrying about losing political capital recalls Dan Drezner's wistful defense of Cheney as a confused, misguided father figure just trying to keep the folks safe. We're talking about men who already wield an unfathomable amount of power, and any way you slice it their actions are designed to increase that power, with a very real and risible human cost. Our current detention system presents an extremely urgent human rights situation, and I fear attempts to humanize the officials who've created and sustained this system distracts from the real issues at hand.
That being said, I want to thank A.L. for the vital work you've been doing on these topics, and your point about applying continuous and aggressive pressure is so unbelievably important that it can never be repeated enough.
The argument that Obama is torn between doing what is right and doing what is politically expedient would be more plausible if his reversal of promises were limited only to this instance. But the refusal to open Bush administration documents on torture, continuing to hide the visitor log of the White House, etc. does little to support that line of argument. It seems as if he is reniging on some promise almost daily.
I agree it is an act of political cowardice; the only caveat I would add is I think Obama is realizing that he is on his own out there because congressional democrats are worse than worthless. Maybe he could fight this with a functioning Democratic majority in Congress but half these idiots are part of the problem, or cowed by the republicans, and answer to no one but their local constituents.
I don't think Obama could do this alone, this soon after the Bush Administration, with this set of republicans. Reversing so many campaign promises is not winning him any points either though, and that's something else he's going to have to figure out how to deal with.
AL- you acknowledge that “there are likely some detainees whom the administration genuinely believes are dangerous but for whom there is simply not enough admissible evidence to convict of a crime.” Why isn’t this fact an adequate explanation for an indefinite detention policy? You seem to assume that Obama would, on principle, release dangerous people if he could, but refuses to do so only out of crass political calculation. This doesn’t make any sense to me. Though I have no particular admiration for Obama, I would assume that if he believes that detainees are dangerous, he would be adverse to releasing them.
This also seems fairly consistent with the rest of Obama’s foreign and national security policy, which I would describe as emotionally detached realism. Yes, it’s a shame that the CIA tortured people, but now we need the torturers to get back to work gathering intelligence. Yes, its too bad the Iranians are murdering young girls in the streets, but we still want to reach a nuclear deal with them. Yes, we feel bad about the civilians who are killed by drones in Pakistan, but its effective so we are going to escalate the campaign. If Obama were going to break this pattern and let “empathy” guide his decision-making, I hope he wouldn’t start with a bunch of terrorist detainees.
Why isn’t this fact an adequate explanation for an indefinite detention policy?
For the very same reason you cannot simply detain someone indefinitely because you believe they may rape someone. If you can't convict someone, you can't just hold them anyway. This is a fundamental principle of American justice. Why is it that people forget this basic reality when the crime at issue is terrorism?
“For the very same reason you cannot simply detain someone indefinitely because you believe they may rape someone. If you can't convict someone, you can't just hold them anyway. This is a fundamental principle of American justice. Why is it that people forget this basic reality when the crime at issue is terrorism?”
You are making the assumption that terrorists should be treated as criminals, rather than as enemy combatants. I find it hard to understand exactly how this logic works. For example, suppose we know there is a Taliban funeral taking place in Pakistan. Under current policy, it is perfectly ok for us to fire missiles at this funeral, even though it is virtually certain that there will be some collateral damage among innocent civilians. (As far as I know, we don’t fire missiles at places where rapists might be present). Do you object to this policy? If not, why not?
Now lets say that it were possible for us to land special forces and round up all of the suspected Taliban militants at the funeral. Do we need probable cause to arrest them? Arrest warrants? Suppose it is undisputed that the captured militants consider themselves to be in a state of armed hostility against the United States, but that they have never broken any US criminal laws. Do they have to be released?
If you believe that it is acceptable for us to treat suspected militants as enemy combatants on the “battlefield,” but not once they are captured, it seems to me that you should provide some explanation for this anomaly. At the very least, you shouldn’t simply assert your position as self-evident. What historical or legal precedent would you point to that suggests KSM is entitled to be treated better than, for example, Rudolf Hess (to say nothing of Japanese-Americans who were indefinitely detained during WWII)?
In any event, your response did not really answer my question. The question wasn’t why you object to indefinite detention, but why you assume that Obama’s position is not taken in good faith.
I too have been trying to figure out which laws we're refering to here: our laws or international laws? Our laws do not apply to foreign suspects in a time of war - or do they? I thought the Geneva convention applied to situations like this. What does it say about indefinite detention?
The detainment of Japanese Americans was wrong of course, but we kept German soldiers in camps during the war, some of them on American soil. But since they weren't Americans they had even less rights than the Japanese.
What if WWII had turned into some 50 year monster of a war? Would we have kept them there the entire time? As in indefinite detention? Would they be there til they died? And what happened to them when the war was over? (I'm really asking, I can't remember). Did we let them out? Because there is no Germany to fall here, no marker to signal today's war is officially over here, and that is a problem for laws meant to determine war crimes.
At the very least, you shouldn’t simply assert your position as self-evident.
MLS, pardon me for not reinventing the wheel in a comment. I've actually written extensively on this subject, both here and in actual briefs filed in actual courts.
Long story short, I don't believe the combatant paradigm makes any sense when talking about terrorism suspects. It makes sense when you capture uniformed soldiers on a battlefield. In that situation, you are merely holding people until the end of hostilities and there is very little change of error.
When you're essentially abducting people from all over the world and holding them in a "war" that will never end, it is just not feasible or just to hold them forever. It offends basic notions of due process.
Without gainsaying anything in the post or comments (except for mls who seems determined to change the subject) there is another possible explanation for Obama's shifting positions.
Power corrupts. Did anyone ever think that too much power in the hands of a Democratic president would be better, or even different from too much power in the hands of a Republican president?
Obama is human and corruptible. The Executive Branch has a lot more power than it did 10 years ago. This is the new American Way.
A.L.:
Long story short, I don't believe the combatant paradigm makes any sense when talking about terrorism suspects. It makes sense when you capture uniformed soldiers on a battlefield.
Both uniformed soldiers and terrorist "suspects" kill their enemies in order to effect political change. The difference is that terrorist "suspects" are different from uniformed soldiers in that terrorist "suspects" don't follow the rules of war, which includes the wearing of uniforms and not targeting civilians.
Of course, the reasons terrorist "suspects" don't wear uniforms is that it makes it easier for them to infiltrate those areas they target. This isn't just a one-time thing, but is a strategy used by the terrorist "suspects" in every depraved act of terrorism they commit. So is the use by terrorist "suspects" to murder civilians which helps them keep the civilians under the control of the terrorist "suspects".
But instead of condemning the egregious violations of the rules of war by these terrorist "suspects", you would provide cover to the terrorist "suspects" under a false notion of what you consider "due process", because terrorists (not terrorist "suspects", but terrorists) choose not to follow the laws of war, which are part of the rule of law you claim to support.
It was this notion of "due process" that allowed terrorists to murder and maim thousands upon thousands of innocents in activities that are nothing less than illegal acts of war by the terrorists. You are offended because what you call "basic notions of due process" aren't being followed? I'm offended by your notion that you would provide cover for what are clear violations of the laws of war.
When you're essentially abducting people from all over the world...
Considering no U.S. government official has been charged with kidnapping or abduction, and in the cases you have provided show a willingness by foreign governments to assist with these "abductions" (as you call them), your accusation that the U.S. has gone outside of the law continues to be ridiculous.
Steve (and MLS),
Should Terry Nichols and Timothy McVeigh have been treated as combantants? If they had been acquitted at trial, should we have held them indefinitely anyway?
How about members of drug cartels, who are just as violent as terrorists?
The laws of war were never meant to apply to people who commit crimes outside of a traditional war context. They don't even make sense outside of that context.
SteveAR casts a very wide net in his definition of what is a terrorist. He describes them as killing and injuring a multitude of innocent civilians in an illegal act of war. This definition would include the Israeli army in its recent incursion into Palestine. Granted most of the world branded their action as work of terrorist but not the right wing in this country.
SteveAR said... Considering no U.S. government official has been charged with kidnapping or abduction….11:25 AM
Except when they have: http://www.villagevoice.com/2005-07-05/news/cia-criminals/
" In Italy: Arrest warrants issued for 13 CIA agents for kidnapping a terrorist suspect
Nat Hentoff Tuesday, July 5th 2005"
Obviously, when arguing for powers not in accord with U.S custom or jurisprudence, it's convenient to have a short memory.
Obama here is every bit as corrupt, immoral, illegal and power grabbing as the Bush regime.
His FISA vote proved indeed to be a precursor to his rule which some of us noted at the time while his eager supporters dismissed such hints of his duplicity.
Mike
A.L.:
Should Terry Nichols and Timothy McVeigh have been treated as combantants?
Spare me your ridiculous argument. We aren't talking about a couple of really stupid Americans working on their own, but a network of thousands of terrorists whose only connection to America is to wreck it; foreigners making war on the United States. The comparison in scope and in size is not valid. Period.
How about members of drug cartels, who are just as violent as terrorists?
Did you oppose U.S. involvement in the justified killing of drug kingpin Pablo Escobar? As you can tell, I don't.
Let me add something else. The biggest U.S. drug cartels abuse the system in order to make illegal profits, not for political change; they abuse the system in order to accumulate their ill-gotten gains, but they still need the current system in place. It's apples and oranges as compared to what the terrorists want.
The laws of war were never meant to apply to people who commit crimes outside of a traditional war context.
Sure they are, and it's explained plainly and explicitly in Common Article 2. Besides, what, in your opinion, constitutes a "traditional war context"? We aren't talking about a couple of hundred "wiseguys" with maybe ten times the number of "connected guys" all out to make a buck by hook or by crook, who abuse the system in order to get their profits; we're talking thousands of terrorists out to create a state, and have determined that the U.S. seriously hampers that effort, hence their war with us. Based on how you've described things, your definition of "traditional war context" is nothing more than an attempt to redefine when a war is justified and how to fight it. That redefinition is invalid.
By "traditional war context," I mean a situation in which two governments are engaged in hostilities The reason this matter is obvious. When you are fighting a state, the conflict will eventually end in either treaty or a surrender of some sort. When you are fighting a rag-tag group of stateless people, there is no reason to believe hostilities will ever end. There will be no treaty, no surrender.
Our war on terror is no different that our war on drug cartels or the mafia. I don't see why the groups motives make any difference. And you were quick to dismiss the example of Nichols and McVeigh, who were clearly motivated by politics. If they had had a few more buddies, would the laws of war suddenly kick in?
And by the way, just because you use military force to fight members of a group on foreign soil (as we do with drug cartels) doesn't suddenly mean we get to hold people indefinitely. Are we allowed to hold drug cartel members indefinitely?
From the Merriam-Webster on-line dictionary: War -- noun "a state of usually open and declared armed hostile conflict between states or nations"
Asserting that we are in a war with someone promotes that someone to nation or state status.
Yes, I know, that's exactly what AQ wants, and what everyone else wants to prevent.
I marvel at the apparent ability of commenters here and elsewhere to construct at least minimally coherent arguments -- yet somehow entirely miss the fundamentals of strategy.
A.L.:
By "traditional war context," I mean a situation in which two governments are engaged in hostilities The reason this matter is obvious. When you are fighting a state, the conflict will eventually end in either treaty or a surrender of some sort. When you are fighting a rag-tag group of stateless people, there is no reason to believe hostilities will ever end.
That is an antiquated worldview of what is a war, and reflects a thinking that is unbending despite the available facts; you are your own definition of a conservative. This "rag-tag group of stateless people", looking to establish a nation, exploited this kind of thinking to perpetrate all of its war crimes over the last dozen years. And how do you know this war won't end, or that the enemy won't surrender?
Our war on terror is no different that our war on drug cartels or the mafia. I don't see why the groups motives make any difference.
That is an amazing statement coming from someone who is a litigator and was a prosecutor. Are you kidding me? Motive doesn't matter?
And you were quick to dismiss the example of Nichols and McVeigh, who were clearly motivated by politics. If they had had a few more buddies, would the laws of war suddenly kick in?
I was quick to dismiss using them as a comparison because the facts showed the two only worked together, and that there were no other confederates involved with their scheme. Your "what if" scenario is a complete non sequiter because of those facts.
SteveAR:
So, in your opinion, how big does a conspiracy have to be before you'll support suspension of due process for people suspected of belonging to it? Is it ten people? Fifty? A hundred? Give us some numbers.
Ebonmuse:
So, in your opinion, how big does a conspiracy have to be before you'll support suspension of due process for people suspected of belonging to it?
Between 1998 and 9/11 inclusive, there were almost 3300 killed and over 5000 wounded in Al Qaeda terrorist attacks on U.S. targets, and that doesn't even count all of the people who have gotten ill from cleaning up, nor the number of people butchered by Al Qaeda against other targets we don't know about.
The real question is how many innocents need to be killed and maimed before you get the idea we are at war, because 10,000 is obviously not enough. Maybe 10,000,000? Would the blood of 10,000,000 dead and wounded Americans finally convince you the U.S. is at war?
stevear does not understand the idea of maintaining one's values in the face of adversity. the steve's of the world want war, condone torture, allow for the breaking of us and international law. suppossedly to save 10,000, right steve? how many die a year due to inadequite healthcare or side effects from pharmaceuticals drugs? more that 10000, but to solve those problems over a faceless enemy who we create more of by our own actions, well, obviously we dont get it.
-pl
Let me respond to your points.
1. The laws of war aren’t meant to apply outside of the context of combat between armies representing nation-states. As a legal matter, I am pretty sure that this is wrong. Indeed, much of the criticism of the Bush Administration was based on the fact that it did not properly recognize the applicability of the laws of war to the war against terror.
I assume that you don’t really mean that the laws of war are totally inapplicable to combat against non-state actors, just that it is improper to treat representatives of non-state forces as prisoners of war, rather than as criminals. But there are plenty of wars that involve at least one non-state actor (civil wars, guerilla wars, insurrections). The US has been involved in its share of such conflicts (Vietnam, the Philippines, Indian Wars, the Civil War). If there is some precedent or tradition that says it is wrong to treat captured non-state combatants as prisoners of war, surely you can cite it (having written briefs on the subject and all). My sense is that to the extent there is a dispute about the subject, it is whether the irregular forces are entitled to POW status, not whether their captors are obligated to treat them better than POWs.
2. Principles of American justice require giving due process to non-uniformed combatants. Again, we have been involved in plenty of combat with irregular forces so you could perhaps cite some examples to support your contention. Maybe I missed it, but I don’t recall that captured Vietcong were treated as criminal suspects entitled to due process.
If you think that it is unfair and unjust to treat a detainee as an enemy combatant without establishing first that he is an enemy combatant, let me remind you of something. There are detainees who freely admit being members of AQ or the Taliban (eg, KSM). For all you know, all of the detainees who will be subjected to indefinite detention will be undisputed enemy combatants.
3. Our war on terror is no different that our war on drug cartels or the mafia. Strictly speaking, there is no “war on terror,” there is an authorization for the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” There is, as far as I know, nothing comparable with respect to drug cartels or the mafia.
In addition to that fundamental distinction, you seem to be forgetting the fact that the Taliban did in fact control a nation-state on 9/11 and, to this day, they, along with AQ, constitute the de facto government in substantial portions of Afghanistan and Pakistan. Although they conduct acts of terror against civilian populations, they also conduct military operations against US and allied forces. To equate them with drug lords or organized crime is ignoring reality.
4. We have to treat the Taliban and AQ the same way we treated Nichols and McVeigh. This only makes sense if you assume that the authority to use force against the Taliban and AQ comes from the fact that they are “terrorists,” rather than, as is the case, from the AUMF. If Congress had authorized the use of military force against the plotters of the Oklahoma City bombing, there might be an analogy.
5. Finally, let me respond to C2’s point, which is that it is a bad strategy to give the Taliban and AQ the dignity and status of a wartime enemy, and that it would be better to treat them as common criminals. I would be happy to debate this point, which I think has some merit but is not ultimately persuasive. But the important point to note is that this is a policy disagreement, and specifically a disagreement with a policy that has been overwhelmingly adopted and supported by our elected government.
MLS,
I should be clear. I'm not suggesting that my view about how Al Qaeda members should be classified is the one the Supreme Court would necessarily adopt. These are open questions. Indeed they are the very questions that were tee'd up by the Al-Marri and Padilla cases and were ultimately not decided because they were, at the last minute, charged with crimes and transfered to the criminal justice system. The Court would likely decide 5-4 one way or the other. I do, however, find my side of the argument to be on firmer legal and constitutional footing.
Bear in mind, I'm not talking about members of the Taliban captured in Af/Pak. That was decided in Hamdi. I'm talking about members of groups like Al Qaeda that are not soldiers of states or state-like entities. And I'm not suggesting that law of war principles only apply to actual states. The Confederacy, for example, was sufficiently state-like for such principles to have meaning. It ultimately surrendered, and confederate prisoners were released. On the other hand, the confederate sympathizer groups like the Sons of Liberty were not sufficiently state-like to qualify as combatants. Hence, the Court's decision in Ex parte Milligan (which is still good law).
Other than being foreign-based, Al Qaeda is absolutely no different than the Sons of Liberty (a terrorist group that posed a real threat during the Civil War and against whom the President was also authorized to use force, just like the AUMF).
And by the way, we also use military force against drug cartels in South America. Just because you use the military doesn't mean it makes sense to treat members of a stateless organization as combatants. You haven't provided any meaningful response to the fundamental problem, that a war against a dispersed and constantly replenishing stateless organization is likely never to end. Law of war principles were never intended to allow for endless detention.
Again, I appreciate you're comments, but trust me when I say that I'm well aware of every point you're making. I'm very familiar with these issues and your position is by no means as strong as you seem to think.
A.L.:
I'm very familiar with these issues and your position is by no means as strong as you seem to think.
I don't believe your position is as strong as you think. You cite Milligan:
On the other hand, the confederate sympathizer groups like the Sons of Liberty were not sufficiently state-like to qualify as combatants. Hence, the Court's decision in Ex parte Milligan (which is still good law).
And then add this:
Other than being foreign-based, Al Qaeda is absolutely no different than the Sons of Liberty (a terrorist group that posed a real threat during the Civil War and against whom the President was also authorized to use force, just like the AUMF).
The part about the vast majority of Al Qaeda members being foreign-based, and excepting U.S. persons (as was the case Hamdi, al-Marri, and Padilla) is the point. Milligan has no application here because of that very distinction.
You haven't provided any meaningful response to the fundamental problem, that a war against a dispersed and constantly replenishing stateless organization is likely never to end. Law of war principles were never intended to allow for endless detention.
There is a meaningful response; all wars end. They may not end in three, four, eight, ten, thirty, or even a hundred years, but they do end. Law of war principles definitely allow for endless detention, in the Geneva Conventions. There is nothing in there that says prisoners captured during a war have to be released after a certain timeframe while a war is still taking place, and the Supreme Court hasn't varied from that in every case they've decided since 9/11.
The things I wonder about all this are (not necessarily in order of priority):
-- if we're at war, how come there aren't very many battles, just unexpected deliveries of high explosives on both sides?
-- if we have to give up (remember, "first they came for ...") rights to be charged, tried, to confront the witnesses, etc, because of this "war", why is it, apparently, forever? Why not merely for the "duration"?
-- does it really help anything but a certain argument to lump AQ, the taliban, plus a whole bunch of other organizations, together as if they were one big "state?" They all have different goals. Ever hear of "divide and conquer?"
Oh, and SteveAR, we're not at war. Each and every time you say that we are, you should be corrected.
C2H50H:
-- if we have to give up (remember, "first they came for ...") rights to be charged, tried, to confront the witnesses, etc, because of this "war", why is it, apparently, forever? Why not merely for the "duration"?
Where, in the law, does anything say all this lasts forever? Where, in the law, does it state that a war, or a "war" (in your words), is of a specific duration? You think this is going on forever. How do you define "forever", longer than 5 minutes? Longer than 5 years? 10? 30? 100? When the U.S. declared war on Japan and Germany, was there a timeframe on when it would be completed? If there was, it would be the first time anybody found such a clause.
Oh, and SteveAR, we're not at war. Each and every time you say that we are, you should be corrected.
And what constitutes a war? A congressional declaration and that's it? Or is it the Merriam-Webster definition you pulled up earlier? Even the Geneva Conventions don't define a war as narrowly as you seem to want to. Here is a couple of others:
American Heritage: A state of open, armed, often prolonged conflict carried on between nations, states, or parties.
Collins Essential: open armed conflict between two or more countries or groups.
Both definitions fit our war against Al Qaeda.
I'm not wrong in saying the U.S. is at war.
SteveAR,
You said, in a previous comment, that wars end. But the current conflict will never end, as long as there are disaffected individuals willing to commit atrocities for imagined political ends. Therefore, by your own assertion, this cannot be a "war".
Also, AQ is not a state, and not even a "group", but rather a very loosely affiliated bunch of organizations, with no clear leadership or structure. Therefore, they cannot wage "war". They can, of course, commit crimes, and very deadly ones, but, as others have pointed out, that doesn't distinguish them from, say, Union Carbide.
Why are you asking me why I think the conflict is forever? You and those like you are the ones who cannot give a date, or even a sane condition, by which we would know when the current conflict would be over. (By "sane" I mean, excluding "when they're all dead" or "when people stop using terrorism".)
By the way, there was an interesting program on NPR today in which a knowledgeable military expert was asked if and why the "surge" succeeded. The reply was that the extra troops did little or nothing, but, by changing strategy, namely by ceasing to treat the conflict as a war, by dealing with the Sunni and Shia insurgents (paying them, essentially, to stop fighting), and by moving from a "search and destroy" methodology to a "win the hearts and minds" methodology, we've managed to get to where are today.
Treating the conflict as a "war" is not only fundamentally flawed as a logical proposition, it is counterproductive as a strategic matter.
C2H50H:
Why are you asking me why I think the conflict is forever? You and those like you are the ones who cannot give a date, or even a sane condition, by which we would know when the current conflict would be over.
Was FDR's call for Germany's and Japan's unconditional surrender "sane"? It took him two years to issue that call, and two years for it to finally occur, and that was after bombing Germany and Japan relentlessly, letting the Soviets rampage over the German military and civilians, and our dropping nukes on Japan. And if you believe FDR's call for those two nations to surrender unconditionally was sane, what is the difference between that and what we want Al Qaeda to do? Wouldn't demanding their unconditional surrender be a way to appropriately end this conflict in a "sane" manner?
Here's the other thing. You leftists always believe a war has to be started with an exit strategy in mind, something no sane military commander would do. But I never hear the one word out of your lips or fingers of the goal required to end a battle or a war successfully, the word "victory". I'm sure you'll come up with some ridiculous reason why victory doesn't matter, so don't bother explaining it as I've heard it already.
So here's a sane exit strategy: the unconditional surrender of all Al Qaeda vermin, which means victory for the U.S. and the American people, along with everyone else who they've caused to suffer.
Treating the conflict as a "war" is not only fundamentally flawed as a logical proposition, it is counterproductive as a strategic matter.
What strategic matter is that, implementing Obama's leftist policies that will take decades to recover from? The same kinds of policies supported by the leftist flacks at NPR (which is why I don't listen to them, even though money is stolen from me to support that pathetic "service")? Let me just say that I doubt the left has the capability to think strategically, nor consider the national security of the United States as part of that thinking. Getting Obama elected is a perfect example of that.
Another is the idiotic and perverse comparisons used by so many on the left; ie., your tripe equating Union Carbide with terrorists. You are accusing, without any evidence or facts, that American-run Union Carbide set up a plant in Bhopal in order to murder Indians. What they did do was terrible and criminal, but I have no doubt they went to India to make money, not kill its own workers (which is usually counterproductive). You want to invalidly redefine terrorism in order to blame America for all the sins of the world. That, to me, doesn't seem to be sane.
SteveAR,
Are you trying to argue that Germany, under the Nazis, and Japan, under Hirohito, weren't states?
The difference between absolute tyrannies like Japan ca 1940 and Germany 1932-1945 and AQ is enormous. Among them: Hirohito was, literally, a god to the Japanese at the time. Hitler was the absolute ruler of Germany. In AQ, the organization isn't even strictly hierarchical -- it's more like McDonalds than Walmart, in other words.
Apparently you think that the current conflict will be over when AQ "surrenders". That's either insane or dishonest. As you've been told, repeatedly, AQ isn't hierarchical. Bin Laden could be captured or killed tomorrow (and for all anybody really knows, may have been dead for years) and it would not end AQ. I've lost count of the "AQ number 3" individuals killed or captured, with no end in sight. Expecting "surrender" is foolish or a pretext for eternal "war", contrary to your stated assertion that "war" has to end.
I don't get this fixation you have on FDR and what he did or didn't do as a justification for everything. Nobody is going to argue that there wasn't a state of war when FDR was president.
Again, what's appropriate in war is not allowed in peacetime.
Each and every war in history that was successful had a purpose, and a set of military missions that accomplished that purpose. Whether to force the enemy to surrender (which is impossible in the current case), total defeat and occupation of the enemy territory (which is impossible in the current case), diplomatic resolution of the issues (which is impossible in the current case), all wars had resolutions.
On the other hand, criminality has never ceased, the mob still exists, drug dealers pop up as fast as they are cut down -- and terrorism as a means of political struggle doesn't appear likely to end any time soon.
Ask the people of Bhopal if they think UC's actions were criminal or not. Notice I didn't say anything about America here, I said Union Carbide. AQ attacked America to bring about their "caliphate", while UC allowed, through negligence, massive death and destruction to make money. How does one decide which is more criminal?
Bottom line: your conditions for termination of the conflict are ridiculous and would lead to eternal "war" -- which, by your own assertion, is impossible.
I reiterate: either you are dishonest or irrational.
I'll let the readers decide which of us is sane and which of us is delusional.
C2H50H:
As you've been told, repeatedly, AQ isn't hierarchical. Bin Laden could be captured or killed tomorrow (and for all anybody really knows, may have been dead for years) and it would not end AQ.
I do know for a fact that if Al Qaeda surrenders, the war is over. It's simple, basic logic. It's so simple even a leftist could understand it. I didn't say anything about bin Laden being killed (preferable) or captured, but the whole batch of vermin surrendering. That is what I said. As you do constantly, you claim I say one thing when I don't say what you claim at all. If anyone is being irrational or dishonest, it isn't me.
Ask the people of Bhopal if they think UC's actions were criminal or not.
There you go again. This has nothing to do with whether or not Union Carbide committed a criminal act. You accused Union Carbide, which is an American-based company (that isn't a secret), of being the equal of Al Qaeda when you said:
Also, AQ is not a state, and not even a "group", but rather a very loosely affiliated bunch of organizations, with no clear leadership or structure. Therefore, they cannot wage "war". They can, of course, commit crimes, and very deadly ones, but, as others have pointed out, that doesn't distinguish them from, say, Union Carbide.
You claimed Union Carbide was the same as Al Qaeda terrorists. Except that Al Qaeda terrorists go into areas to commit murder, whereas Union Carbide went to India to do business, not to commit murder. That is an egregiously false, America-bashing comparison, like every other comparison you want to use. Then you added more pointless drivel:
AQ attacked America to bring about their "caliphate", while UC allowed, through negligence, massive death and destruction to make money. How does one decide which is more criminal?
To someone with no moral bearing, I doubt you could come up with that decision. You even wrote the answer and still couldn't figure it out. Get this: UC went to India for business purposes, not with the intent to murder people. Their negligence led to massive death, that isn't in question; but if you can't figure out that there is a difference between why an American company sets up shop in a foreign country, and what Al Qaeda does, you'll never get it.
I said above that if anyone is being irrational or dishonest, it isn't me. I'll be clearer, throwing your own words back at you: either you are dishonest or irrational.
SteveAR,
I said (you can scroll up and check) that causing mass casualties through criminal behavior cannot be used to distinguish AQ from UC. I didn't say that AQ and UC were "the same" in all respects, merely that both entities caused mass death and destruction.
I hope you get that soon, as the rest of us (and I'm sure I speak for the other long-suffering readers of these comments) are getting tired of your inability to understand a simple logical statement.
As a matter of logic, who, in AQ, do you think is able to negotiate a surrender? Since AQ derives its authority and ideology from God, your insistence on a surrender basically means you think God (or at least every single imam in Islam -- and there are tens of thousands, just in the Wahhabi sect) would surrender.
I think the chances are better that God, realizing the futility of continuing, will come down and surrender than that the thousands of imams will, but, to be frank, both are impossible, and it is delusional to imagine that could happen.
C2H50H:
As a matter of logic, who, in AQ, do you think is able to negotiate a surrender?
Who said anything about negotiations? What part of the phrase "unconditional surrender" don't you get? There's no negotiating; they surrender without conditions. Period. That's what I said in a previous comment (reprinted verbatim so you understand exactly what I'm saying):
So here's a sane exit strategy: the unconditional surrender of all Al Qaeda vermin, which means victory for the U.S. and the American people, along with everyone else who they've caused to suffer.
Get it? This is exactly what the U.S. government has demanded since we first demanded the Taliban turn over Al Qaeda after 9/11, and has demanded ever since. No negotiations, no conditions, nothing. They lay down their arms and bombs and turn themselves in to the Americans; unconditional surrender.
I didn't say that AQ and UC were "the same" in all respects, merely that both entities caused mass death and destruction.
That is the idiotic moral relativism used by those who have no useful argument. Let me put in a slight modification to your statement to show how ridiculous your argument is:
I didn't say that Nazi Germany and America were "the same" in all respects during WWII, merely that both entities caused mass death and destruction.
You completely ignore intent, something brought out by facts and evidence. It's also something recognized by the law. As I mentioned, Union Carbide didn't set up shop in India to kill people; but, Al Qaeda goes into an area or country in order to commit murder. There is a difference. Otherwise you might as well say that there were no differences between the U.S. and Nazi Germany during WWII.
Since AQ derives its authority and ideology from God, your insistence on a surrender basically means you think God (or at least every single imam in Islam -- and there are tens of thousands, just in the Wahhabi sect) would surrender.
So now you are calling all Muslims terrorists? That sounds like something you would accuse conservatives of doing.
Do you honestly believe every single Muslim would want to adhere to the perversion of Islam offered by Al Qaeda? If that were the case, we'd be in a religious war, which clearly is not going on (despite Al Qaeda's insistence that this is a religious war which you, unlike more than a billion Muslims, are willing to believe). If I were you, I'd stop talking about Al Qaeda and Islam as if you know anything about the two, because you don't.
Steve, do you have any idea how ridiculous you sound? Let's imagine, for a moment, that Osama and various other al Qaeda types decide to surrender unconditionally (which is absurd). Even that wouldn't end the "war on terror." There would still other al Qaeda people left. And still others would take up the mantle and call themselves al Qaeda. This already happens. It's a brand, not a country. It can't surrender.
That's the whole point. When you're fighting a state or a state-like entity, conflict will eventually end. When you're fighting a group of loosely-affiliated (if affiliated at all) people, war will never end. 200 years from now, someone somewhere will still call himself an al Qaeda member.
SteveAR,
I see that you don't have any way to answer the simple question: who will surrender?
Without answering that question, you cannot expect anyone to take your blather about "surrender" seriously, as apparently you think all affiliates of AQ (dozens, if not hundreds of groups worldwide) would lay down their weapons.
Can you even appreciate how insane that expectation is?
I don't think your argument about death and destruction really says what you think it does, unless you believe that the Allies in WWII won without inflicting massive casualties on the civilian populations of Germany and Japan.
Hellooo, ever hear of Dresden? Hiroshima?
You seem to be afflicted with one of the worst cases of ideological blindness I've ever seen.
Misinterpreting what I said to then argue against it is an interesting, if ineffective, twist on the classic strawman ploy.
Nobody knows what proportion of muslims sympathize with AQ to some degree. What is certain is that millions do, and thousands of Imams. Since you were the one insisting on unconditional surrender, you are the one who would require all those people to surrender.
I was merely pointing out how insanely stupid expecting that to happen.
You've never displayed the slightest understanding or familiarity with, well, with much of anything, so pretending you are in a position to judge someone else's knowledge is hilarious.
A.L.:
Steve, do you have any idea how ridiculous you sound?
As opposed to whom, you? What do you want? A return to the glory days of the small-minded, failed law enforcement policies to fight terrorism that was already proven to have put thousands of Americans unnecessarily at risk? What, to satisfy yourself that the U.S. followed what "civil liberties" leftists call "the rule of law"? If, as part of a return to the law enforcement policy that failed before, more Al Qaeda terrorist attacks on the U.S. occur; how long do you think the people will accept your notion of the "rule of law", especially if the government deliberately avoids aggressively stopping Al Qaeda, only prosecuting terrorists after terrorist attacks occur?
SteveAR,
"failed law enforcement policies"? Like responding, "All right, you've covered your ass" when given a briefing entitled "Bin Laden determined to strike within the united states"? And ignoring the warnings of Richard Clark?
Please give evidence for where the "government deliberately avoids aggressively stopping Al Qaeda". I'm sure everyone here would love to hear what you think could be done more aggressively. Perhaps you think grabbing more citizens of Afghanistan or Pakistan and keeping them in detention for years before deciding that they were, in fact, not guilty, will help win the hearts and minds of potential terrorists?
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