Thursday, September 18, 2008
After seven years, full resolution remains open on the question of how to deal with al Qa'eda terrorists: ordinary criminals, prisoners of war, or something else? The Bush administration's improvised approach, based on the unprecedented situation, was one of administrative detention, modified by court rulings and Congress' 2005 action on military tribunals.
Many of the Bush administration critics can't be taken seriously. They seem to think government's job is hairsplitting rather than protecting the public at large. Government is elected to do nothing else.
The situation actually is unprecedented, at least for the US. Terrorist groups are not state armies and thus not protected by the Geneva Convention. OTOH, they act as enemies of American society and not just criminals. They're private armies in all but name. No existing body of law comprehensively reflects this fact.
The central problem with the Bush policy is not that it is a "torture policy," but rather, no policy at all. Improvised from the start by wide-ranging executive discretion, the Bush non-policy was shaped by Cheney's obsession with executive privilege and secrecy and threatens to vanish when he leaves office. Only a new legal structure, qualified and honed by court precedent, can last.
This is one of the basic points of Jack Goldsmith's The Terror Presidency. His title reflects the new reality that every president from now on will have to respond to. Goldsmith served as legal counsel to the Bush administration and found much of its improvisation in this department seriously flawed. His points of comparison are the reactions of FDR and Lincoln in roughly analogous situations. But he also convincingly shows the dereliction of Congress, which increasingly seems silly and irrelevant. Its lack of involvement is the big black hole of this issue. Today it spends most of its energy on attacking Bush when convenient and otherwise ducking its responsibilities.
Goldsmith's points are underscored and given deeper resonance by Benjamin Wittes' recent fine book, Law and the Long War. Even more than in Goldsmith's book, Congress is the main target of Wittes' contempt.
The larger situation is worth a long look. Dealing with private armies is, for us, a new kind of war. Much of the problem that people feel about this conflict stems ultimately from the nature of the Middle Eastern and Muslim governments who make up some of our most crucial allies. All of them are dysfunctional and corrupt, frequently oppressive and mostly autocratic. Most of them routinely use torture and treat accused terrorists outside of any regular legal process.
Such facts make policies like "rendition" all but inevitable. It is certainly in no way a new policy. The first rendition occurred under the Reagan administration, and the Clinton years saw over a hundred. There's no way to cooperate with these regimes and get their cooperation for our purposes without it. To ask for something else would mean having to reconsider our whole alliance and cooperation with these regimes from scratch. Talk otherwise is fantasy.
We have democratic allies with experience in this area. We can start by studying them: Britain, France, Israel. The French system is all-civilian but tough (much tougher than the American in many ways), but requires the highly centralized and unitary state of France. The British and Israeli experience is more relevant to our own, because of their mixed and divided systems of government. They feature military capture and interrogation on the "front end" and civilian review and closure on the "back end." That is what the American system is stumbling towards. But it needs real Congressional supervision, not hot air and grandstanding.
DISTURBING POSTSCRIPT: Have you noticed a repeated theme here and elsewhere? It's the irrelevance of Congress. Over at Volokh Conspiracy, Todd Zywicki has a thoughtful and disturbing post on this topic. Are we turning into a bureaucratic dictatorship, where we get to vote on the dictator every four years?
Of course, the fact that the present Congress is the most non-productive in modern history is perhaps a blessing. No one's aching to see them turn their attention to anything serious, as they'll just further screw it up.
POST-POSTSCRIPT: Speaking of torture, McCain's former captors in Vietnam admire him and want him as US president -- seriously! Of course, it's been a while since that nasty and strange war ended. In the meantime, the US has normalized relations with Vietnam (thanks, in part, to McCain and other Vietnam vets) and has spent over a decade expanding military cooperation, in an effort to offset China's rising power. Why, the US Navy is even back in Cam Ranh Bay :)
In politics, it really is better to be respected than loved.
All of it reasonable and thoughtful commetary, though the following is worth placing in some broader historical perspective:
"Dealing with private armies is, for us, a new kind of war."
From the dawn of civilization to the ascendency of the nation state in its modern and late-modern form in the 18th and 19th centuries, virtually all armies had substantial and even vast contingents of mercenary and private forces; from antiquity through to Westphalia and beyond such was the case. Perhaps there were prominent exceptions, I'm no military historian and do not pretend to be one, but at least in general terms that had long been the case. So, that excuse as such, much touted by many, many commentators, is no real excuse at all for the failures as reflected primarily in the U.S. Congress.
I pretty much agree. The modern laws of war date from the late nineteenth and twentieth centuries, by which time, mercenaries played little or no role in modern state armies. The Geneva Conventions do have a category of "irregulars," but these are still directed and sponsored by states. Many international law experts think (but it's just their opinion, not law) that terrorists should be treated under the rules for "irregulars." I think it's a good starting point, but not a complete solution.
Have you noticed a repeated theme here and elsewhere? It's the irrelevance of Congress. Over at Volokh Conspiracy, Todd Zywicki has a thoughtful and disturbing post on this topic. Are we turning into a bureaucratic dictatorship
How about educating the electorate into voting for representatives who are capable of legislating intelligently.
Of course you'll have to institute a special SATS for prospective Reps. :-)
I believe that McCain warned about the current banking crisis way back in 2005 ("Federal Housing Enterprise Regulatory Reform Act"); but then of course he is just a maverick.
Yes. Likewise, the fact "modern laws of war date from the late nineteenth and twentieth centuries" is a fact that underscores just how dependent our conceptions of international institututions and international law more specifically are upon earlier and yet more foundational developments - developments and assumptions that are too often merely taken for granted. Rather than being taken for granted, those foundations need to be viewed and evaluated - and appreciated on their own merits. I.e. to be more pedantic still, as with any foundation they need to be thoughtfully conserved.
For example, this commentary by Melanie Phillips serves as a tangent only, but it is one point of reference nonetheless that serves to underscore how more foundational conceptions can too readily and too eagerly be taken for granted, absent more conscious assessments of the foundations that are at play.
All that opens up a huge set of issues, but in general terms alone is worth some pointed emphasis.
Cynic has it right; although, voter turnout in Congressional elections is so low, that it's a wonder we call them "elections."
Back to Michael B's point: yes, basic definitional issues of nation-state, national and international law, and so on, need a second and third look. The Western world has lived with this system for so long we take almost every aspect of it for granted. But step into the Middle East, and it's a different world.