wittes booktv

I described his book (Law in and the Long War) before. Video from BookTV of him describing the book.

The basic argument is that neither the Bush administration’s paradigm of the Law of Warfare nor a total acceptance of the Civil Society argument (typically from left/libertarians) is adequate to the task at hand. The key is not to create our legal frame by fights between an experimental executive and a judiciary that simply has negative power (can’t do that…can’t do that….) but can’t define positively what they should be doing. That task falls to the Congress. That way also securing a frame that both parties will accede to and defend throughout this period (a la the Cold War bipartisan consensus). The latter important because for Wittes (here I think he is spot on) the increasing politicization/partisanization of the process is making both sides give radically simplistic answers to what are otherwise extremely difficult questions.

Wittes thinks the proper legal analogy is actually from cases of mentally disturbed persons. The prosecution has to give much more evidence up front (much higher threshold than currently in place even with habeus corpus) as well as greater ability to see evidence by the defense and yet when that threshold is cleared judicially (i.e. the person is declared danger to self/society and is put in psychiatric ward) there are no questions asked as to the detention’s legal status.

You can also listen for the legislation that should be in place vis a vis interrogations (CIA), detentions, trials, and surveillance.

Edit I: Germaine to this discussion, the Hamdan verdict is in.

A Quote for the Day

From Eric Martin at Obsidian Wings:

The Pentagon just concluded, after an exhaustive study (via the conservative Rand Corporation), that the much-maligned John Kerry approach to fighting terrorism is also the right way to fight terrorism. That is, law enforcement and intelligence as opposed to reliance on the military (with the latter being the Bush administration approach). Oops! Bonus: John Edwards was right as well in his call to abandon the counterproductive “War on Terror” frame. He is so naive isn’t he!

Published in: on August 1, 2008 at 3:01 pm  Leave a Comment  

Obama’s Berlin Speech

The full text of the speech is here.

My general sense is that it was a (somewhat) interesting failure. I’m not really sure why he gave it–nor am I sure if he knew why he was doing it. But it was a sort of different try. I’m all for failed experiments in that mold.

The right of course is going ballistic over his use of the “world citizen” trope, which philosophically I’m basically in agreement with Poulos. However, the tired right-wing politicization of everything and its historical amnesia, again rears its ugly head deconstructing their own critique because St. Ronald of Reagan actually used the hated phrase (“citizens of the world”) in a SOTU speech. (h/t KB via Yglesias). Oops.

Obviously the Obama paeans to ending global warming, curing all poverty, never again allowing genocide, played well to the crowd and are largely some hot air.

That stuff aside for the moment (bc like i said I still think it was overall a failure), Obama correctly warned that the globalized world we have created can not last so long as the gains are so disproportionately dispersed. The system can only maintain itself in that fashion by systematic, massive violence which undercuts everything the better angels of the West stand for–opportunity, freedom, rule of law/justice, and the like.

But this part actually I found quite sharp

The terrorists of September 11th plotted in Hamburg and trained in Kandahar and Karachi before killing thousands from all over the globe on American soil…

Poorly secured nuclear material in the former Soviet Union, or secrets from a scientist in Pakistan could help build a bomb that detonates in Paris. The poppies in Afghanistan become the heroin in Berlin.

It was a very intelligent frame (imo) to place the struggle against terrorism as a parallel to the battle of ideas against Communism (against the backdrop of the site/anniversary of the Berlin Air Lift). Bush and the neocons mythic belief in democracy (if you assume for the moment it was sincere) already held that people all the time, in every place and age want freedom (hint: they don’t, at least not in the way the West defines freedom). Hence there was no need to argue on a idea-plane for rule of law. Nor was there any worry that committing crimes (e.g. torture) that undercut that standing would reduce the desire for freedom in the rest of the world.

Obama is going back to a road opened up after 9/11 that Bush never took–a united front against terrorism.  Rather than and out and out attempt to unilaterally impose an American century via imperial trouncing around the Middle  East.

Obama posits a view that learned the lessons of the Cold War (containment, the priority of values, and the need for the US to employ its power through institutions/alliances) without actually living in the dark mindset of the Cold War–the paranoia, realizing that the terrorists are not the Soviets, not within reach/have the capacity take over the world. Its post-Cold War in that its not seeing for example, the primary lens (a la Bush-Cheney-Wolfowitz) as nation states but rather the seams/gaps in globalization that trans-national groups can exploit.

Obama is still too enamored I think of the notion that poverty breeds terrorism. Therefore his references to ending it. I understand it’s a selling point, but it doesn’t really add up at least relative to al-Qaeda. Their beef is US foreign policy plain and simple.  I think you could make the point that such poverty is a blight and must be engaged simply on a moral level not vis a vis terrorism.  Otherwise it can back door “national” Islamist movements into al-Qaeda.

Still at the very least Obama understands that the fight against these groups involves thinking about actual objective realities and learning to live with less-than-ideal scenarios, versus McCain who is lost in Cosmic Good/Evil Land as well as the notion that the fight depend simply on emotional constructs like “no surrender” and strategies based on “victory”–and therefore (falsely and in a pathetic manner) accusing your opponent of seeking to lose wars. [The war was won “my friend”, the peace was lost].

My New Passport

My new passport came in the mail the other day. Gotta say–it’s slick. I dig the eagle.  I guess that’s the upshot of being able to be tracked electronically worldwide.  Viva the National Surveillance State–a little piece of which is sitting in my underwear drawer right now.

Published in: on July 24, 2008 at 9:12 pm  Comments (2)  

Follow up on War on Terror Legal Frame and Congress

As if on cue, following on Wittes’ book, AG Michael Mukasey calls on Congress to set the framework for detainee trials.  Also true to form and per my prediction, the Democrats balk and suggest that right belongs to the Courts.

Published in: on July 21, 2008 at 10:41 pm  Leave a Comment  
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The Legal Frame of the War on Terror

Benjamin Wittes from the Brookings Institute has a new book out called Law and the Long War. As one of my bizarre little quirks I like to go to the local chain bookstore (here in Canada called Chapters) and read intros and conclusions–and if they are good, then scan the main arguments/policies–of new texts.

Yesterday I checked out Inside Egypt by John Bradley (brilliant book, more on that one in a separate post) and Wittes.

Wittes’ work is well thought out, bipartisan (in the best sense of sustainable for the long run regardless of which party is in charge, akin to the policy of containment during the Cold War), taking seriously both civil liberties and the exigencies of the conflict, critiquing both current deadlocked camps. In other words, it has sadly zero chance I would bet of ever getting implemented.

Wittes’ Brookings page is here with links to a number of articles of his on the subject. The central argument of the text is that what is needed is a Legislative Lens to this issue contra the Republicans (who have relied exclusively on executive power/privilege) and liberals/Democrats/libertarians who have countered with the Courts.

As Justice Scalia said in the Hamdan case, the failure is on the part of Congress. It’s Congress’ job to set this frame and guide this policy. The executive can not be trusted with no check on power–see the Bush administration, torture, indefinite detention, rendition, black hole sites, and the rest. The Supreme Court has repeatedly undercut their efforts on Secret Tribunals, allowing prisoners in Gitmo to use DC courts. But they have not and can not enforce such measures. SCOTUS is not built to deal with this issue. And as Wittes correctly (and rather bravely in the face of our current fundamentalist so-called originalist legal discourse) points out, the Constitution gives no real clarity on this point. Hence the structural inability of SCOTUS to be anything other than a check. But not the signer as it were.

Contra (Bushian) conservatives, he criticizes the administration for indefinite detention, lack of legal rationale other than the indefinite extension of war powers (nearly a decade into this thing). Contra the left, he does think that they need to more carefully consider that this War is not the same as previous ones and automatic de facto assumption of simply fitting into the previous legal structures/rationale is not necessarily the best option.

Check out this article outlining a Tribunal Courts (a la the right) with massive oversight and defendant rights historically granted in the common law tradition (a la the left/center).

The rest of the book lays out some sane policies on how this legislative umbrella should look: detention, surveillance, terror courts (some really sharp points on that front) and the like.

But even with any possible disagreements as to the exact nature of the legislation on any/all of these specific issues, I don’t think minus those who simply wanted unchecked/authoritarian powers for the presidency (The Mitt Romneys, Dick Cheneys, and Hugh Hewitts of the world) consensus should be built around the notion that it is Congress that must solve this lack of a legal framework in the Long War.

Here is a video Wittes with similar counter-consensus smarts on reforming judicial nominations:

Gitmo: Canadian Style

Big news out here on the spreading of the Bush-Cheney-Rumsfeld illegal detention regime to Canada. From the CBC:

The curtain will be drawn back this week on the normally top-secret operations of Canada’s biggest spy agency, as lawyers for Omar Khadr, the 21-year-old Toronto-born man detained at Guantanamo Bay, Cuba, are expected to release video footage of his interrogation there by agents of the Canadian Security Intelligence Service.

Four formerly classified DVDs, to be released Tuesday, show CSIS questioning Khadr, then a teenager, at the U.S. military prison at Guantanamo Bay, where he has spent the past six years.

Background on Khadr’s case here.

1)He was 15 when captured.

2)His charges were thrown out and then he was labeled in the limbo/illegal position of “enemy combatant” and has languished for years in Guantanamo Bay. Like too many others.

And this (my emphasis):

Journalist Kirk Makin, writing in the May issue of Canadian Lawyer, sympathizes with the plight of Edney, the Edmonton lawyer representing Omar Khadr because he had to wait four years before getting a face-to-face meeting with his client.

His case is clouded of course by his minor status (at the time of his capture that is) and the environment of his upbringing:

The complexity of the Khadr case is heightened by his upbringing as the youngest in a family of al-Qaeda sympathizers who considered religious martyrdom, being a suicide-bomber, as a supreme calling. Omar’s father, Ahmed Said Khadr, was an associate of Osama bin Laden and a reputed financier of al-Qaeda operations. He was killed in October 2003 by Pakistani forces. One of Omar’s older brothers, Abdullah Khadr, is in jail in Toronto and is fighting a U.S. extradition request for terrorism-related crimes.

Khadr it is charged threw a grenade that exploded killing a US soldier in Afghanistan in 2002. The firefight is described in the above link.

This case along with the rendition of innocent Syrian-Canadian Maher Arar has brought Canada into the US’ orbit of illegal detention facilities, lawlessness, and torture, shaming her in the process, undermining the rule of law and the moral standing of liberal democratic governance.

Published in: on July 14, 2008 at 10:08 am  Comments (3)  
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Scheuer II: Criticisms

Following on the last post, some criticisms of Scheuer’s work.

The largest and most glaring is that while Scheuer properly notes the level of anti-American (anti-American FP) in the Muslim world, this does not translate into support for al-Qaeda.  In fact, given the recent spate of barbarism from AQ (particularly Zarqawi in Iraq, esp. between 2005-2007) support for the group has plummeted  in the Muslim world.  There simply is no desire for a caliphate with or without bin Laden at the head.  Guerrillas can self-sustain in this networked age without populace support but they will never gain power.

Another point that Scheuer underestimates is the degree to which there have been some real successes in terms of coordinated attacks on the terrorist networks (finance, communication, delivery).  Always derided by the right as the left fighting terrorists as if they were “criminals”.  As if their subjective state mattered as compared to their tactics and stated goals (both of which are clearly articulated by bin Laden publicly).

Fareed Zakaria has a piece today on this very theme. Zakaria also cites this excellent article by James Fallows from 2006.

Fallows says the war against (so-called) Islamic terrorism if there ever was one is already one.  Scheuer says we are losing.  I think both are in a way correct.  We are losing vis a vis lacking a strategy of aiming directly at AQ.  They are reconstituted in many regards (though not all) in Pakistan.  And still very dangerous.  The AQ ideology has morphed and virally spread and now the future of such terrorism will come from smaller, self-financed autopoietic cells around the world.

AQ-Central in Pakistan is hobbled (thank God) by its self-defeating proposition that each attack has to be bigger and badder than the last one.  And it would be hard to top 9/11.  Scheuer in this article I think seriously underestimates the damage (via their own theory of wanting to evoke over-reaction) that terrorists attacks on infrastructure, public events, and the like but not a made-for-tv catastrophic nature as say 9/11.

We are winning insofar as they do not pose a threat to the entire country.  Fallows’ article highlights that the greatest potential threat is over-reaction (see:  Iraq).  If for instance another attack did occur, the threat to the republican civil liberties order would be serious.

And also, as a point leaning more towards Scheuer, while it’s true as FZ says these groups can do damage, serious damage but if we don’t let me, they can’t destroy us, that is not the same as saying the Middle East and larger Muslim world (say into Pakistan) will not be roiled with convulsive violence for the next decade plus.  People may not want a Caliphate.  The US will not totally accept some neo-isolationist posture and withdraw completely from the region, but that arena will be rocked with violence for sometime to come.  And the US is bound to get pulled into some of that conflict.  Which if improperly handled could easily re-ignite support for terrorism (as Iraq gave new life to a terrorist system on life support prior to the invasion and occupation).

A key going forward will be (again on the theme of over-reaction) learning to live with the emergence of anti-US but not AQ-friendly regimes in the region.  The tyrants are going to have to fall at some point and God only knows what is on the other side of that happening.   But if we become locked into this loony right-wing nonsense about a Clash of Civilizations/they hate us for our freedom/Islamo-fascist worldwide conspiracy united front, then whether or not bin Laden/AQ are the beneficiaries, their basic theory of bleeding the US dry will continue apace.

To conclude, Zakaria’s closing words:

In a sense, the warriors are pessimists. In the old days they were scared that communists would destroy America. Today they rail that Al Qaeda and Iran threaten our way of life. In fact, America is an extremely powerful country, with a unique and extraordinary set of strengths. The only way that position can truly be eroded is by its own actions and overreactions—by unwise and imprudent leadership. A good way to start correcting the errors of the past would be to recognize that we are not at war.

In other words, the US is in wars not at war.  The US is in a war of discipline not a war of survival to borrow Shelby Steele’s terminology.  However allies of ours will be (that is at war/war of survival).  For Scheuer that shouldn’t matter given his tendency towards realism/isolationism/no foreign entanglements.  For others, the question then becomes how intelligently to operate given the risk of over-reaction as a self-inflicted suicidal wound both strategically and to the republic as a whole.

Balkin on Obama on FISA

Not good. Better than McCain, but not sure that is really a compliment.


Most Americans don’t realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive’s ability to wiretap and engage in much broader searches of communications than were permissible under the law before. It essentially gives congressional blessing to some but not all of what the executive was doing under President Bush. President Obama will like having Congress authorize these new powers. He’ll like it just fine. People aren’t paying as much attention to this part of the bill. But they should, because it will define the law of surveillance going forward. It is where your civil liberties will be defined for the next decade.

While everyone in the b-sphere (especially irate netroots/progressives) the real issue is the first half and the extension of the National Surveillance State.

And this conclusion, mark these words:

If you really care about civil liberties in the National Surveillance State, you have to recognize that both parties will be constructing its institutions. The next President will be a major player in its construction, as important if not more important than George W. Bush ever was. That President will want more authority to engage in surveillance, and he’ll be delighted for Congress to give it to him officially.

Countdown video on the subject h/t Daily Kos:

On God Damning America

On relevant background between Wright and Obama here.

Video here of Wright’s sermons.

This is the video of the Brian Ross report on Good Morning America highlighting two controversial sermons by Dr. Jeremiah Wright, Obama’s pastor (very recently retired).

Direct quotations here via Political Punch.

One following immediately in the wake of 9/11 has this to say:

After 9/11, Wright said, “We bombed Hiroshima, we bombed Nagaski and we nuked far more than the thousands in New York and the Pentagon, and we never batted an eye…America’s chickens are coming home to roost.”

Now the geopolitical point Wright is trying to express (or should be) is that al-Qaeda’s (al-Qaeda 1.0) war against the US is due (in part) to US foreign policy. Every statement by bin Laden and Zawahiri mentions supporting the Chinese over the Uighurs, the Russians over the Chechnyians, the Israelis over the Palestinians, the Arab dictators over the masses, etc. etc. It’s also due to their fanatical (mis?)reading of their religion, which Wright does not acknowledge and should.

But the geopolitics aside, this is abysmal pastoral leadership. All of the above may be true (or at least have some truth in it) but the proper Biblical response to mass slaughter so raw in a communal worship setting is first and foremost lament and sorrow. Whatever reflections need to happen about the causes and possible complicity cause/effect need to come after grieving.

So no defense of the indefensible on that point.

Now the other one is much more intriguing to me. (more…)

Published in: on March 14, 2008 at 10:17 am  Comments (4)