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:

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.

Chait Quote for the Day

Sharp as usual:

It doesn’t matter that Obama never said, or even implied, that legal prosecution should be the sole method of preventing terrorism. The fact that he even mentioned prosecution apparently proves that he has what McCain’s campaign called a “September 10th mindset.”

Yet some logical flaws with this analysis present themselves. (And yes, I realize that the mere fact that I would intellectualize this issue, rather than understanding it in my gut, proves that I too have a September 10th mindset.) First, terrorists often operate in our country, or in friendly countries, which makes military action against them tricky. McCain (through his campaign blog) assailed Obama for favoring “prosecutors rather than predators.” But, when the terrorists are holed up in New York City, as was the case with the 1993 bombers Obama referred to, simply arresting them strikes me as more efficient than leveling their apartment with a drone-fired missile. Second, when terrorists can be found outside the reach of law enforcement, Obama has explicitly proposed to strike them militarily.

And of course this classic (always room for a shot at Giuliani)

I would have thought the example of Giuliani would be inconvenient enough that the McCain campaign would hide him in the closet while they bashed Obama for favoring the prosecution of terrorists. Instead, McCain’s campaign trotted Giuliani out for a press conference call and a round of talk show appearances, possibly because he seems to materialize out of thin air whenever the phrase “9/11” is uttered.

The One Man’s Terrorist is Another Man’s Freedom Fighter

Janeane Garofolo pulls the old line here on Bill Maher. Interestingly enough, without realizing the irony of Salman Rushdie sitting to her immediate left.

Of course Rushdie had a death sentence put upon him by one of these “freedom fighters” (from somebody’s pov)—namely Ayatollah Khomeini. A man the US labeled a terrorist. One man’s….is another’s…..

So her statement is factually quite correct. Take Khomeini. A resistance leader against the Shah’s brutal oppression (notice I said resistance figure which is more neutral than freedom fighter although he was certainly that to many, many who even did not accept his later rule)? Factually yes. A man who used terror and dictatorially formed his own government of oppression? Factually yes.

In other words, what does “one man’s terrorist is another’s man’s freedom fighter” actually mean? I know what the words mean literally. The question is….so what? Objectively it is a true statement, but what does it mean? (more…)

Published in: on September 27, 2007 at 10:10 pm  Leave a Comment  
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