It’s about time for another podcast, and the Sanity Squad has obliged. Join the iconoclastic and indefatigable Dr. Sanity, the illuminating and incisive Shrink, the inimitable and yet somehow indescribable Siggy, and me (or, for the sake of alliteration, I) as we grapple with the current state of internecine affairs in Gaza.
Dying to leave: Palestine, Lahore, and fanaticism
Donald Sensing notes that since 2000, the beginning of the Second Intifada (which followed the breakdown of Camp David, when Arafat failed to miss an opportunity to miss an opportunity), Palestinians have desired to escape from Gaza and the West Bank in greater numbers. Many have filed to leave, but lately a Muslim cleric—actually, the Palestinian Authority’s chief mufti—has become alarmed at the prospect and issued a fatwa forbidding them to do so.
The desire to get away is hardly surprising; the place has been mired in ever-escalating ruin and murder for quite some time now. I remain convinced that the majority of people (even Palestinian Muslims, who’ve been brainwashed into a cult of death and dying for a long time) still want to live and have a more pleasant experience while they’re about it. Emigrating from Palestine probably sounds like an excellent way to do that.
I’m also not surprised that the PA cleric issued a fatwa to try to stop them, although I have no idea how much he will be listened to. The prospect of the local population shrinking down to near-nothingness would be an interesting twist on the old saying, from “what if they gave a war and nobody came?” to “what if they gave a war and nobody stayed?”
The PA cleric’s admonition rang a bell with me, and I realized that sound emanated from what would appear to be an unlikely source: Gandhi. Yes, folks, that man of peace (whom I’ve written about at great length before, here), had a similar message in a similar time of civil war.
Of course, Gandhi’s motive was utterly different from that of the PA cleric; you might say it was the opposite. But the effect of his plea—if heeded—would have, strangely enough, been the same: to keep potentially victimized people from saving their own skins, and to what purpose?
Gandhi was speaking to Hindus on the occasion of the partition of India and Pakistan, an event marked by migrations and horrific violence on both sides. Gandhi, who had opposed partition, reacted in the following manner:
During [Gandhi’s] prayer meeting on 1 May 1947, he prepared the Hindus and Sikhs for the anticipated massacres of their kind in the upcoming state of Pakistan with these words: “I would tell the Hindus to face death cheerfully if the Muslims are out to kill them. I would be a real sinner if after being stabbed I wished in my last moment that my son should seek revenge. I must die without rancour. You may turn round and ask whether all Hindus and all Sikhs should die. Yes, I would say. Such martyrdom will not be in vain.” (Collected Works of Mahatma Gandhi, vol.LXXXVII, p.394-5) It is left unexplained what purpose would be served by this senseless and avoidable surrender to murder.
Even when the killing had started, Gandhi refused to take pity on the Hindu victims, much less to point fingers at the Pakistani aggressors. More importantly for the principle of non-violence, he failed to offer them a non-violent technique of countering and dissuading the murderers. Instead, he told the Hindu refugees from Pakistan to go back and die. On 6 August 1947, Gandhiji commented to Congress workers on the incipient communal conflagration in Lahore thus: “I am grieved to learn that people are running away from the West Punjab and I am told that Lahore is being evacuated by the non-Muslims. I must say that this is what it should not be. If you think Lahore is dead or is dying, do not run away from it, but die with what you think is the dying Lahore”¦
“Die with the dying Lahore” is a phrase that resonates with the ring of fanaticism. The PA mufti is also a fanatic, dedicated to an idea of war that is very different from Gandhi’s. Gandhi was a fanatic dedicated to an ideal of peace—but one that uses methods that run so counter to human nature it can never be realized on earth, and in the name of that dream he made suggestions that can only be described as insane.
Despite the desire of most people to continue living, human beings can—and regularly do—lay down their lives for a greater good. That is something we all applaud, and we call those people “heroes.” But there is nothing heroic in staying in a failed and miserable country being torn apart by a civil and/or gang war between corrupt and vicious leaders, just as there is nothing heroic in being asked to stay in a country to be slaughtered by marauding mobs. Fanatics will sometimes ask it of us, nevertheless.
Stand by your man?—Ségolé¨ne Royal, Hillary, and political wives
The French legislative elections were a victory for Sarkozy and his party, but not the sort of landslide that was predicted. PJ’s correspondent in Paris, Nidra Poller, reports that the Socialist Party is far from moribund.
Ségolé¨ne Royal, failed Socialist candidate for President, took the opportunity to drop what was not much of a bombshell, since rumors had been swirling for months: the news that she and her—er—partner Francois Hollande are separating (they can’t be divorcing because they were never married, despite having been together for longer than most marriages these days—about thirty years—and having four children).
In classic French fashion, she announced that he was having an affair. In classic American fashion, she announced that she is releasing a book about her campaign in which she tells, if not all, then at least quite a bit about her marital woes.
Royal’s situation points out some of the pressures of the political marriage (or marriage equivalent), especially one in which the personal merges with the public. Royal and Hollande were not just quasi-spouses, they were colleagues, both leaders in the Socialist Party and rivals for the top position. That gives them a slight resemblance to another highly political couple whose sailing has been far from smooth, Bill and Hillary Clinton. The difference (aside from the fact that the Clintons are married, and remain so) is that the Clintons’ political ascendances worked in sequence, not simultaneously, and so they were probably able to avoid being rivals in the same way as Royal and Hollande.
Even without such overt rivalries, politics can be very hard on marriages, quasi or otherwise. In the olden days of my youth, when divorce was the kiss of death for an aspirant to high office, couples made various sorts of practical and emotional compromises to stay together despite affairs and incompatibilities, and the fact that they might have separated but for the political ambitions of one of their members (back then, it was almost always the man). Politicians, being attracted to power (among other things), were also fairly notorious for their attraction to one of the perks of power, sex (none other than the not-so-telegenic Henry Kissinger was referring to this when he said, in those pre-Viagra days, “Power is the ultimate aphrodisiac”).
Political wives have traditionally had to put up with quite a bit of carryings-on, and to keep a stiff upper lip as they did so (think Jackie Kennedy, Lady Bird Johnson, Eleanor Roosevelt). Their husbands’ affairs might not have been common knowledge, at least, so they were spared the public humiliation of Hillary Clinton, but privately it must have been hard. As this piece on Lady Bird says, however, she didn’t consider herself a martyr:
[Texas governor] Connally wrote, “[Lady Bird] handled the affair, I suppose, as well as such things can be handled: by behaving as if there were nothing to handle.” Lady Bird has always refused to play the role of the wronged wife. “I am not a saint,” sighed Lady Bird during an interview, implying that she bears some responsibility for the problems in her marriage. “All I can say is I had a great love affair. No matter what, I knew he loved me best.”
That’s one way to look at it, I suppose, although not the way most women today would see it. But it’s the way most old-fashioned political wives navigated through a difficult situation.
And in deed, if not in her heart (and who knows, despite constant public and press speculation, what is actually in her heart?), Hillary Clinton has followed in their footsteps and in the footsteps of other political wives, repairing—perhaps for the sake of ambition, in this case hers—a relationship that could have been irretrievably broken.
Royal has left her man, it seems—or perhaps she had no choice in the matter, and he left her. But in a touch of irony, Hillary actually has “stood by her man,” as in the Tammy Wynette song she famously (and sarcastically) quoted in a “60 Minutes” interview during her husband’s 1992 Presidential campaign. One thing is for sure, however: she hasn’t “stayed home and baked cookies and had teas,” another Hillary quote from that era—although many of her enemies probably wish she had.
[NOTE: By the way the linked article on the Johnson courtship, wedding, and marriage makes fascinating reading.]
The eyes have it: Atta and company
Over two years ago I wrote a post about Mohammed Atta’s eyes. In it, I quoted an airline employee who waited on Mohammed Atta early on the morning of 9/11, and described him thusly:
It was just the look on the one man’s face, his eyes”¦everyone in America has seen a picture of this man, but there is more life in that photograph we’ve all seen than he had in the flesh and blood. He looked like a walking corpse. He looked so angry. And he wouldn’t look directly at me.
Atta had a look in his eyes that seems to have been similar to the expression described by noted criminologist James Gilligan as characteristic of many murderers; what he calls the expression of “dead souls.” Here’s what I wrote about Gilligan in that earlier post:
Gilligan describes looking into the eyes of men who appear to have had the humanity scooped out of them. These men would kill (and did kill) with little provocation or remorse. Their eyes told the tale. Not all killers are like that, of course; some seem to retain elements of what we would regard as normal human emotions. But Atta clearly appears to have been a member of the subset Gilligan describes as “dead souls.” We don’t know how they got that way, and although Gilligan has some ideas about commonalities they all share (fairly substantial abuse and shame in childhood), no explanation exists. Lots of people are abused and shamed; few (fortunately) grow up to become cold-blooded killers.
Yesterday in London seven men were sentenced for their roles in the “dirty bomb” terrorist bombing plot. Take a look at the photos of the seven. Take a good look; especially their eyes.
And here’s the mastermind of the plot, sentenced earlier.
Gaza: where are the good choices?
Recent developments in Gaza indicate what happens when broken-down, hate-filled, dysfunctional states gain autonomy.
So what are the choices for the West in dealing with such societies? Either (a) install a (hopefully) relatively benevolent dictator of your choice, who is going to hardline it and perpetrate human rights abuses to consolidate power and suppress this sort of movement and probably be overthrown if he doesn’t do it ruthlessly enough; or (b) leave illiberal democracy and/or violence to take its unrestricted unguided course and at least know what you’re dealing with and try to respond defensively to it; or (c) take a firm hand a la occupation and try to guide it, laboriously and painfully, and at great cost, to liberal democracy, and have the Left and much of Europe and the Third World denounce you as imperialist dogs.
That’s it. Those are the choices. There is no “good” ones, there are just less-bad ones, and a great deal of disagreement on which is the least bad.
The NY Times: eyeless in Gaza
Today’s NY Times article about the Hamas takeover of Gaza misses an awful lot.
The situation: in a brutal power play, the Islamic terrorists of Hamas violently take over total control of Gaza—one of the most torn and dysfunctional welfare state on earth—from the previous “unity” government. The Iranian-backed Hamas’s raison d’etre is power, terror, and the destruction of Israel, plus an agenda to install a more fundamentalist version of the Muslim religion to the Palestinians who live there and who previously had remained relatively secular and worldly.
Right now it all seems a disaster for the Palestinian people, Israel, Egypt, the West, the “peace process” (or what’s left of it; in my opinion, very little), and humanity in general. However, some think good will ultimately come from it (of course, those same people somehow think that if the West Bank does better under Fatah than Gaza does under Hamas it could force the latter to make peace with Israel; I say, dream on).
And what can the NY Times find to say about it? Let’s start with the headline: “Gaza is calm after Hamas gains control.”
Well, I suppose so. But a headline not only sets the tone of what a story is truly about, but editors are aware that for many people who read only headlines and not the article, it sets the sole impression. And one thing I think we can safely say is that the Hamas takeover of Gaza is not primarily about calm.
Now take a look at the article. The very first sentence is about the calm. What’s the second sentence about? Why, President Bush, of course:
The West Bank and Gaza territories that President Bush said he wanted to see become an independent Palestinian state before he left office appeared torn asunder.
Actually, this is a Palestinian state, although it’s hardly a truly independent one, since it relies on a combination of welfare, Iran, and the country it (and Iran) wishes to destroy, Israel. Politically, Gaza is fast becoming another Iranian vassal like the previously thriving but now supremely messed-up Lebanon (which became messed up with the advent of Palestinian leader Yassir Arafat, so the whole thing can be heard as a sad little roundelay).
Read the whole article. There are only two suggestions of what Hamas really is, and they occur late in the 1600-word piece.
The first is rather subtle; a quote from a Hamas spokesman who told Hamas radio, “The era of justice and Islamic rule [emphasis mine] has arrived.” The second is the following sentence:
The United States, Israel and the European Union consider Hamas, which seeks Israel’s destruction, a terrorist group.
Isn’t that put in a nicely post-modern way?
Interestingly, though, merely by reporting the facts, the Times inadvertently manages to cast Israel in a positive light. Israel, that Little Satan of the apartheid fence, is planning to protect the West Bank (which it still occupies). The hapless Olmert is planning a trip to the US, and:
….is expected to tell Bush that Israel favors sealing off the Israeli-occupied West Bank from the infection of Gaza, continuing to prevent contact between them….Israel would also like to confront Hamas with the responsibility for governing Gaza: providing jobs, food and security for its people.
Tough love for Hamas. And here’s some possible good news for Fatah:
Israeli officials suggested that Israel would work with Abbas and a Fatah government in the West Bank, and could gradually hand over to it the remaining Palestinian tax revenues, about $562 million, withheld since Hamas took power a year ago in March. ”To give the money to a Hamas government would be reckless,” one senior Israeli official said. ”To give it to a Fatah government is an opportunity.”
Gaza and the West Bank degenerated dreadfully under PLO rule. When Arafat finally died, he left not only a power vacuum but a totally corrupt state and a people who had long been fed a toxic combination of hatred, deprivation, corruption, violence, and entitlement.
And into that power vacuum rushed, not surprisingly, Hamas. Many predicted that this would have the positive result of revealing the true face of the Palestinians and allow the world to see them as they really are, and even possibly to do something about it.
And that might happen. The Arab League is none too happy about these developments. Secretary General Moussa told CNN “Arab League members are very angry with the Palestinians for what they have done to themselves and their cause.” It will be interesting to see whether the Arab League decides to take any action. But whatever they do, it’s unlikely to bring calm, at least in the short run.
The al-Marri case and beyond: what do you do with a suspected terrorist? (Part III)
Disagreements on how to deal with suspected or actual terrorists who are in our custody rest on some basic assumptions, legal and otherwise. The first of these is whether or not we are at war or the equivalent of war, or whether we are at peace. The second is how to treat actual or suspected enemy operatives (combatants, agents, terrorists, or otherwise) in times of war or its equivalent.
So, are we at war? The Constitution is mum on the definition of war, but it was rarely an issue until recently. Everyone knew what war was; despite rhetoric such as the “war on poverty,” wars were by their very nature armed conflicts between nation-states (usually but not always declared), because only nation-states had the means to organize the armies required to do any sort of meaningful damage, and only nation-states had the motivation to go to war. Insurrections and rebellions likewise were ordinarily open armed conflicts between groups that were readily identifiable and treated under the laws of war rather than civilian law, for similar reasons.
It is only recently, with the combination of modern technology and modern communications, that a group such as al Qaeda—never envisioned by the framers—could have been formed. Its hallmarks are the following: (a) international and broad in scope and numbers (b) political in aim (c) military and quasi-military in training (d) secret and clandestine, with no military uniforms or designations, or need to engage forces on a traditional battlefield (e) exceptionally brutal, abiding by no conventional law of war (f) access to modern weaponry and technology (g) access to modern communications, internet and other (h) access to modern transportation and immigration laws, which allow foreign nationals relatively easy entry to this country (i) religious and otherworldly in belief and motive, and therefore without the usual deterrents, including that of self-preservation (i) targets are universal: military, civilian, economy, and infrastructure (j) sworn to our destruction.
All of these characteristics combine to make a group such as al Qaeda, and its many offshoots and allies, especially dangerous and seemingly unique. But law can evolve to deal with something new; that’s its very nature. All one has to do is to take precedent and see how it fits the new situation.
And that’s where definitions of words such as “war” and “combatant” come in. Judges who interpret statutes and case law do this sort of thing all the time; the way these things are ordinarily decided is by looking at the purpose behind the original legal definition of the term, and seeing whether that purpose is served by an expansion to the new situation.
That process is often a difficult one, in which judges can differ greatly. Each time a law is expanded to meet a new situation we are in terra incognita, and yet there’s no choice but to try to do it or the law will be inadequate to meet our needs and the needs of our society.
So, are we at war, and are al Qaeda members such as al-Marri unlawful enemy combatants? I believe the answer is yes and yes. The characteristics of al Qaeda listed above make its members and sympathizers the equivalent of an enemy in war, and an especially pernicious one because it abides by no rules of war and always operates clandestinely, making all of its members not only enemy combatants, but illegal enemy combatants.
How are such people usually handled? The situation is nothing if not complex (see this). They cannot claim POW status, but should nevertheless be treated with basic human decency (that is, not expressly tortured).
Congress has passed laws regulating these very situations, and like all statutes these Acts are open to judicial interpretation. The Military Commissions Act of 2006, for example, sets up military entities that would govern cases of illegal enemy combatants, and would follow amended rules of evidence based on those for general court-martial but excluding certain protections such as the right to a speedy trial (if you’re interested in a very detailed description of the rules of evidence for the commissions, see this, pages 9 through 19).
Al-Marri has never faced such a commission; he has been held indefinitely in military custody in this country without a trial, as have many of the Guantanamo prisoners. This is in line with the common procedure of holding prisoners of war “for the duration” in a conventional war, but of course this war is not conventional. Although the duration of any war is never known at the outset, this particular war is almost universally expected to have a much longer duration than a conventional war, and many people (myself among them) consider this indefinite holding of alleged enemy combatants to be especially problematic for that reason.
When Congress passed the Military Commissions Act it provided for a procedure by which detainees could be designated as “unlawful enemy combatants” (see page 5 here). A Combatant Status Review Tribunal was envisioned, but (at least, as far as I can see in the relevant documents) specific rules for this body, and guidelines for a timeline by which those accused must be thus designated, are absent. Although these failings represents serious flaws, the problem could (and, in my opinion, should) be corrected without throwing out recourse to the military tribunal system as a whole.
The civilian courts have always been recognized as inadequate to deal with war conditions, but this doesn’t mean that courts and trials of some sort are innappropriate, or that people should be indiscriminately deprived of their most basic rights by whatever courts are deemed appropriate. A person’s entry point into the military commission system, with lesser rights than are guaranteed in the civilian courts, is an especially delicate moment when those accused as terrorists could be vulnerable to governmental abuses of power.
That is why the courts are correct in emphasizing the importance of establishing a proper procedure for the determination of unlawful enemy combatant status. But in establishing this procedure, the full and complete panoply of rights (including generous discovery) that we afford under the civilian justice system no longer seems appropriate (especially in the case of foreign nationals) under the strange circumstances in which we find ourselves: an exceedingly dangerous war against a vicious enemy that does not play by any of the rules and is trained in covering its tracks and using the guarantees of our civilian system against us.
In this regard, the order establishing the military commission that tried the Lincoln conspirators (citizens all) is instructional:
The civil courts have no more right to prevent the military, in time of war, from trying an offender against the laws of war than they have a right to interfere with and prevent a battle. A battle may be lawfully fought in the very view and presence of a court; so a spy, or bandit or other offender against the law of war, may be tried, and tried lawfully, when and where the civil courts are open and transacting the usual business.
….One enemy in the power of another, whether he be an open or a secret one, should not be punished or executed without trial….The law of nations, which is the result of the experience and wisdom of ages, has decided that jayhawkers, banditti, etc., are offenders against the laws of nature and of war, and as such amenable to the military. Our Constitution has made those laws a part of the law of the land.
Whatever partisans of either stripe may argue, the law on illegal enemy combatants is far from clear, and at any rate it was developed prior to the fact situation that exists with modern-day international terror organizations. Congress’ Military Commissions Act of 2006 was passed to address this gap, but it needs some fine-tuning to function in a way that preserves the maximum rights possible commensurate with preserving the public and national safety.
Here are my recommendations—which undoubtedly will need some fine-tuning themselves:
Establish specific rules of evidence and timelines for the Combatant Status Review Tribunals that were envisioned under the Act and for detainees such as al-Marri who were held prior to that Act. Those who were clearly illegal combatants fighting us in foreign lands (al Qaeda members under arms but without uniforms in Afghanistan, for example) fit a simpler and more easily provable set of facts than al-Marri, and their designation with this status might at times be fairly straightforward. For people such as al-Marri, however, an alien who appreared to be peacefully residing in this country but who was alleged to have been an al Qaeda member and to have had al Qaeda contacts, and against whom evidence of planned terrorist activities has been amassed, the standards for declaring him an illegal enemy combatant must be stricter because the potential for error and abuse is greater.
But since the danger an al Qaeda member freely residing in this country represents is greater than that afforded by any ordinary criminal and the dangers of his being privy to our generous discovery procedures during a civil trial is likewise very great, the standards of protection afforded to such a person should not reach the levels of our civilian criminal justice system, especially if he is not a citizen nor a long-term legal resident (al-Marri is neither). In deciding whether a person thus accused is an illegal enemy combatant there might be a sort of middle-of-the-road procedure, perhaps something resembling traditional military courtmartial rules to determine this question only, and there should also be some time limit during which the accused must be granted this hearing.
What about citizens? The truth is that presently there are very few citizens held in this manner. Jose Padilla was one, but he is no longer in military custody (his case has had so many twistings and turnings that its Byzantine course would take a book to describe). Hamdi is another, but he is no longer being held at all, but was released to go back to Saudi Arabia and renounce his citizenship (where he grew up, by the way; he was a citizen because his Saudi parents were here when he was born, but they returned there when he was a child). Hamdi was picked up on an Afghan battlefield, and was only later determined to be an American citizen by accident of birth, and was never alleged to be plotting terrorism in this country.
The paucity of citizens in custody under the post-9/11 powers indicates that no Reign of Terror has been perpetrated on citizens by the Bush administration. But that does not mean that better safeguards should not be built into the operative laws; they should. These safeguards would best be served by making the government prove any accused US citizens to have been members of organizations such as al Qaeda, or prove their extreme dangerousness as terrorists plotting largescale attacks, under rules of evidence that are even stricter than those afforded aliens such as al-Marri, before being turned over to any military tribunal or detained indefinitely.
Whether these rules for determination of illegal enemy status for citizens ought to be subject to the full panoply of protections under our civilian law or whether they should come under military control at the outset is a knotty question, and one which I must admit I have not settled in my own mind. But I believe it is the only situation that might best be served by the civilian criminal system. At any rate, although cases involving the apprehension of citizens for terrorist activities or membership—and thus for illegal enemy combatant status—have been rare so far, it is still advisable to make the rules for such determinations much clearer and somewhat more protective than they are now.
The case for treating citizens who are aligned with groups such as al Qaeda as terrorists subject to military rather than civilian law rests on the idea of their being enemies of the state in a situation that is a war equivalent. The order establishing the military commission that tried the Lincoln conspirators addressed the issue of public vs. private enemies:
….That Booth and his associates were secret active public enemies [emphasis mine], no mind that contemplates the facts can doubt….[Booth] was not an assassin from private malice, but that he acted as a public foe….My conclusion, therefore, is, that if the persons who are charged with the assassination of the President committed the deed as public enemies, as I believe they did, and whether they did or not is a question to be decided by the tribunal before which they are tried, they not only can, but ought to be tried before a military tribunal.
These issues are not easy ones to solve. But the answers lie in a creative balancing of the two competing needs: to protect national security and to to protect the rights of the accused. Neither will be done perfectly, and both are extremely important. But without the first the second will be moot, because if we lose the war against Islamic totalitarians, human rights will be undermined in ways that will make Guantanamo seem like a country club and this whole debate as relevant as discussions of how many angels can dance on the head of a pin.
Sanity Squad: Homo sapiens lied, streptococci died
Another week, another Sanity Squad podcast. Join Siggy, Shrink, Dr. Sanity and me as we discuss the use and misuse of science.
The al-Marri case and beyond: what do you do with a suspected terrorist? (Part II)
In the al-Marri case a Virginia federal appeals court ruled 2-1 that an alien who entered this country legally cannot be seized in the US, declared an “enemy combatant” without having been caught under battlefield conditions, and held indefinitely in military custody without being charged with a crime.
Al-Marri is the only alleged terrorist being held by the US at this point who fits this particular set of facts, and the ruling is limited to those parameters. Nevertheless, it is—as Andrew McCarthy, expert on law and terrorism (and on the history of that famous firewall) writes today in National Review Online—a troubling case of overreaching by a judiciary which manages to extend rights to a group of people (nonpermanent legal alien visitors) who never had those rights before.
This is not a case of rights previously vested being taken away, as some who cry “foul,” “police state,” (or, in the case of this commenter, “filthy neocon Reich”), allege. As McCarthy—who was the prosecuter in the first World Trade Center bombing case—knows, any such rights for temporary aliens are not Constitutional but are statutory, and Congress has passed several statutes covering that issue in order to take this out of the hands of the civilian court system. The Supreme Court has repeatedly held that the detention of combatant prisoners in times of war has been a military and not a civilian court issue.
But the civilian court in this case has ruled that al-Marri does not fit the definition of “combatant” because he was not taken on a field of war. This is, as McCarthy rightly alleges, an example of what might be called “September 10th” thinking (and in fact, the term is very appropriate, because that was the date of al-Marri’s arrival in the US).
It’s not a question of whether or not al-Marri is a member of al Qaeda; he is, and does not even allege otherwise. It is a question of whether an al Qaeda member such as al-Marri, trained as a terrorist in Afghanistan by that very group, is not to be considered a “combatant” because he wasn’t in a conventional uniform on a conventional battlefield when he was captured.
McCarthy writes:
…the court astoundingly reasoned that because al Qaeda is a sub-sovereign, transnational terror network ”” i.e., it is neither a traditional sovereign enemy like Germany during WWII, nor an extension or militia belonging to a nation-state, like the German saboteurs captured inside the U.S. during WWII ”” its operatives inside the United States must be considered civilians, not enemy combatants, at least in the absence of traditional “battlefield” conditions of capture. As civilians, the judges held, they must either be tried in the civilian courts for terrorist crimes, or be released.
That is simply a preposterous assessment of our present threat conditions, to say nothing of the law. To being with, the president’s commander-in-chief authority is premised on preserving the national security of the United States against foreign threats; it is plainly triggered when a threat is foreign; there is no requirement that the foreign threat come in the form of a nation state.
Those who those who wonder what all the fuss is about. After all, aren’t civilian criminal courts able to deal with this matter effectively? Isn’t it possible to try al-Marri in a regular court of law, present him with the charges against him, and convict him if he’s so very guilty? In other words, what’s the beef?
Just this, as McCarthy knows full well: the civilian criminal courts are set up to try ordinary criminals and their rules of discovery are extraordinarily broad and favor those criminals. “Discovery” is the process by which the defendent’s attorneys—and, therefore, the defendent—gain access to much of the information on which the case has been built. One can easily imagine what an al-Qaeda member could do with this information. This, more than anything else, is a powerful argument against using the criminal justice system for al-Marri.
McCarthy says it well:
That is, our “choice” is either to afford al-Marri—who answered directly to 9/11 mastermind Khalid Sheikh Mohammed and met personally with bin Laden—a proceeding in which he would receive lavish discovery that could be extremely helpful to the people trying to kill us, or to release him so that he could rejoin the jihad and continue trying to kill us himself.
A far more preferable alternative would have been for the court to have allowed the government to label him an “enemy combatant” and to try him in a military court. This would get around the problem of indefinite detention, a phenomenon I agree is very troubling and prone to abuse. Al-Marri would then be facing charges in the proper venue, a legal system that has been deemed good enough and fair enough even for those US citizens who are in the military. If so, it is certainly good enough and fair enough for temporary legal aliens who are members of al Qaeda.
So, what do you do with a suspected terrorist? Try him in the military courts.
[Part III—the final segment in this series—coming soon.]
The al-Marri case and beyond: what do you do with a suspected terrorist? (Part I)
Our legal system is remarkably flexible. No law, or set of laws, can foresee the future; the best the law can do is adapt to changing circumstances.
How that adaptation occurs can vary; sometimes it’s through legislation and/or acts of Congress, sometimes by executive order, sometimes through judicial decisions that overrule previous ones, and far less often through Constitutional amendment. Often it’s by a combination of approaches in which the courts are called on to interpret and rule on the acts of the other branches of government.
In the post-9/11 world one thing has been clear: the system that was in place at the time (including the much-criticized firewall) failed to function adequately to prevent the attack. Since then the efforts of the Bush administration—whether you agree or disagree with them—have focused on correcting that situation to make it more likely that we can prevent subsequent attacks.
But our criminal justice system quite clearly never envisioned anything that has the scope that modern-day terrorists, combined with modern-day Western technology—including the possibility of nuclear weapons—could wreak. Islamic totalitarian terrorists are not ordinary killers, although they sometimes appear to resemble them. But their goals include a stated desire to bring down our government and/or our economy, as well as our way of life.
Some think they are overreaching, that they have no way to accomplish their aims and that it is ludicrous to think so. Others think failing to take them seriously represents a lack of imagination on our part, and that we are far more vulnerable than we care to think.
Terrorists—even Islamic totalitarian terrorists—are not a unitary bunch. Some are state-sponsored, which would put them somewhat in the league of traditional spies. More often they are connected with trans-national worldwide organizations such as al Qaeda that have dedicated themselves (at least in their own minds) to our destruction. Terrorists can also be freelance individuals, but those fitting that description don’t seem to be very numerous, and their acts so far (except for the anomalous and non-Islamic Timothy McVeigh) seem to be of much smaller scope. The latter group of individuals, however, are the ones who most clearly fall under the aegis of our traditional criminal justice system.
The truth is that present-day Islamic jihadi terrorists occupy a gray and exceedingly non-traditional area because of their ambitions and reach, and the Bush administration’s actions in setting up Guantanamo and dealing with people such as al-Marri though the military system (he was interned in military custody in South Carolina) are attempts to tackle this new situation in a way that would protect us from future large-scale attacks that could undermine our very way of life. Because of the scope and reach of modern terrorism, the administration feels it necessary to suspend some of the protections of the traditional criminal justice system in dealing with suspected perpetrators and/or planners.
This approach is inherently problematic, and concerns about it are well-placed. The hallmark of our country is the supreme importance we place on guaranteeing individual liberties. It is often remarked that our criminal justice system is one that accepts the fact that every now and then a guilty person will go free because of restrictions placed on that system in order to preserve the rights of all.
That said, though, the military has always had its own justice system running parallel to the civilian one, with rules of evidence that don’t have quite the same built-in protections. In addition, times of war have often brought suspension of those protections—anyone who reads the criticisms of Lincoln’s actions during the Civil War knows that he suspended the writ of habeas corpus and held civilians (and in fact citizens, not just aliens like al-Marri) in military custody.
Habeas corpus is mentioned specifically in the Constitution, in Article I, Section 9 which says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” So, “public safety” has always been recognized as a reason to relax the rules.
“Rebellion” and “invasion,” like all other terms, require legal interpretation. Lincoln certainly felt the Civil War qualified, and he justified his acts with the following statement, among others:
Are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?
The idea, both in the Constitution and Lincoln’s words and deeds, is that some threats are so great that we must be willing to give up a small portion of our rights temporarily in order to make sure they can endure more permanently when the threat is past. The problem now, as then, is whether the present threat is great enough to justify such an approach. The answer, of course, is an ambiguous one, often decided by one’s political leanings. The truth is that no one can say.
The writ of habeas corpus was violated again during World War II when thousands of people of what was then called “enemy ancestry” were relocated and detained simply on the basis of their racial and ethnic background (see this for a relatively concise but thorough discussion of that controversial episode in American history). The subject matter is too complex for a full discussion here, but there are many misconceptions about what actually happened. One not very well-known fact is that citizens of German and Italian ancestry were affected as well as Japanese, and that American citizens of Japanese descent were allowed to live outside of camps as long as they relocated away from designated areas on the West Coast that were considered especially vulnerable. In addition—and most relevant to the al-Marri case—a special prison camp at Tule Lake was set up for non-citizen Japanese resident aliens who were suspected of treason or special dangerousness.
We have now come to believe that these measures were overreactions, especially the relocation of citizens and non-citizens alike (based on racial classifications only) who were not even suspected of any specific criminal or treasonous intent.
World War II was a declared war, and a conventional one at that. The same was true of the Civil War. Is the current situation analogous? Can we be at war with a shadowy organization such as al Qaeda? Al Qaeda certainly thinks so; it declared war on us back during the Clinton administration, and although most people hardly noticed that fact at the time, al Qaeda most definitely made good later on their pledge. But have we declared war on it in return—and, in fact, is it possible to declare war on such an entity?
The Constitution is terse on the topic of war; it grants Congress the power to declare it without defining it. One imagines the founders thought a definition of what entities war could be declared against to be so self-evident as to be unnecessary, but they could hardly have foreseen the confusing situation we face today. The Constitution also mentions that Congress has the power “to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; and the power to make rules concerning captures on land and water.” It was under these powers that Congress enacted the Military Commissions Act, for example (an act which doesn’t apply to the al-Marri case, since he was seized while legally residing in this country). And although terrorism is somewhat similar to piracy, it really is not exactly the same.
The majority of the judges in al-Marri felt that the executive branch had overreached here, and remanded al-Marri to the ordinary criminal justice system. But is that system adequate to deal with the potential al-Marris of the world, and worse? And, if not, what system would be better able to do so?
(Part II coming tomorrow.)
What it takes to get the appelation “warmonger” these days
This headline in the Alaska Report caught my eye as one of the featured stories on Google News: “Warmonger Joe Lieberman says bomb Iran now.”
And what was it that Lieberman actually said? Take a look:
I think we’ve got to be prepared to take aggressive military action against the Iranians to stop them from killing Americans in Iraq,” Lieberman told Bob Schieffer. “And to me, that would include a strike into… over the border into Iran, where we have good evidence that they have a base at which they are training these people coming back into Iraq to kill our soldiers.”
Note Lieberman’s use of the word “prepared.” Lieberman made it clear he was advocating neither an immediate nor a general attack on Iran, but rather a limited strike on specific training camps in Iran if and when it was determined they were being used to prepare fighters to be sent across the border to Iraq to kill US soldiers—an act of war on Iran’s part, I might add. He wasn’t even saying it absolutely should be done, but just that it can’t be taken off the table, and that negotiations with Iran (which he supports) would lack effectiveness if Iran thought it impossible that such a strike would ever be undertaken by the US.
Well, I guess that makes him a warmonger. Of course, if the same had been done in Afghanistan prior to 2001 (and I seem to recall a certain fellow called Bill Clinton trying just that, although in a very limited fashion), perhaps 9/11 and all its gory aftermath would have been prevented.
Many Democrats who now excoriate Lieberman perhaps supported Clinton’s airstrikes way back when. Or perhaps not; some people are consistent in wanting us to shoot ourselves in the foot (or even the heart) for the prospects of an illusory “peace” with the true warmongers: al Qaeda and Iran.
As Clinton said at the time of his strikes: There will be no sanctuary for terrorists. We will defend our people, our interests and our values.
Just to let you know that I am not now now ever was an apologist for Republican excesses, it still irks me that right after those strikes by Clinton, Republicans accused him of the deepest hypocrisy in ordering them, and claimed a “wag the dog” scenario was behind them.
As far as the strikes themselves go, they were an abysmal failure, unfortunately. Very unfortunately. There is still some controversy over whether the Sudanese target was a valid one, or just an aspirin factory; it’s not certain, but the preponderance of evidence seems to indicate the latter (see this article in Slate, for example). On the other hand, it appears that Clinton’s Afghanistan strike missed Bin Laden by mere hours.
The two incidents point up the problems with intelligence, a problem Clinton’s successor Bush experienced during the Iraq war and its aftermath, and that is this: intelligence is always at least partly flawed—-sometimes greatly (if indeed the plant was an aspirin rather than chemical weapons factory) and sometimes slightly (if indeed Bin Laden escaped by only hours).
To some, this means we should never act on intelligence at all. To others (such as myself), it means we should make it our business to improve intelligence both in quantity and quality, because we can’t allow ourselves to be totally paralyzed into inaction by the sure knowledge that some of our decisions will always be flawed.
The messy real world is always like that: flawed. And in that messy world, Joe Lieberman is still correct: negotiations with Iran are a joke if there are no perceived teeth behind them. The paradox is that such talk makes him not a warmonger, but an advocate for a policy that has the only real chance of deterring Iran and ultimately leading to a more lasting peace.
What do you get when a menopausal woman eats Twinkies? (or, another reason boomers will never be known as the second greatest generation)
I don’t know about you, but this phenomenon doesn’t seem like much of an advance to me.
For those of you who aren’t registered at the NY Times website, the article by Elizabeth Hayt is about the fact that middle-aged women have become much more forthright about their menopausal symptoms—even “flaunting” them in mixed company. The headline is a good example of what I mean: “Listen up, everybody, I’m in menopause.”
Well, isn’t that special! Glad to hear it, thanks for sharing.
It’s not that I’m squeamish. Or that I think women should be ashamed or embarrassed to be going through menopause, or that a nice woman-to-woman gabfest on the subject wouldn’t be fun at times. Or that I think the recent proliferation of medical and scientific information on the subject is a bad thing. Or that two women in a grocery store line (one of the situations described in the article) can’t exchange quips on the subject, if it happens to come up—say, if both of them are turning as beet-red as the beets in their carts.
Women discussing menopause in private groups of women isn’t really a new phenomenon, although boomers like to think they’ve invented it, along with just about everything else. There’s something strangely narcissistic, though, about the prospect of women inflicting their personal body functions on all others in earshot. Maybe it’s a way of staying forever young—well, at least, forever juvenile.
And what hath feminism wrought when menopause is used in the classic manner as an excuse for behavior grownups ought to be taking responsibility for? Menopause now seems to be turning into a form of the notorious Twinkie defense, hormonal style:
“A hot flash is an opportunity to get away with saying stuff that you wouldn’t otherwise be able to do,” said Ms. Mahone, the Durham author. “You can curse at people. That’s your moment to get even. Afterward, you can apologize and they’ll understand and feel sorry for you.”
Menopause is the best revenge?