Getting to the pointe

The New Neo Posted on by

This is a pair of my old pointe shoes.

They are from about twenty years ago, the last time I took a ballet class. I threw out the innumerable other ones, myriad shapes and sizes and makes purchased in my longstanding but unfulfilled quest for the perfect pointe shoe.

Dancing on point (or, in the French terminology of ballet, “en pointe”) is one of the elements that distinguishes ballet from other forms of dance in most people’s minds. And yet most ballet training occurs in soft shoes, and men ordinarily never go on pointe. But it’s the thing that most little girls who start ballet lessons dream about, as well as probably being the most misunderstood, painful, and transformative aspect of ballet.

Pointe shoes help a bit in enabling the dancer to perform the strange feat of rising to the very tips of her toes. But it’s actually the foot itself that must be trained and shaped in such a way as to be strong enough to support the entire body on that tiny pedestal. And not just support that body, but support it as it moves through space in an extraordinary way, twists and pivots and turns and balances and even throws itself purposely off-balance at times. And, although dancers are thin, they still have enough bulk and bone and sinew and muscle that their poor feet—and especially the toes—become sorely battered in the attempt.

Nevertheless, the little girl who studies ballet looks forward to the day she will get her first pointe shoes. For me it happened around the age of nine, after several years of training. We waited patiently in a line while the ballet teacher traced in pencil the bare feet of each of us on a special paper she’d laid on the floor, signing each outline with the name of the girl whose foot it represented. The handmade shoes (usually by Italian artisans) arrived a month or two later, shiny and pastel pink satin, and as yet untouched and unmarred. That would not last long, nor would the pristine state of our feet.

Pointe shoes, as you can see from the above photo of mine, are not really foot-shaped. Like the Chinese custom of foot-binding, the idea is to alter nature rather than bow to it. The toes are stuffed into the tapering box and conform to its sleek shape. A typical result is here (not my feet, by the way, I’m happy to report):

Although the effect of dancing on pointe is esthetically pleasing, you can see that the naked unadorned ballet dancer’s foot tends to be anything but. It’s a demonstration of a dirty little secret: like many aspects of ballet, going on pointe hurts. For some aspirants, this is the point (pun intended) at which they leave the study of ballet, perhaps to make a lateral move to modern dance (ordinarily barefoot), perhaps to the pursuit of sports or even couch-potatohood. Others master the discipline of dancing on the tips of their toes and come to ignore the pain for the incredible sensation of having a body that has mastered something both difficult and transcendent.

Is this masochism? It can be, but for most dancers it’s not. Not just ballet, but all sports and many arts (such as, for example, playing a musical instrument) are inherently physical, and they nearly always put the body through movements that are unnatural and stressful for the sake of achievement, or beauty, or both. Human beings seem to be constructed to strive for that sort of thing.

For the duration

The New Neo Posted on by

In my series on al-Marri and beyond, I made some suggestions for taking prisoners in this conflict. They involved the concept of incarcerating people “for the duration,” a standard practice in warfare. But we face a special problem in this particular struggle: how is end of the “duration” going to be determined, and are we prepared to detain people in a conflict that could easily last decades?

It’s true that for any war we never know the length of “the duration” in advance; not exactly, and sometimes not even generally. WWI is a case in point, and a typical one for its times: initially it was thought by most on both sides it would all be over quickly, and yet it dragged on and on, and was ended only by armistice. But it did end after “only” five years (although some would say WWII in some ways represented the unfinished business of WWI).

Our attitudes have changed so much that nowadays, when a war begins, people shout “quagmire” before (or shortly after) the first exchange of hostilities. But there’s a certain point they are making, absurd as it may seem, and that is that the current run of asymmetrical wars against an implacable and religiously fanatical foe, dealing not in regular armies but in guerilla and terrorist tactics, dictate that the wars in which we engage these days will ordinarily be very long, even if the formal warfare between the ordinary armies that might be involved tends to be very short. Failure to recognize that the “informal” hostilities will go on and on (and I think that, in some ways, the Bush administration failed to recognize that in its behavior, even though it paid lip service to it in its rhetoric) is a grievous error.

In addition, the duration is long partly because of the broken societies and political systems involved in places such as Afghanistan and Iraq, and the need to rebuild and change those systems in some basic ways. When WWII began, the Marshall Plan to rebuild Europe was not envisioned as being part of it, nor was the long occupation of Germany and Japan. If you take these events into consideration, that war was very long indeed (we already know it was very harsh and bloody), and the aftermath, of course, included the Cold War and the long struggle involved in the division of the world into free and Communist.

This article about the legal fine points of the war against Islamic totalitarianism points out that, whatever we call the incarcerated terrorists/militants—illegal enemy combatants or POWs (a status they do not qualify for, but could receive if we decided to bestow it)—the “for the duration” conundrum comes into play, and raises the specter of keeping them indefinitely. This is certainly a unique prospect in recent history, and a disconcerting one that makes many (including myself) uneasy. And yet it is difficult to see a way out of it.

We may not be happy with the prospect of a lengthy duration for the hostilities is facing us. But that’s the way it is. The timetable has been set not by us, but by an unusually patient enemy who sees history in terms of centuries, not years.

Abbas and peace: fed up with “dialogue?”

The New Neo Posted on by

Do I detect a new tone in the rhetoric of Mahmoud Abbas, or is it just wishful thinking on my part?

He’s reported to have issued some stinging criticism of his former “partners” in the ill-fated “unity” government of Palestine, Hamas.

Maybe it’s the murder of so many colleagues. Maybe it’s that it got very personal this time—“this bomb’s for Abu Mazen [Abbas],” a video shows men purported to be Hamas assassins (oh, sorry, “militants,” according to the linked CNN article) saying as they plot his murder. Maybe it’s that he sees his opportunity to get some traction as head of the West Bank, a traction that utterly eluded him before as the titular head of the coalition government.

We’ll see. But one sentence certainly had me (and his audience, his followers in Ramallah) applauding: There will be no dialogue with Hamas no matter what.

Sounds about right. Of course, dialogue with Fatah (of which Abbas is the head, heir to founder Arafat), used to be contraindicated as well, and led inexorably to fake peace talks in which Arafat could not accept reasonable offers, and then the horrifically bloody terrorist excesses of the Second Intifada.

Now chickens, as they say, have come home to roost for Abbas and Fatah. They were content to wink at the violence as long as it wasn’t directed at them. I take no joy in this, but my hope is that something about being the target of the viciousness they spawned will cause some sort of sea-change in Fatah itself. A person can hope, right? It would be good to have a true partner for peace, after all these years.

Dying to leave: Palestine, Lahore, and fanaticism

The New Neo Posted on by

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 New Neo Posted on by

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

The New Neo Posted on by

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?

The New Neo Posted on by

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

The New Neo Posted on by

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)

The New Neo Posted on by

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.

The al-Marri case and beyond: what do you do with a suspected terrorist? (Part II)

The New Neo Posted on by

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.]