I listened to an interview with John Yoo this morning on NPR. Yoo is a law professor at Berkeley, He also served as a deputy attorney general 2001-03, and helped formulate many of the Bush Administration's policies on dealing with enemy combatants.
The interview -- which was prompted by his new book, War by Other Means, and which focused on the new Detainee Bill recently passed by Congress -- confirmed for me any number of worries I've had over the legal and existential foundation of the Administration's War on Terror. They center on the whole concept of our being at war, and thus needing (or being able) to act as though we are at war.
Metaphorically, the description works. Dealing with groups that vary from armed, bomb-setting militant guerrillas to suicidal terrorist cells, violent action against the US, its allies, and its interests is something that cannot be treated purely as a reactive police and criminal justice matter.
But traditionally war is distinguished by, among other things, an identifiable organization (usually a government) that we are trying to defeat, defeat being either killing them all, robbing them of their ability to act against us (e.g., through occupation), or making them realize their efforts to continue aggressions are more costly than beneficial.
The War on Terror is something very different. There is no definable, encompassing target. If every member of Al Qa'eda were taken out tonight, the WoT would continue, because other organizations would arise in their place. In both Afghanistan and Iraq, let alone the other locations that terrorist or terror-supporting folks operate, we've seen that the prospects of killing them all, occupying them to prevent their aggressions, or getting them to realize that their aggressions will cost them more than they will benefit them, are passingly slender. We have, at best, scored some victorious battles.
The war, though, is no closer to being won, because it can never be won. There's no country to occupy. There's no munitions industry to bomb. There's nobody to negotiate with, or sign a treaty alongside. It is not a war, it is a security condition. It's dangerous as all hell, and action needs to be taken, but it's not something that lends itself any better to wartime strategies (roll in the tanks, unleash the bombers) than police strategies (round up the usual suspects).
The problem is, by calling it a war, by getting war powers, the Administration has taken upon itself any number of further abilities and tactics that were not designed to deal with the current situation. Which brings us around to the Yoo interview, which is chillingly worth listening to, and which can be summarized in two points:
The first point is ludicrous. Granting that no human or judicial system can be perfect, that does not excuse flaws that can be addressed. The restrictions placed by Congress, though (and apparently supported by Yoo and by the Administration), not only are flawed, but the cripple the feedback loop that identifies problems in other systems and allows the opportunity for correction, by severely limiting the appeals process if someone's situation is not being addressed properly. Yes, if everyone does their job right, honestly, wisely, and diligently, we won't have too many problems. To build a system around such an assumption, though -- a system that relies on such an assumption -- is foolish at best, and a grave miscarriage of justice waiting to happen.
The second point, though, is where the wheels come off in my opinion. It's best seen here:
"Well, it's not a criminal trial," says Yoo. [...] "This is part of the way the rules of war have worked for a long time," he says. "The military proceedings to determine if you're an enemy combatant usually don't require as much proof. You know, the point of the war is not to collect evidence and solve crimes. It's to fight and defeat the enemy. So I think this sort of flexible process reflects the demands and the nature of warfare."
Except it's not warfare in the traditional sense.
Leaving aside the whole issue of the greater fuzziness of who's an "enemy combatant" vs. a "prisoner of war" (which, itself, is telling), and which means that folks being so accused may be found and identified as ECs in far more ambiguous circumstances than a guy in uniform defending a bunker with an enemy flag over it, one can argue at the very least that someone identified as an "enemy" during, say, WWII, faced at best a few years in prison, even if innocent. Ditto for WWI, Korea, etc. Those wars had defined end points (even if they weren't predictable at the time). Someone wrongly accused of being an EC in WWII faced what turned out to be a five year sentence, tops.
Someone wrongly deemed to be an EC now, in the War on Terror, faces a life sentence. Or a sentence of convenience, until the Powers that Be decide the person is no longer a threat, at which point, assuming that anyone will take him or her back, the person is sent away. That could be tomorrow. That could be a decade, two decades, three, four away.
The irony is, that in a traditional war, a more "flexible process" is necessary because you simply don't have the time on the battlefield to deal with every specific case. But we've set up a system where there's all the time in the world, a lifetime in fact -- and where all that time can be simply ignored because it's too costly or inconvenient to do anything with it.
That's just wrong.
What's the answer? Damned if I know -- but some sort of middle ground is certainly necessary to deal with the very real threat that groups like Al Qa'eda pose, and will continue to pose, whether it be on quasi-traditional battlefields, on airplanes, or on back streets around the world. That threat isn't something that can be ignored, but it isn't something we can afford to treat like traditional war, either in our military tactics or in our expedited judicial handling of those accused of being our enemies.
There. A nice "brief" rant. Harrumph. Please be about your business, citizens.
Filed under :: Geopolitical Brouhaha :: Homeland Security
Terror is a tactic, like ambushes.
If the Bush Administration declared a War on Ambushes, they'd be laughed out of the country. I don't know why they've been given a pass on the "War on Terror" term.
Actually, I don't understand the American people at all anymore.
You have a president who loudly proclaims himself a Christian and leader of a Christian nation, yet he got the nation to institutionalize torture, which raises the questions:
Who would Jesus waterboard? Who would Jesus crucify?
(And yes, your country has crucified someone already--you don't need a cross and nails to do the job, all you need is to keep someone's arms up high enough that their lungs collapse. That's what killed Jesus. It also killed someone at Abu Ghraib).
Calling it a "stress position" instead of crucifiction kind of makes it seem kinder and gentler, though, doesn't it?
I guess democracy is a zero sum dealio, eh? I guess in bringing democracy to Iraq the president had to take it away from Americans. Why else would he take away habeas corpus, the very root of democracy, from your country?
The thing that amazes me? Hardly anyone in a supposedly Christian, democracy loving nation has raised a peep about this.
The thing that might take his government down? A member of his party sending dirty text messages to an underage boy.
I don't understand the United States at all.
Another interesting piece on NPR this morning explained that we've been trying to return ECs to their home nations and they won't take them. Today's piece was about 9 citizens of the UK (according to our intellegence), but the UK disagrees and won't take them.
Gitmo may become the capital for people without a country!
As I may have mentioned elsewhere, this is the same President who, when Terry Schiavo's husband wanted her feeding tube removed, declared that all human life is sacred. How he can reconcile that with bombing Iraq and torturing possible ECs is a mystery to me. Either he's a whopping hypocrite or his definition of "human" includes the word "American."
"What’s the answer? Damned if I know"
Doh! OK, I'm over the disappointment. Here - I'll try:
We clear out bureaucratic impediments to information-sharing among law-enforcement agencies - check. OK, not check, but we're working on it. Well, talking about it a lot, anyway. OK, damn it, the FBI still doesn't have a computer system that works, are you happy!?
Then we establish transparency in method. Tapping international calls? Fine, tell the people about it, and have judicial oversight so it doesn't go out-of-bounds. Just make sure somebody's independently minding the store so it's security-related and not political.
Under no circumstances do we torture. If someone complains we might miss vital information that way (assuming we could extract the reliable facts from the blizzard of "tell them anything to make the pain stop" facts), our answer is: "Well, that's the difference between them and us." We aren't going to win this battle with guns; a moral example is a mighty powerful weapon.
We stop expelling Arab translators from the military for being gay. That's just stupid.
In fact, we invite John Stewart and other smart-alecks to review our security procedures. Brutal, but these are desperate times and there's no more certain way to spot the stupidity than to sic the class clown on it.
We make energy endependence a "Manhatten Project" priority so we can stop funding our enemies. (Then we market the new technology to the rest of the world because hey, this is America and we stand to make a profit.)
The list of concrete things we should do goes on and on. Funny how the current occupant just jumped right to the erosion of freedoms. Almost as if they were itching to do that all along.
The thing that amazes me? Hardly anyone in a supposedly Christian, democracy loving nation has raised a peep about this.
Actually, Marn, plenty of folks have raised a peep about it. Loud peeps.
Though, as you say, "terror is a tactic." It can be used in politics and society as well in war.
Gitmo may become the capital for people without a country!
It's a classic deportation problem, Mary, present in (civil) criminal deportations, too.
As I may have mentioned elsewhere, this is the same President who, when Terry Schiavo’s husband wanted her feeding tube removed, declared that all human life is sacred. How he can reconcile that with bombing Iraq and torturing possible ECs is a mystery to me. Either he’s a whopping hypocrite or his definition of “human” includes the word “American.”
1. Bombing Iraq is war. We traditionally make exceptions for inadvertent taking of innocent life in such circumstances. (Half-ironic here.)
2. The problem with "torturing possible ECs" -- well, there are a ton of problems with both "torture" and "ECs" but the "possible" part is the real problem here, and gets to the core of my difficulty above. They are *presumed* ECs, and the barriers to lifting that presumption are improperly high. "These are bad people." "Prove it." "Trust us." That's the problem.
3. Of course "American" is in there, implicitly (consciously or not). People tend to be more tribal about such things in practice, if not in theory. Thus, Congress wouldn't act to demand another country not remove a feeding tube from someone (nor, honestly, would most Americans care that much) (and, honestly, I don't think that's just an American thing).
Dave: great post, hang in there. As soon as Bush is out of office most of these ridiculous policies will be thrown out.
Marn: I am still trying to figure out the US as well. I will let you know when I got it down. :p
DOF: you rock! That was funny and enlightening at the same time. IF I can find this special segment I heard on NPR I will post it for all to see. It was insanely enlightening.
About 80% of the detainees came from Pakistan, and nearly all of them were caught through a program the US created where we would pay $8000-$25000 for credible information that leads to a capture. So sure enough the Pakistanis started turning over individuals. Hell why not? They get a minimum of $8,000 US dollars. That's enough money to catch a flight to the US and start a new life.
Once at Guantanamo the detainees have no rights and are certainly tortured through different means. While it was illegal for the detainees to be tried throught the tribunal on US soil, the US simply put the detainees they wanted to try on a ship in international water, and tried them through a military tribunal. This way they there is a loophole. A sample military tribunal goes something like this (this is assuming that this one defendant actually has a lawyer, which almost none of them do):
Lawyer: "So what is my client being charge with?"
Judge: "He was spotted at a restaurant where known terrorists hang out."
Lawyer: "Who spotted him?"
Judge: "That information is classified."
Lawyer: "Then which was the restaurant?"
Judge: "That information is classified."
Lawyer: "What information do you have that my client was spotted?"
Judge: "That information is classified."
etc...
This is not even made up, which is just insane. If Bush thinks these people are terrorist, then putting them through a legal system similar to ours should make no difference. The evidence would easily prove it. So my question to Bush, Why are you fighting so strongly for the military tribunals?
We clear out bureaucratic impediments to information-sharing among law-enforcement agencies - check. OK, not check, but we’re working on it. Well, talking about it a lot, anyway. OK, damn it, the FBI still doesn’t have a computer system that works, are you happy!?
Aside from the technological problems with that, there are (some valid) philosophical concerns. When law enforcement is too efficient, it can abuse more efficiently. Similarly, information sharing can be dangerous when the information is not accurate (see: credit reports).
I think this has to happen anyway, but bear in mind that every time that sort of sharing is proposed, a lot of people get really, really nervous.
Then we establish transparency in method. Tapping international calls? Fine, tell the people about it, and have judicial oversight so it doesn’t go out-of-bounds. Just make sure somebody’s independently minding the store so it’s security-related and not political.
I agree fully.
Under no circumstances do we torture. If someone complains we might miss vital information that way (assuming we could extract the reliable facts from the blizzard of “tell them anything to make the pain stop” facts), our answer is: “Well, that’s the difference between them and us.” We aren’t going to win this battle with guns; a moral example is a mighty powerful weapon.
Philosophically, I agree. Pragmatically, the definition of "torture" is elastic in both directions (there are plenty of folks willing to raise the bar ridiculously, too; see various "I was abused in prison because they deprived me of my daily fix of 'All My Children'" law suits, or various "Parents who give their kids a swat on the butt ar e guilty of child abuse and should have their children taken by the state" kind of things).
I do believe that the current Administration has *lowered* the bar shamefully.
We stop expelling Arab translators from the military for being gay. That’s just stupid.
Amen.
In fact, we invite John Stewart and other smart-alecks to review our security procedures. Brutal, but these are desperate times and there’s no more certain way to spot the stupidity than to sic the class clown on it.
Yeah, but could he then talk about it? That would be a loss.
We make energy endependence a “Manhatten Project” priority so we can stop funding our enemies. (Then we market the new technology to the rest of the world because hey, this is America and we stand to make a profit.)
I don't trust a government program to come up with the answer. The Manhatten Project had explicit technical goals. Unless you say, "I want solar cells that are 99% efficient and cost 5 cents per KwH produced," simply giving an open-ended hole to shovel money into seems unlikely to help.
The list of concrete things we should do goes on and on. Funny how the current occupant just jumped right to the erosion of freedoms. Almost as if they were itching to do that all along.
The irony is thick and choking. That said, I tend to attribute it more to opportunistic stupidity than malice. But I'm a generous guy.
As soon as Bush is out of office most of these ridiculous policies will be thrown out.
I suspect that will be the case -- more or less depending on who succeeds him (and how Congress is composed) (and assuming that someone doesn't get in who decides to make further use of such laws to abuse his way to longer-term power). It will be difficult, since in a lot of cases, it was all done under the rubric of "security," and pols tend to be careful about seeming week on terrorism (which is why these laws have gotten so widely passed in the first place).
But even if it were all rolled back, a lot of damage has been done already, both in terms of perceptions from both the world and from our own citizenry as to what America stand for, and in terms of precedents having been set that will make it easier for the next goofball or would-be tyrant to do this sort of thing.
The arguments you attribute to Yoo caught my eye:
1. The current “enemy combatant” legal system, as now defined by Congress, isn’t perfect, but neither is the criminal justice system, so it should be given a pass.
2. What we’re doing is substantively no different from what has been done during war in the past.
The first is a classic "two wrongs make a right" fallacy. The second is a fallacious appeal to tradition.
You'd think a professor of law would know better than to use such fallacious reasoning. All the more reason for my unreasoning dislike of lawyers.
The Geneva convention was deliberately vague on the definition of torture because there will always be new ways - maybe just an injection of a neurotransmitter to treat the guest to four hours of hyperalgesia, for example. As The Onion suggested, "limiting testicular shocks to 99 amperes" is probably too specific. If you are unclear on what "outrage against human dignity" means, you probably shouldn't be president.
I think being very specific on energy projects is a great idea, however. Pumping up existing research projects on solar cells and superconducting power lines, opening government resources in wind-farm location analysis, fast-tracking conservation technology in government buildings, and setting prizes for technological achievement like the X-prize, are all good strategies.
"But even if it were all rolled back, a lot of damage has been done already, both in terms of perceptions from both the world and from our own citizenry as to what America stand for, and in terms of precedents having been set that will make it easier for the next goofball or would-be tyrant to do this sort of thing."
Well, let's see.
America stands for abandoning its liberties and basic civilized behaviour when frightened by a gang of two-bit, fear-mongering political hacks.
Somewhere between a plurality and a large minority of Americans has embraced torturing prisoners on the off chance that it might make them marginally safer. America stands for panicky barbarism.
America stands for doing whatever we please to anyone in the world (well, anyone without nukes) while proclaiming our moral and spiritual superiority. And then trying to con other nations into helping pay for our messes. America stands for bullying and whining.
Even if we change our ways tomorrow nobody outside of America is going to forget these things for a long, long time.
Even if we change our ways tomorrow nobody outside of America is going to forget these things for a long, long time.That is a chance I for one am willing to take.
Well, yeah. We need to do it for ourselves.