Balkinization  

Monday, October 23, 2006

Parallel Tracks in the National Surveillance State

JB

This MSNBC story tells how the treatment of Guantanamo detainees sparked a struggle between intelligence and law enforcement personnel.
[T]he struggle over U.S. interrogation techniques began much earlier than previously known, with separate teams of law enforcement and intelligence interrogators battling over the best way to accomplish two missions: prevent future attacks and punish the terrorists.

The story exemplifies a key problem in the emerging National Surveillance State. To promote security, the government creates a parallel system of interdiction, detention, and interrogation outside the traditional procedures and restraints of the criminal process (or, in this case, the military justice system of courts martial). However, by doing so, the state makes it difficult if not impossible to use the fruits of the parallel system in the traditional system:
In extensive interviews with MSNBC.com, former leaders of the Defense Department’s Criminal Investigation Task Force said they repeatedly warned senior Pentagon officials beginning in early 2002 that the harsh interrogation techniques used by a separate intelligence team would not produce reliable information, could constitute war crimes, and would embarrass the nation when they became public knowledge.

The investigators say their warnings began almost from the moment their agents got involved at the Guantanamo prison camp, in January 2002. When they could not prevent the harsh interrogations and humiliation of detainees at Guantanamo, they say, they tried in 2003 to stop the spread of those tactics to Iraq, where abuses at Abu Ghraib prison triggered worldwide outrage with the publishing of graphic photos in April 2004.

Their account, confirmed by the Navy's former general counsel, outlines a fierce debate within the Defense Department over the competing goals of justice and security in the war on terror. President Bush has said repeatedly that the detentions at Guantanamo were intended not only to secure intelligence information to prevent al-Qaida attacks, but also to "bring to justice" the terrorists.

As a result, a dual structure of intelligence gathering and criminal investigation, with two arms of the U.S. military, with overlapping missions, interrogating the same prisoners, continues today.

The law enforcement agents, who were building criminal cases against the detainees, also say that military prosecutors told them that abusive interrogations at Guantanamo compromised the chance to bring some suspected terrorists to trial. Among them, the agents say, is Mohammed al-Qahtani, a Saudi whom the Pentagon has described as the intended 20th hijacker in the Sept. 11, 2001, terror attacks.

"We were told by the Office of Military Commissions, based on what was done to him, it made his case unprosecutable," said Mark Fallon, the deputy commander and special agent in charge of the Criminal Investigation Task Force from 2002 to 2004. "It would taint any confession if obtained under coercion. They were unwilling to move forward with any prosecution of al-Qahtani."

A Pentagon spokesman on Friday dismissed this as "speculation," but would not say whether al-Qahtani would be tried. He is not among the 10 detainees who have been approved for a military trial.
It was two years before the photos emerged from Abu Ghraib, the Pentagon cops said, when they began arguing that coercive or abusive interrogations would not serve war-fighting or justice.

"No. 1, it’s not going to work," said Col. Brittain P. Mallow, the commander of the task force from 2002 to 2005.

"No. 2, if it does work, it’s not reliable. No. 3, it may not be legal, ethical or moral. No. 4, it’s going to hurt you when you have to prosecute these guys. No. 5, sooner or later, all of this stuff is going to come to light, and you’re going to be embarrassed."


As I've discussed previously, the national surveillance state creates twin dangers. The first danger is that the parallel system will increasingly displace the traditional system of criminal punishment, with its various procedures and safeguards. The second danger is that the state, eager to avoid the limitations of the existing criminal justice system, will try to make the criminal justice system more like the parallel track.

The Administration's recent attempts to amend FISA to settle legal qualms about its NSA domestic surveillance program is an example of the second solution-- change the rules of criminal procedure to make it more like the parallel system of foreign intelligence surveillance. The Administration's detainee policies are an example of the first solution-- attempting to sweep up more and more into the parallel track. The recently passed Military Commissions Act of 2006 essentially creates a Congressional imprimatur for a parallel system of detention and interrogation.

However, in the case of the MCA, the President is also adopting the second solution: he is trying to modify the existing system of military justice to allow for prosecution and punishment of detainees through a special system of military commissions with relaxed rules of evidence, which will allow the admission of some secret evidence and some evidence obtained by coercion. That is, he is making the existing military justice system more like the parallel system that gives him greater freedom from legal restraints.

For example, although section 948r of the MCA bars the introduction of evidence produced through torture, it permits evidence obtained through cruel, inhuman and degrading treatment if the statement was obtained before December 30, 2005, when the McCain Amendment was passed. In essence, this provision lets the Administration use the fruits of its previous parallel system of interrogations in the new military tribunals. This bridges the gap created by the use of the parallel system. It does so, however, at the cost of seriously compromising and perverting the existing system of military justice.


Comments:

Allow me to say something not directly responsive to the posting and comment solely on the word "terrorists" in the quotation from MSNBC at the top of the posting. I'll start by noting a posting at talkingpointsmemo.com (Oct. 23, 3:09 p.m.) that argues that the reason that we are still in Iraq, throwing good money after bad, is that Bush will not admit that he made a lousy investment. Is it possible, analogously, that the reason Bush continues to imprison and torture the detainees at Guantanamo is that he will not admit that they are innocent? Surely the fact that he continues to imprison and torture them demonstrates their guilt, does it not? MSNBC plays into Bush's hands by using the word "terrorists" to refer to people who have been convicted of nothing. Hell, they are not even "alleged terrorists" in that no charges have been filed against them.
 

Another alternative, of course, is that when you seize people for no particular reason, declare them enemies and subject them to various abuses, you often succeed in making real enemies and do not dare release them for fear of what they would do when released.
 

The question is why the FBI and the civilian criminal justice system was ever used against alien enemy combatants captured overseas during a war. This concept is a holdover from the misguided Clinton Administration policy which treated a foreign war as some sort of a criminal justice matter and to this end deployed the FBI overseas instead of the Army.

We never did this in the past. Overseas wars are a military matter. The domestic law enforcement and criminal justice system is only concerned with domestic security. The FBI had no business at Gitmo.

I can understand the political desire to try the perpetrators of the 9/11 war crime. However, for the average al Qaeda, it is far more important to gather timely actionable intelligence through the interrogation of the captures to roll up enemy cells and prevent future attacks.

The US can legally hold alien enemy combatants for the duration of the conflict. Given this will most likely be a multi generational conflict like the Cold War, this detention is effectively a life sentence. Thus, the only reason to go through a trial is to impose a death sentence. Gathering actionable intelligence is far more important than killing these terrorists, no matter how much they may deserve it.

Finally, killing the members of a suicide death cult like al Qaeda is probably not the best way to deter others from joining the cult. This enemy seeks martyrdom in the misbegotten belief that Allah rewards mass murder. Better to let the al Qaeda captures rot in some small cell for the rest of their lives without any chance for the glory they seek.
 

Bart: Thus, the only reason to go through a trial is to impose a death sentence.

And when some future president determines you to be an alien unlawful enemy combatant or otherwise subject to MCA will that be a comfort? Or are you under the impression that there is some requirement of reasonableness to that determination? If so could you point us, please, to the section of the Act that requires such?
 

Overseas wars are a military matter. The domestic law enforcement and criminal justice system is only concerned with domestic security. The FBI had no business at Gitmo.

I find this a bit unusual coming from a guy prone to dropping whoppers like "Donkey operative," so forgive me if I read too much politics into your statement.

However, wouldn't you agree that the Global War on Terror is a response to acts carried out on American soil, with a driving logic that if we fight it there, it's less likely to happen here? I mean, we all agree it'll happen again at some point, but isn't the rhetoric consistently phrased in those terms?

If you agree with that rhetoric insofar as it justifies ongoing military actions, then why would you think that the FBI's own mandate to ensure domestic security ended at the borders?

At the FBI site, they describe the expansion of their jurisdicition like this: "In 1986, Congress had expanded FBI jurisdiction to cover terrorist acts against U.S. citizens outside the U.S. boundaries. Later, in 1989, the Department of Justice authorized the FBI to arrest terrorists, drug traffickers, and other fugitives abroad without the consent of the foreign country in which they resided."

This hardly seems like sticking to one's borders, and it hardly sounds like the fault of Clinton Administration policy, unless (as I suspect) one has been so moved by the events of Sept. 11, 2001 and the subsequent rise in jingoism to relegate everything that happened prior to an antediluvian "Clinton era" where people just didn't understand how the world worked.
 

It's even better than that. The FBI.gov site also contains the following bit of history:

"In 1936, President Roosevelt directed the FBI to investigate potential subversion by Nazi and Communist organizations. In 1940, he tasked the Bureau with responsibility for foreign intelligence in the western hemisphere and domestic security in the United States. In response, the Bureau created a Special Intelligence Service (SIS) Division in June 1940. The SIS sent undercover FBI Agents throughout the Western Hemisphere. These Agents successfully identified some 1,300 Axis intelligence agents (about 10% of whom were prosecuted). When President Truman ordered the program's end in 1947, several former SIS offices became the backbone of the FBI's foreign liaison efforts, now serving as Legal Attaché Offices. FBI efforts also thwarted many espionage, sabotage, and propaganda attempts on the home front, including Frederick Duquesne's spy ring in 1941 and George Dasch's band of saboteurs in 1942."

Bart just makes up what he needs.
 

PMS_Chicago said...

Bart: Overseas wars are a military matter. The domestic law enforcement and criminal justice system is only concerned with domestic security. The FBI had no business at Gitmo.

I find this a bit unusual coming from a guy prone to dropping whoppers like "Donkey operative," so forgive me if I read too much politics into your statement.

As a point to explanation, I like referring to Democrats and Republicans as Donkeys and Elephants to give my political posts more color.

Politics has nothing to do with this comment. I am just as critical for the Bush Administration's use of domestic law enforcement overseas to fight foreign wars as I am the Clinton Administration. The Bushies were the ones who sent the FBI to Gitmo.

However, wouldn't you agree that the Global War on Terror is a response to acts carried out on American soil, with a driving logic that if we fight it there, it's less likely to happen here?

To start, I don't like the term Global War on Terror because it is a marketing term meant to spare the feelings of Muslims. We are at war with an Islamic fascist movement. This movement is wider than just al Qaeda, but I will use that umbrella organization as a shorthand because they have been the standard bearers in this war.

I disagree that this war started with 9/11. al Qaeda and its allied groups declared war against the United States over a decade ago and attacked our citizens all over the world for years before 9/11. This is a foreign enemy which has managed attacks on US soil.

With those qualifiers, I agree that our current war strategy is to use the military to attack the enemy in their home countries in the Middle East so that they do not have the ability to attack us here. Seems to have worked so far.

If you agree with that rhetoric insofar as it justifies ongoing military actions, then why would you think that the FBI's own mandate to ensure domestic security ended at the borders?

The FBI enforces domestic civilian law. Except for instances where a foreign event bears upon a violations of domestic civilian law, I do not see what role they should have overseas in a foreign war. They have a vital counter terror role in the United States because the military is severely limited in what it can do domestically.

At the FBI site, they describe the expansion of their jurisdicition like this: "In 1986, Congress had expanded FBI jurisdiction to cover terrorist acts against U.S. citizens outside the U.S. boundaries. Later, in 1989, the Department of Justice authorized the FBI to arrest terrorists, drug traffickers, and other fugitives abroad without the consent of the foreign country in which they resided."

This happened back when we considered terrorist acts against US citizens to be a mere criminal justice matter. At that time, terrorism consisted of an isolated kidnapping, hijacking or murder like the hijacking of the Achille Lauro and the murder of Mr. Klinghoffer. Even then, the attempt to project domestic law enforcement overseas was ineffective in actually preempting terrorist attacks.

However, the increasing scale of the threat has changed the calculus. The enemy has literally declared war against our entire people. Their way of war is the mass murder of civilians by any means possible. 9/11 proved that they mean what they say. The possible availability of WMD to carry out the enemy's terror makes that threat even more clear and present.

The 90s showed that domestic law enforcement simply was not equipped and did not have the necessary jurisdiction to reach the enemy overseas in what was in reality a war.
 

Other Michael:

Your cut and paste from FBI.gov proves my point. The FBI has long been the primary counter intelligence agency to protect the nation from foreign espionage. This is a domestic law enforcement matter.

In contrast, during WWII, the US did not consider trying foreign enemy combatants captured overseas as criminals under domestic law. Thus, the FBI was not involved with the interrogation of enemy combatants captured overseas. That was a military matter. The FBI only got involved when enemy saboteurs entered the United States.
 

Professor Balkin:

As this debate and many before it make clear, the difficulty is that what we are dealing with is a murky area between war and criminality. Neither paradigm truly fits. The United States has no equivalent to compare this to in recent times, and perhaps not since the Constitution was adopted.

It seems to me the nearest analogy to our War on Terror would be piracy during the 17th and 18th centuries. Piracy was multi-generational and operated throughout the Atlantic. Pirates had armed ships and land bases. They committed war-like depredations on commercial ships. Yet they had no national government. They were no match for a regular navy. They were nowhere recognized as lawful combatants.

In short, pirates were too big to be mere criminals, but not big enough to be a true military adversary. Sort of like Al-Qaeda and its network today.

It is my understanding the pirates were ultimately defeated by a combination of war and law enforcement tactics. But it is a subject that I know very little about. Your blog has examined many intriguing historical paralells. Do you have anyone there who has studied the War on Piracy and can comment on whether this is an appropriate analogy?
 

it permits evidence obtained through cruel, inhuman and degrading treatment if the statement was obtained before December 30, 2005, when the McCain Amendment was passed. In essence, this provision lets the Administration use the fruits of its previous parallel system of interrogations in the new military tribunals.
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It does seem to do so.

Professor Hadley Arkes thought it would be an outrage against the nature of law (rehtorically) to codify 'gay marriage', which he thinks is intrinsically different than non-gay marriage. I wonder how he feels about adding this lacrimous lacuna for torture to the code, so that we all don't have to face up formally to just how rudderless this country got for a time under Bush-43 'leadership'?



This concept is a holdover from the misguided ... policy which treated a foreign war as some sort of a criminal justice matter ...
----
Here is a good article to show why this "policy" has been around a lot longer than the current missteps of the Administration's legal team have. And why.
http://www.foreignaffairs.org/20020101facomment6553/michael-howard/what-s-in-a-name-how-to-fight-terrorism.html



Overseas wars are a military matter. ...
We are at war with an Islamic fascist movement. This movement is wider than just al Qaeda, but I will use that umbrella organization as a shorthand because they have been the standard bearers in this war.
----
Where is the battlefield for this "war"? Isn't it the streets and towns of our neighbors? Do we really want the military operating without important legal restraints in such surroundings/circumstances, _in general_?

(In WWII, removal of enemy soldiers from the geographic advance - the front of the battlefield - is obvious. Piracy is about theft. It is not political violence in the form of the challenge posed by al qa'ida. To lump the two is to imagine, perhaps, that grand larceny is the same as murder-1, although no analogy is perfect. I think we can safely say that there is a strong case to be made that the law ought to distingush them).


attack the enemy in their home countries in the Middle East so that they do not have the ability to attack us here. Seems to have worked so far.
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The jury is out on that most certaintly, on so many fronts simultaneously! One is the cost of 'over there'. Second is the miscalulation/mis-execution in Iraq - less so in Afghanistan, insofar as getting terrorists on the run and raising their costs of doing business. Third is the morally bankrupt notion that it is better there than here, when that is taken to mean that other innocent lives are less important than our innocent lives (when given the benefit of the doubt, I hope this was not how that phrase was conceived, but judging from militancy of some people using it, doubt is everpresent).


al Qaeda and its allied groups declared war against the United States
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Any nutty group, foreign or domestic, can 'declare war' and set off a bomb.

When you talk to counterterror experts, what you hear is that what is important is our response, both in form and content.

see the bottom of this, for more, under reply to "its not a game, its total war"
http://balkin.blogspot.com/2006/10/rights-against-torture-without.html#comments
 

Enlightened Layperson said...

It seems to me the nearest analogy to our War on Terror would be piracy during the 17th and 18th centuries.

If your intent was to illustrate how a past war against illegal combatants was prosecuted, this is an apt analogy.

The military in the form of the Navy swept the pirates from the sea.

Under 18th century law, captured pirates were generally hung at once on the yardarm of the capturing ship. So much for due process or habeas corpus.

http://tarlton.law.utexas.edu/lpop/etext/
jmlc/gutoff31.htm

At most, pirates were tried by military admiralty courts. If they were found to be pirates, they were hung. This is very similar to our military commission system.

http://elftown.lysator.liu.se/_Punishment
 

Amicus said...

Bart: This concept is a holdover from the misguided ... policy which treated a foreign war as some sort of a criminal justice matter ...

Amicus: Here is a good article to show why this "policy" has been around a lot longer than the current missteps of the Administration's legal team have. And why.


OK, Michael Howard wrote:

The British in their time have fought many such "wars" -- in Palestine, in Ireland, in Cyprus, and in Malaya (modern-day Malaysia), to mention only a few. But they never called them wars; they called them "emergencies." This terminology meant that the police and intelligence services were provided with exceptional powers and were reinforced where necessary by the armed forces, but they continued to operate within a peacetime framework of civilian authority.

These are classic counter guerilla campaigns run by the military with the assistance of a militarized police force after suspending or truncating the rights of the guerilla suspects.

These campaigns did not involve sending the FBI to places like Yemen to be blown off by the local government which was in bed with al Qaeda.

Bart: Overseas wars are a military matter. ...
We are at war with an Islamic fascist movement. This movement is wider than just al Qaeda, but I will use that umbrella organization as a shorthand because they have been the standard bearers in this war.

Amicus: Where is the battlefield for this "war"? Isn't it the streets and towns of our neighbors?

No, we have moved the war into the foreign streets and towns of our enemies.

Amicus: Do we really want the military operating without important legal restraints in such surroundings/circumstances, _in general_?

If we are talking about United States territory, of course not. Thus, the Posse Comitatus Act. As I posted above, domestic law enforcement like the FBI is designed for domestic purposes.

Bart: [A]ttack the enemy in their home countries in the Middle East so that they do not have the ability to attack us here. Seems to have worked so far.

Amicus: The jury is out on that most certaintly, on so many fronts simultaneously!


I am unaware of a single enemy attack against our citizens outside of the Middle East war zone including the United States since our military intervention into the Middle East.

So far, so good.

That doesn't mean that the enemy will never pull off another attack on us. However, this is evidence that the decimation of the enemy overseas does seem to have crippled his ability to operate here.

Amicus: One is the cost of 'over there'.


What is the value of stopping another 9/11, saving 3500 lives and keeping a million citizens from being unemployed?

Now, tell me what is the value of making sure the next 9/11 attack doesn't use a crop duster to cover a filled Central Park on some sunny day with some of that sarin we found in Iraq, or place some new strain of small pox at JFK so it can fly around the country, or heaven forbid destroy the US financial nerve center and half of NYC with a nuke?

Second is the miscalulation/mis-execution in Iraq - less so in Afghanistan, insofar as getting terrorists on the run and raising their costs of doing business.

Miscalculation how?

How many of the al Qaeda high command based in Afghanistan are still free or alive?

In Iraq, al Qaeda has just admitted that we have killed 4000 of their fighters including their commander Zarqawi and most of his commanders.

The enemy are the ones who have miscalculated in their underestimation of our resolve...at least so far.

Third is the morally bankrupt notion that it is better there than here, when that is taken to mean that other innocent lives are less important than our innocent lives (when given the benefit of the doubt, I hope this was not how that phrase was conceived, but judging from militancy of some people using it, doubt is everpresent).

The fact that the enemy has turned their mass murder tactics against fellow Muslims is on their heads, not ours.

Bart: al Qaeda and its allied groups declared war against the United States

Amicus: Any nutty group, foreign or domestic, can 'declare war' and set off a bomb.


C'mon now, do I really have to list all the times the enemy attacks our citizens across the world and how many they killed?

Moreover, do I have to list all of the massacres of the citizens of other countries who allied themselves with us in this war?
 

Bart:

I looked up your sources and found them somewhat less straightforward than you say. Your statement about captured pirates being hung on the yardarm of the capturing ship omits the qualifications in the original:

A Piracy attempted on the Ocean, if the Pirates are overcome, the Takers may immediately inflict a Punishment by hanging them up at the Main-yard End; though this is understood where no legal judgement may be obtained; And hence it is, that if a Ship shall be on a Voyage to any Part of America, or the Plantations there, or a Discovery of the Parts; and in her Way is attacked by a Pirate, but in the attempt the Pirate is overcome, the Pirates may forthwith be executed without any Solemnity of Condemnation, by the Marine Law.

This would allow summary execution of pirates only if they actually attacked a ship and were caught in the act. The whole point here is that many of the "terrorists" we are holding were not captured in actual combat, but taken under circumstances that make it extremely difficulty to tell who is or is not actually a terrorist.

I am not a lawyer or a historian, but the phrase "though this is understood where no legal judgement may be obtained" would appear to be an acknowledgement that summary execution was an extreme measure, allowed only because of the obvious difficulties in holding prisoners on a ship until they could be brought to land for trial.

As for maritime law and admiralty courts, I do not claim any knowledge about them but would like to learn.

You have presented no evidence that suspected pirates were held prisoner and coercively interrogated for life without no trial and no means of challenging their designation as pirates.
 

These are classic counter guerilla campaigns run by the military with the assistance of a militarized police force after suspending or truncating the rights of the guerilla suspects.
------------
I'm not sure how you intend that to refute the main points that "war" isn't the appropriate terminology and not smart counterterrorism. The ability to treat those who engage in terrorism as criminals and to offer, where necessary, something more than summary Justice is important.


These campaigns did not involve sending the FBI to places like Yemen to be blown off by the local government which was in bed with al Qaeda.
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I'm not sure anyone was getting blown-off post 9-11. On the other hand, it is the war footing that threatens security alliances, not encourages them.

(And, for the record, it wasn’t just the FBI that got one-way treatment. Western nations didn't cooperate with middle east security services concerning radicals that they wanted, and Mubarak is one of the earliest on record with warnings to other governments to take seriously a coordinated approach to a common threat).


No, we have moved the war into the foreign streets and towns of our enemies.
-----------------------------------------
Well that's a _fact_, although attacks continue in other places as well (London, Madrid, Istanbul, etc.).

Now, who do you imagine are your best allies in such a fight in a foreign town and on the foreign streets? How do they feel about being one-step away from being called an ‘enemy combatant’ themselves and whisked away? Do they speak your language? Do they welcome you as protectors? Is it so easy to fight ‘over there’?

Most of them have been living with religious political parties who have been calling this one and that one a "good Muslim" or a "bad Muslim" >>for a long time<<. How do you think they imagine you running around in night goggles trying to figure which is which yourself?


Amicus: Do we really want the military operating without important legal restraints in such surroundings/circumstances, _in general_?
If we are talking about United States territory, of course not. Thus, the Posse Comitatus Act.
------------------------------------------
I think perhaps you overlook the point that all the non-terrorist citizens of those countries probably do not feel quite right about the US Congress offering up to the U.S. President almost sole right to whip them up off the streets (no right to challenge their transport under MCA) and hold them (possibly on hearsay evidence - that is, they were fingered by someone or some computer probability program). In other words, general relations among peoples cannot obviously be handled successfully by 'military justice' of that manner.


So far, so good.
That doesn't mean that the enemy will never pull off another attack on us.
----------------------------------------
Your second statement rather negates your first. "So far, so good" is not any kind of meaningful metric. The bottomline on exactly what the threat is that we really don't know, with any great precision. I think there are psychological and sociological differences, possibly, in how people respond to that fundamental uncertainty. Some can live with that uncertainty, and get on with their lives. For others, it is so unsettling that it is almost destabilizing.


Amicus: One is the cost of 'over there'.
What is the value of stopping another 9/11, saving 3500 lives and keeping a million citizens from being unemployed?
----------------
Well, if you want to talk about dollars and cents and the average cost to acquire the "High Value" targets that the President has suggested are at the root of the CIA's program effectiveness, then we can.

The Twin Towers were $7.2 Billion in insurance claims. OIF (Iraq) and OEF (Afghanistan) will probably run to $900 billion, as a rough guesstimate. We would have over 100 twin towers for the same money ... If that is not astounding enough, then I think I once calculated that $900 billion is equal to the combined GDP of most of the mid-east countries. If you wanted to change things the old-fashioned way, with money, what a huge sum with which to bring pressure.

One cannot measure lives, so I’m not going to bother. However, at some point the number of non-civilians dead is so high that, yes, one can start reasonably to conclude, ex post, that the cost of the strategy was far too high.


some new strain of small pox at JFK so it can fly around the country, o... a nuke?
----------------------------------------
No one has as fixed an answer to these things as you seem to want.

What I would propose for discussion is using worst-case thinking in terms of *planning and readiness* (btw, how are we doing on that, in your estimation?), and less in terms of justifying all actions to ourselves. Worst case scenario thinking has some implications for policy making, but maybe not as much as some fear.

You cannot stop all attacks. It is possible that, some day, a nuke will go off, maybe not in a major city but somewhere - or maybe in more than one at one time. If it is destined to, then can you really imagine that you can stop the end of the world, so to speak? A 'normal' amount to spend on security might be 2-5% of GDP. Would you ramp that up to say 20-25%, in order to lower the chances of a nuke from 97% unlikely to 98.5% unlikely?

There is (religious) reason to believe that al-qa'ida will not use biological weapons - and if they do, it will be a terrible, terrible blow to their existence. In other words, it may be their last shot fired.

If nukes are your worst fear, then how come we don't have $100 billion (or whatever) going into supporting the efforts to build low-enrichment uranium process for civilian use and a world-bank of nuclear fuel for civilian purposes - both things that have been talked about by folks from IAEA, who understand proliferation issues deeply?

Last, it pays to think strategically about what to do if a 'rogue' nuclear device went off somewhere. What do you propose to do? It may not be traceable. We'll all be terrified beyond the capacity for rational thought at that time, and therefore prone to errors. In “response”, do we set off some nuclear devices over Qom - is nuclear-reprisal covered by the AUMF? Would that seal our fate, in the sense that we would end any possibility of common cause and condemn ourselves to talking to the rest of the world via weapons?


Miscalculation how?
-----------------------------------------
Well, if you look back, we were supposed to be imposing costs of doing business on them (Rumsfeld's phrase). Instead, they no longer have to hike to remote Afghanistan but can funnel easily through the unprotected borders of Iraq, don't have to learn the difficult languages required in order to make passage and stay on up there (in Iraq, they can use Arabic), and they get, (a,) an excuse to be there - "occupation" and, (b), "live" field training that cannot compare to any 'camp' in Afghanistan.


The fact that the enemy has turned their mass murder tactics against fellow Muslims is on their heads, not ours.
-----------------------------------------
I, too, would think it would be >primarily<. But, when you and others say, "fight them over there", did you expect that it would not involve a great deal of mayhem and destruction? If not, why not?

Here is a tidbit from the US Declaration of Independence:
"He [the King] has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions."

(By the way, "fellow Muslims" is not an apt phrase, although I'm sure you just used it in passing. Even non-Muslims ought to listen and learn enough to recognize that, although it has all the guises of a religious calling, what al-qa'ida is doing is NOT Islamic.)


C'mon now, do I really have to list all the times the enemy attacks our citizens across the world and how many they killed?
---------------------------------------
Truly, "the war" is in >their< minds, in the notions of perfect justice on earth (they imagine) and in some great cosmic struggle between Islam-Judaism-Christianity.

In truth, people of different faiths have been living together for a long time and can get along just fine.

Right now, they are just a bunch of criminals with a self-proclaimed "war". Let’s keep it that way. It won't be easy.
 

enlightened layperson:

You have presented no evidence that suspected pirates were held prisoner and coercively interrogated for life without no trial and no means of challenging their designation as pirates.

As with most unlawful enemy combatants of the period, pirates were executed. Therefore, our far more lenient detention is not analogous.

So far as the practice of detaining enemy combatants in general for the duration of the conflict without a trial, we still follow that practice.
 

The British Navy continued to hunt down pirates in the Caribbean and along North American coasts. Harsh laws were enacted to punish those who bought or sold to pirates. These measures, along with rules forbidding cruel punishments on Navy vessels, brought the Golden Age of Piracy to an end. www.unmuseum.org/pirate.htm
 

You have presented no evidence that suspected pirates were held prisoner and coercively interrogated for life without no trial and no means of challenging their designation as pirates.

Under Art. I, Sec. 8, Congress has power to "define and punish Piracies and Felonies committed on the high seas, and Offences against the Law of Nations". As I see it, (1) the Executive branch has no power to act outside of Congressional authority, and (2) the due process clause of the 5A limits the Congressional authority granted in Art. I. No authority anywhere authorizes summary execution of prisoners, much less torture of them, pirates or not.
 

Aside from the sub-discussion of anachronistic piracy in places in the thread (v. Thomas Jefferson's hassles with congress over separation of powers on this issue), the two-track governments topic is one I appreciate JB revisiting, now, post-MCA, JB having written about it post-NSA-wiretap; especially, our host's careful article is welcome following, as it does, Scott Horton's elaboration of some of the flaws in German self governance which saw virtual implosion in the Weimar experiment, glossed over handily with revisionist history overlain with the patina of those idealistic and divisive times in the last century.
 

"Bart" DePalma said:

The question is why the FBI and the civilian criminal justice system was ever used against alien enemy combatants captured overseas during a war....

"Bart"'s seeming preference would be a .223 round to the head at close range (an approach that was tried in Haditha recently).

... This concept is a holdover from ...

Let me finish that: "... General Washington's orders during the Revolutionary war", something that has been pointed out to "Bart" numerous times.

Getting a little more specific, the FBI is entrusted with domestic law enforcement, and that applies to spies and saboteurs. This is not new. But if you think someone's a spy or a saboteur or such, arrest them, try them and convict them. That's the appropriate task for the FBI and not one that they are not competent at. "Bart"'s 'shortcut' of slapping an "illegal enemy combatant" label on them and just locking them up indefinitely on the say-so of a maladministration that still insists (at various times) that Saddam was buddy-buddy with al Qadea would seem to be a rather dagerous policy

Cheers,
 

"Bart" DePalma says dishonestly:

Your cut and paste from FBI.gov proves my point. The FBI has long been the primary counter intelligence agency to protect the nation from foreign espionage. This is a domestic law enforcement matter.

In contrast, during WWII, the US did not consider trying foreign enemy combatants captured overseas as criminals under domestic law.


Ummmm, that's (in part) because most "foreign enemy combatants" were not criminals, but simply soldiers.

Cheers,
 

"Bart" DePalma says:

Thus, the FBI was not involved with the interrogation of enemy combatants captured overseas.

Since the Geneva Conventions, such interrogations are not only pretty much pointless but illegal if coercive. "Bart" (and Dubya) wants to change all that. "Bart" simply doesn't care for the Geneva Conventions. A typical "authoritarian conservative" as described by John Dean in his latest book ... IOW, a Schutzstaffel candidate.

Cheers,
 

"Bart" DePalma said:

The FBI only got involved when enemy saboteurs entered the United States.

I think this just shows that "Bart" is hard of reading. From the comment he's responding to:

[other michael]: "In 1936, President Roosevelt directed the FBI to investigate potential subversion by Nazi and Communist organizations. In 1940, he tasked the Bureau with responsibility for foreign intelligence in the western hemisphere and domestic security in the United States. In response, the Bureau created a Special Intelligence Service (SIS) Division in June 1940. The SIS sent undercover FBI Agents throughout the Western Hemisphere. These Agents successfully identified some 1,300 Axis intelligence agents (about 10% of whom were prosecuted). When President Truman ordered the program's end in 1947, several former SIS offices became the backbone of the FBI's foreign liaison efforts, now serving as Legal Attaché Offices. FBI efforts also thwarted many espionage, sabotage, and propaganda attempts on the home front, including Frederick Duquesne's spy ring in 1941 and George Dasch's band of saboteurs in 1942."

Cheers,
 

Since the Geneva Conventions, such interrogations are not only pretty much pointless but illegal if coercive.

Such interrogations were illegal even before Geneva. In 1863, General Orders 100, Art. 16 said, in relevant part:

"Military necessity does not admit of cruelty - that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions." http://www.yale.edu/lawweb/avalon/lieber.htm#art16
 

"Bart" DePalma says dishonestly:

[Amicus]: One is the cost of 'over there'.

What is the value of stopping another 9/11, saving 3500 lives and keeping a million citizens from being unemployed?


Notice how less than 3000 magically becomes "3500" as the U.S. Iraqi casualties starts to approach (and soon to exceed) the actual 9/11 number? Coincidence? I think not.

FWIW, another assumption here is that without the 'extreme measures' that Dubya has imposed, there would inevitably be another successful attack of the same magnitude as the 9/11 tragedy. "Bart" leaves the proof of this, along with his assertion of a "million ... unemployed" as an exercise for the reader. But I'd note that the debit for the 9/11 attacks themselves falls on the Dubya maladministration ... the one that had the failure of "imagination" but which now expects to do the job instead through quasi-fascism.

Cheers,
 

"Bart" DePalma says:

How many of the al Qaeda high command based in Afghanistan are still free or alive?

I couldn't tell you. But "Bart" can't tell you either. Not to mention, "Bart" assumes that there's a fixed finite pool of "al Qaeda", in addition that this pool is invariant in number depending on what we do. Bad assumption; almost assuredly false.

Cheers,
 

"Bart" DePalma talks out of both sides of his mouth:

Moreover, do I have to list all of the massacres of the citizens of other countries who allied themselves with us in this war?

But ... but ... but ... I thought "Bart" said that Fearless Leader Dubya was mopping 'em up..... I'm sooooo confoozed....

Cheers,
 

Mark Field said:

Such interrogations were illegal even before Geneva.

Thanks for the info. "Bart" will read it, but not understand it. See, that was before 9/11. This is after; everything's changed, including law, history, and reality itself.

Cheers,Mark Field said:

Such interrogations were illegal even before Geneva.

Thanks for the info. "Bart" will read it, but not understand it. See, that was before 9/11. This is after; everything's changed, including law, history, and reality itself.

Cheers,
 

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