Balkinization  

Sunday, November 26, 2006

What Makes a War?

David Luban

Today’s New York Times provides this analysis of a curious semantic question: whether the catastrophic violence ruining Iraq is or is not a "civil war." It turns out (unsurprisingly) that politics, not lexicography, drives the debate. The U.S. government refuses to call the bombings and killings in Iraq a "civil war" because that would imply American failure in the invasion’s aftermath. Instead, it is "ethnic violence" or an "insurgency," which to my ears connotes a relatively small-scale uprising against a legitimate government.

Curiously, a parallel debate exists over whether the U.S. conflict with Al Qaeda is or is not a "war." The conflict against Al Qaeda is of course far smaller than the violence in Iraq – not only in absolute numbers of casualties, but also in the density of casualties, that is, casualties per unit of time. But here the government’s position practically from 9/11 on has been that it is a genuine war. This, despite the fact that most of the time, in most of the world, it is indistinguishable from peace. So Iraq is an insurgency or ethnic violence, not a war; but the struggle against Al Qaeda is a war.

Here too, the motive is political, in two different ways. First, most obviously, it allowed President Bush to wrap himself in the mantle of "war president," a resolute, noble figure around whom Americans should rally. As "war president," Bush pretty much had his way in elections until November 2006.

But calling the conflict with Al Qaeda a "war" served a deeper political purpose as well. If it is a war, then the President’s "war powers" kick in. Bush, Cheney, and advisors such as David Addington and John Yoo had been searching for ways to expand executive power, and this was the golden opportunity. Their constitutional theory is this: the President is commander-in-chief of the armed forces, and as such he has wide, virtually plenary, powers over the battlefield – the power to order troops to kill the enemy, the power to detain enemy captives until the battle is over, the power to seek intelligence through fair means or foul. On the battlefield, commanders-in-chief are near dictators. They are like Patton at the Battle of the Bulge. And, in the Global War on Terror, the whole world is the battlefield.

Better yet for the executive power freaks, only the President is the commander-in-chief, so the separation of powers suggests that any efforts to limit what the President does in pursuit of his war on terror would be unconstitutional. The idea that Congress could stop the President from, say, warrantless wiretapping within the U.S. (the "battlefield"), or pass a law forbidding the President to interrogate prisoners through torture, would be – on this topsy-turvy logic – "unprecedented" interference by civilians with a battlefield commander. Not only unprecedented, of course – it would also be insanely unwise. You don’t let a bunch of congressmen and judges second-guess Patton’s tank tactics. In reality, of course, there is nothing "unprecedented" about asserting that the President is not above the law; it's the opposite assertion that is startling and scary.

The Bush constitutional theory of the "commander-in-chief override," according to which the commander-in-chief power trumps acts of Congress, appeared most famously in the August 1, 2002 "torture" memo, later withdrawn. There, the idea was that it would be unconstitutional interference for Congress to enforce criminal laws prohibiting torture, if the torturing was done by the President’s agents (pp. 33-39). Public outrage against this theory was one reason the Justice Department withdrew the torture memo.

But the commander-in-chief override also appears in an Office of Legal Counsel opinion (written by John Yoo) of September 25, 2001 – and that memo has never been withdrawn. Until we learn otherwise, it is still the way the executive branch understands its constitutional prerogatives. At every moment, therefore, we live under battlefield rules – virtual military dictatorship – if the President says we do.

Does that mean that it was a disastrous mistake to label the conflict with Al Qaeda a "war"? Many people, including friends in the human rights community, think the answer is yes. They reject the "war" label, insisting instead that peacetime rules of due process apply, and are sufficient for national security.

I don’t see matters that way. The U.S. government correctly interpreted 9/11 as an act of war, and retrospectively observed that Al Qaeda’s earlier attacks on the U.S.S. Cole and the U.S. embassies in Tanzania and Kenya were also acts of war. That is because they formed a pattern, indicating a plan and a campaign. I think this is right. While it may sound peculiar to say that a nation could be at war for several years without knowing it, there is nothing odd about noticing a pattern among attacks where at first there seemed to be no pattern. Most importantly, what makes these patterns of attack a "war" was the political reason they took place. They were launched by an enemy that had a political aim (restoring the Arab world to the greatness of a unified caliphate), a grand strategy (inciting popular uprisings against despotic Arab regimes), and a set of tactics (high-visibility terrorist attacks against Western targets, selected on political grounds). If war is politics by other means, this is war. (However, the Al Qaeda grand strategy has been a dismal failure. No popular uprisings occurred in the Arab world after 9/11, and the only despot who has fallen is Saddam Hussein, thanks to the U.S. rather than to Al Qaeda. Through the ironies of the Law of Unintended Consequences, Al Qaeda’s long-term plan of a restored Sunni caliphate has instead led, via the U.S. Iraq misadventure, to a resurgence of Shi’ite power from Iran westward through Iraq and Syria all the way to Lebanon.)

The real fallacy does not lie in labeling the struggle with Al Qaeda a "war," but in the false constitutional theory that gives the President a vast set of "war powers" to be used everywhere he discerns a "battlefield," which of course can be anywhere on Earth. Nothing in the Constitution suggests anything of the sort, and it is hard to see why a democratic constitution ought to do so. Perhaps, in a moment of supreme emergency, the President would be compelled to declare martial law. Bush’s constitutional theory turns a hypothetical "state of exception" into a long-term state of siege, the basic tactic of tyrants for the past two centuries, as Giorgio Agamben notes in his remarkable book State of Exception. Under the Bush theory, moreover, the President can have his martial law without ever declaring it publicly. That is the significance of the Administration’s secret illegal wiretapping. In their view, it was not illegal: it was part and parcel of the President’s war powers. But the public need not and should not know that the President was exercising those powers, because that might lead to political blowback that would interfere with his war plan. In other words, the fact that our phone conversations fall under a kind of martial law was a state secret.

Outrageously, we have seen U.S. courts extend the "state secret" logic to amazing extremes. Lawsuits by Maher Arar (414 F.Supp.2d 250 (E.D.N.Y. 2006)) and Khalid el-Masri (437 F.Supp.2d 530 (E.D.Va. 2006)) seeking justice for their kidnappings and renditions by U.S. agents were tossed out of federal court on the ground that revealing secret U.S. misconduct could harm national security. That is the same argument the government has now offered to deny Majid Khan (detained in Guantanamo) access to lawyers: he might tell them how he was tortured, and that is a state secret of utmost gravity. (See the posts by Jack and Marty.)

In the end, what's wrong with calling the struggle against Al Qaeda a "war" is not that the war label is inaccurate. Rather, it's that the administration uses that label to justify an outrageous presidential power-grab, which apparently includes the power to conceal just how much power the President has grabbed. Oddly, it appears that not calling the Iraq debacle a "civil war" serves the same purpose: concealment for political reasons. Language becomes a tool to obfuscate, not to communicate. War is peace.

Comments:

If you separate the war powers from the use of the word "war", than I guess I agree with you. Then there is no difference between calling it a struggle or a war. But given the historical precedent I don't really see how you can say that there is a war, but the president cannot revert to what we got used to call "war powers".
 

When the FBI gets a warrant to monitor the phone calls of an ordinary drug dealer, they keep the existence of the wiretap secret. Any ordinary person who calls this number for perfectly innocent purposes unknowingly gets the conversation recorded. So keeping a national security program intercepting communication with Al Qaeda secret is not unreasonable in itself.

The question is oversight. In a criminal justice investigation, the oversight is through the courts. In a national security investigation, FISA also requires court supervision, but only if the conversation is acquired inside the United States.

Which then leaves a third situation that neither side seems to want to discuss. The NSA program admits to acquiring some international conversations involving a US Person on one end and a member of Al Qaeda on the other. This "communication with the enemy" may be perfectly innocent, just as a phone call to the drug dealer from a neighbor who wants to borrow hedge trimmers. However, the NSA (part of the DOD and therefore a military agency) is monitoring calls to the enemy in time of war. There is an inherent authority in time of war to intercept communications with the enemy, although there is absolutely no reason to believe that it is a Presidental power from Article II.

Rather, military signals intelligence like the rest of military procedure is subject to the Article I authority of Congress to make regulations for the armed forces. If Congress wants to prohibit the NSA program, they can do so (a position directly in conflict with the White House point of view). However, FISA does not prohibit outright. It asserts that certain domestic intelligence activity requires a warrant from a court.

This brings up what should be the real legal question about the NSA program. If you accept that we are at war with Al Qaeda, and that the intercepted communications involved the enemy, and NSA is part of the military, then does Congress have the authority to require Judicial approval of a routine military chain of command decision?

Article III defines the one branch of government to which the Constitution grants no War power. Congress can declare war, write regulations for the military, and appropriate funds. The President is Commander in Chief. Article III gives the courts no War Power. In this history of the country, no US Army has ever obtained a warrant from a judge to march on private property or to search and seize the strategic high ground. The bloodiest battle in US history, Antietam, was fought in a cornfield belonging to David R. Miller without either side getting the Warrant the Constitution would require of police to enter private property.

Congress cannot by statute introduce Article III participation in a purely military wartime decision. If you want that, you need to amend the Constitution. FISA is fine in peace time. It is fine today in regulating communication with any foreign power except Al Qaeda. It is fine regulating communications with Al Qaeda intercepted by the FBI. It just doesn't work when applied to a wartime signals intelligence operation against the enemy conducted by part of the DOD. Congress is certainly free to introduce oversight on even military operations, but it must do so within the chain of command. Since the President approved this operation himself, no further approval can be required.

Some have pointed to the "border search" doctrine asserting that there is less protection against a search for contraband entering or leaving the US. Whether this applies to communications is unclear. However, in time of war the borders of the US are a de jure line of military defense (ex parte Quirin). So in the special case that there is a war, that communications involve the enemy in that war, that the agency monitoring the communications is part of the military, and that as has been suggested by critics, the NSA may have acquired the communication from the international switching facility in New Jersey that connects to the transatlantic telephone cables, then this is not just the peacetime border search that allows Customs to search ships. This is a military line of defense that allows the Navy to sink enemy ships. Communications with the enemy intercepted while crossing a line of military defense falls into a separate and even more complicated set of legal questions that so far nobody has discussed.

However, there is a way to cut through this with one decision. If, as seems reasonable, Congress lacks the authority to require Judicial participation in military decisions, FISA can be read to simply prohibit the NSA from acquiring conversations inside the US. Congress can certainly make such a prohibition, and it is reasonable to assert that if the FISA court is unable to issue a warrant then the default is that the activity is prohibited rather than that it is permitted. Besides, it is so trivial for the NSA to acquire the conversations outside the US that such a prohibition is meaningless, as is all the discussion about this question over the last year. Fortunately, a question doesn't have to be meaningful to raise a whole lot of interesting legal issues.
 

On the semantics of the vocabule war, I am reminded of the tong wars, although in the AQ sense the goal is a blend of ideologies beyond antimercantilist motives.

And on the various forms of court stripping or state secrets defense employed to shield the executive, I was researching recently about the Barr memo written at Office of Legal Counsel in 1989 at the outset of Bush-I's formal presidency; that memo* is depicted as one of the seminal arguments from OLC which fed the later unitary and impervious executive theory of the presidency. In the latter regard, and relating to congressional subpoena efficacy there is an interesting 2001 Congressional Research Service document by Louis Fisher carrying out a thorough history of various interbranch disputes over information sharing**. These are interesting concerns, and seem germane to the disputes which have been the matrix of the current administration's interaction with congress, as well as the judiciary.
----
*13 Op. O.L.C. 299 July 27, 1989.
**RL30966
 

And how about the "War on Drugs" and the "War on Poverty?" Our political semantics is both erroneous and miscast. Was Vietnam a "war," or a "conflict?" Those who served know it was a "war," while those who bade them insisted it was a "conflict." Then, we can ask, What are American "values?" These "values" used to be cotemporaneous with the Englightenment's liberal values, but now they have a decidedly moral and religious cast that the Founders would have found immensely disagreeable. Indeed, "liberal" is now a pejorative, while "conservative" is estimable. But even "new liberals" and progressives contributed to the contempt of "liberalism." As J. L. Austin demanded, "we must mean what we say." As partisans have learned, it's not what we "mean," much less what we "say," it's what we "abuse" that matters. Austin, of course, decried linguistic abuse. It's now the quintessential form of politics, from fundamentalists to postmodernists. Rhetoric, not substance, linguistic abuse, not linguistic use. Destable that signifier!
 

The NSA program admits to acquiring some international conversations involving a US Person on one end and a member of Al Qaeda on the other.

No, the wiretapping extends beyond "Al Qaeda members":

1. In his radio address of December 17, 2005, President Bush said that, "...I authorized the National Security Agency ... to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations."

2. In the press conference on December 19, 2005, Gonzales said warrantless surveillance was employed "where there was a reasonable basis to conclude [!] that one party is a member of Al Qaeda, affiliated with Al Qaeda, or a member of an organization affiliated with Al Qaeda."

3. The DOJ's whitepaper of January 2006 acknowledges that "the NSA intercept[ed] international communications into and out of the United States of persons linked to Al Qaeda or related terrorist organizations."

Your incorrect premise undercuts the remainder of your argument. If the wiretaps do not involve someone with whom we are "at war", then the whole Art. II argument vanishes.

Note that I left aside the question whether we are actually "at war" with Al Qaeda.

Article III gives the courts no War Power. In this history of the country, no US Army has ever obtained a warrant from a judge to march on private property or to search and seize the strategic high ground.

The courts very much do exercise power during war and over the conduct thereof. The most obvious examples involve prize cases, which are adjudicated under admiralty law; the courts have heard such cases since nearly day one of the Constitution.

As another example, the Quirin case held that the Court could review the Executive determination that someone was an enemy combatant. Similarly, the Court has reviewed trials by military commission (Milligan).

it is so trivial for the NSA to acquire the conversations outside the US that such a prohibition is meaningless, as is all the discussion about this question over the last year.

It must not be all that trivial, since the administration continues both to do so and to assert its right to do so, despite FISA's express prohibition against doing so.
 

As Congress specified it, we are at war with "those nations, organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". Technically Al Qaeda is the name of a waqf, an Islamic charitable foundation created to support the fighters in the Afghan war with the Russians. Technically, Al Qaeda is not a military force at all and was not responsible for 9/11. Technically it was the military forces and persons associated with Al Qaeda that caused the attack. Normally we do not bother to make this distinction. The phrasing used in the statements quoted are still consistent with the claim that all of the people targeted by the NSA fall within the scope defined by Congress as wartime enemies. If you want to complain to someone, complain to Bin Laden that he doesn't have a nice clean organizational structure that would make the phrasing simpler.

I was careful not to say that the courts have no role in war. They have the same role in war as in peace. They, however, have no power over chain of command decisions. If the Union Army waited to get a warrant from a judge before occupying Little Roundtop, then Lee would have been half way to New York before they took up positions. If they waited for the Circuit court to hear the appeal, Al Qaeda would be at war with the CSA instead of the USA.
 

The only reason why there is even a debate about these terms is pure politics.

A war is a state of open, armed, often prolonged conflict carried on between nations, states, or parties.

Terrorists are armed forces. When our armed forces and terrorist armed forces engage one another across the world, you are at war.

Both the pro and anti military groups in this country have tried to claim that we are and are not officially at war when they thought it served their interests. However, for the grunt on the ground and most people who look at the conflict without an agenda, there is no question that we are at war.

The semantic battle over whether the war in Iraq is a "civil war" is used purely for propaganda purposes.

The anti military left's pardigm is Vietnam and their leading myth is that a civil war is unwinnable. Thus, they have been calling Iraq a civil war for four years now so they can argue for a retreat and surrender ala Vietnam.

The pro military right is simply reacting to the left's propaganda in its knee jerk denials that there is anything like a civil war going on in Iraq.

At its most basic level, a civil war is simply a conflict between groups within the same country. Under that definition, Iraq has been in civil war since the beginning. (As has Afghanistan, but you don't hear the left calling that a civil war).

However, in a traditional civil war, each group has a military force fighting for control of the country. To use the left's favorite paradigm, in Vietnam there was a Soviet supplied half million man North Vietnamese Amy poised to conquer the South when we left.

Unlike traditional civil wars, there are no warring armies attempting to seize control of Iraq. Instead, as in Ireland, Spain and Israel, terrorist groups in Iraq are busy murdering civilians and have no real capability to militarily seize control of the country.

The Sunni insurgency might number 20,000 on its best day, is dispersed across the Sunni Triangle and is lucky if it can launch a company size raid. In contrast, the Iraqi military currently numbers about 200,000 and has launched coordinated brigade size offensives which have seized and held cities. When the Sunni insurgency launches one of their infrequent attacks against the Iraqi military, they lose badly as they recently did in Baquba.

http://www.nytimes.com/2006/11/26/
world/middleeast/26iraq.
html?_r=1&ref=world&oref=slogin

The truth is that we have a terrorist civil war against civilians which has no chance of militarily taking control of the country. Iraq is nothing like Vietnam. Iraq is Northern Ireland on steroids. And like Northern Ireland, the terrorist war will eventually tire and stop because the terrorist means are incapable of achieving the end of control over the country.
 

As Congress specified it, we are at war with "those nations, organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons".

This doesn't help your argument at all. This definition includes fewer people than the generic designation "Al Qaeda".

In any case, persons "linked to Al Qaeda" -- to say nothing of persons "linked" to "related organizations" -- clearly do not fall within the scope of the AUMF.

I was careful not to say that the courts have no role in war.

From your post above: "Article III defines the one branch of government to which the Constitution grants no War power. Congress can declare war, write regulations for the military, and appropriate funds. The President is Commander in Chief. Article III gives the courts no War Power."

They, however, have no power over chain of command decisions.

This is overbroad. The examples I gave clearly fall within "chain of command" decisions. Designation as an enemy combatant is a classic example.

What I think you mean is that courts ordinarily don't get to act until after the military does. After the fact, courts can award damages, release prisoners who are wrongly held, etc.

FISA might seem to infringe on this by interposing the courts beforehand. We can debate the extent to which this is appropriate. What is NOT subject to debate is that (1) Congress passed such a law, and (2) the President is obligated to obey that law unless and until he proves that he need not.

Your posts raise the merits of FISA. Whether FISA is good law or bad law is not really the issue. Bush's disobedience of the law he swore to uphold constitutes the abuse.
 

Howard Gilbert said...

However, the NSA (part of the DOD and therefore a military agency) is monitoring calls to the enemy in time of war. There is an inherent authority in time of war to intercept communications with the enemy, although there is absolutely no reason to believe that it is a Presidental power from Article II. Rather, military signals intelligence like the rest of military procedure is subject to the Article I authority of Congress to make regulations for the armed forces.

Federal courts have unanimously held that the Constitution grants the President, as commander in chief and sole representative of the United States in foreign affairs, the implied power of directing and conducting warrantless intelligence gathering against foreign groups and their agents in the United States. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974). See also In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).

Article I of the Constitution does not enumerate a power for Congress to direct or conduct foreign intelligence gathering. Congress’ power “[t]o make Rules for the Government and Regulation of the land and naval Forces” pursuant to Art. I, Sec. 8(14) of the Constitution does not imply a power to direct or conduct foreign intelligence gathering. Designating the targets of foreign surveillance gathering is an incident of military command, which the Constitution grants only to the President as commander in chief. Congress’s power under Art. I, Sec. 8(14) is limited to enacting legislation like the Uniform Code of Military Justice to ensure the order and good conduct of service members.

Because Congress was not exercising a concurrent power with the President to direct and conduct foreign intelligence gathering when it enacted FISA, the Jackson tripartite test set forth in Youngstown Sheet & Tube Co. v. Sawyer, does not apply to the NSA Program. 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring). Justice Jackson’s test only applies to situations where Congress has concurrent constitutional power with the President over a particular act. For example, in Youngstown Sheet & Tube Co., the President attempted to seize a steel plant under his authority as commander-in-chief when Congress had already exerted its constitutional power in the area of property seizures.
 

For what it's worth, Gonzales says we are not "at war". So there is not a way, but the president still gets to use "war powers" - shifting arguments of totalitarianism.

GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization
to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.

U.S. Senate Judiciary Committee Holds a Hearing on Wartime Executiv..., http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR
 

"Federal courts have unanimously held that the Constitution grants the President, as commander in chief and sole representative of the United States in foreign affairs, the implied power of directing and conducting warrantless intelligence gathering against foreign groups and their agents in the United States"

This mixes up two of the four different parallel independent legal regimes for search, seizure, and electronic surveillance:

1) the criminal justice system, where a judge (generally) must issue a specific warrant on probable cause (related to evidence of a crime).
2) the legislatively authorized general search of (for example) passengers at an airport or people entering a Federal building, like the Supreme Court, who must stop at the door and accept a warrentless search without probable cause to make sure they are not carrying weapons.
[These first two have nothing to do with the NSA, but should be mentioned so they don't get confused with the last two that both apply]
3) The National Security search of Agents of a Foreign Power which was the purpose of FISA. This is not a criminal case, because spies try to avoid committing crimes. The textbook example are the Japanese Consular officials who in late 1941 took long walks along the hillsides near Honolulu, then radioed Tokyo each night about the ships at anchor and any changes in the defense of Perl Harbor. They were walking on public roads and reporting things in plain sight, but had the dots been connected properly this should have been important intelligence. Since no crime is involved, this is different from the usual warrant, and as pointed out by the previous post has been found to be constitutional by the courts because it is "reasonable". However, FISA restricts it by statute, and while the President does control Foreign Affairs I don't see how that blocks Congressional from establishing oversight of domestic activity.
4) The search, seizure, and signals intelligence of the armed forces during war when deployed in battle or in the defense of our borders. This does not extend into the US unless we are invaded, but it may apply to border defense.

Now my argument is about 4), which applies to the armed forces and may trickle up to the President because of his role as Commander in Chief, but which is not immune to Congressional regulation of the armed forces.

You are quoting case law on 3), which is the normal (maybe the exclusive) legal framework in which the NSA and FISA dispute has been discussed. I believe that when you drill down, most of the DOJ and White House claims of Presidential authority make the same mistake of mixing together the types 3) and 4) searches. Confuse the two and you may claim some mystical Article II authority. Separate them and examine both individually and you see that neither represents an Executive Power immune to Congressional lawmaking (although I suggest that it points out problems with FISA as written).

Read FISA carefully. Then try a bit of fiction. Al Qaeda may not be able to hold ground, but with thousands of people ready to die it can certainly mount a commando style raid on the thousands of miles of undefended coastline. Assume the commandos land and meet up with sleeper agents prepositioned in the US to rent cars and buy cellphones. Now you have an invading force mixed with some US Persons covered by FISA, and as written we may need a warrant from the FISA court or approval from the AG to monitor conversations between US Persons with the invading units over cell phones. Congress didn't think about that when they wrote FISA.

"Bush's disobedience of the law he swore to uphold constitutes the abuse." This is where we have to distinguish between disobedience of law and testing the ambiguities. When a law is badly written and its scope is unclear, I want the army to locate and kill or capture all the invading commandos first, and then ask the DOJ later on whether elements of an invading army have a "reasonable expectation of privacy" (which is about the only way you get around applying FISA in this scenario). If there is a reasonable argument for what the President is doing, I would cut some slack. Problem is, while there is a reasonable argument, it isn't the one the President and DOJ are giving. So let me rephrase the quoted claim and say that when the President disobeys the law and gives a completely silly legal argument to support his action, he is deserving of blame even when there is another argument that might justify his action of which he appears to be completely unaware.
 

Howard Gilbert:

I am not arguing that FISA was not an effort by Congress to direct foreign intelligence gathering. Rather, I am arguing that FISA is an unconstitutional effort to do so.

The constitutional division of powers for foreign and military affairs essentially breaks down to the President having a general power over all such affairs which can be trumped by Congress when exercising an enumerated power in Article I.

The Hamdan case is a perfect example of this principle. The Court recognized the power of the President to set rules for captures which is only trumped when the Congress exercises its express Article I powers to set rules for captures.

I have yet to have a FISA proponent offer a provision of Article I which likewise expressly grants Congress the power to direct intelligence gathering. Further, no proponent has offered case law which interprets a general provision of Article I to allow Congress to direct intelligence gathering.

Nor can one reasonably argue that Congress is enforcing the 4th Amendment since the numerous cases I cited above unanimously held that the 4th Amendment does not require a warrant for surveillance conducted primarily for intelligence gathering against foreign groups or their agents of any nationality in the United States.
 

Mr. De Palma:
We can bat legal theories around all day, but factual accuracy is something else. The Iraq-Northern Ireland comparison is so incorrect that it can safely be labeled false. Statements like that often undermine other arguments.
 

Bart Depalma:"And like Northern Ireland, the terrorist war will eventually tire and stop because the terrorist means are incapable of achieving the end of control over the country."

That's unlikely. Sunnis and Shi'as have been in a state of conflict since 632. It only shows signs of growing more violent, not abating. Its really a matter of which violent faction will end up in control.
 

Bart Depalma:"And like Northern Ireland, the terrorist war will eventually tire and stop because the terrorist means are incapable of achieving the end of control over the country."

sparky said...

Mr. De Palma: We can bat legal theories around all day, but factual accuracy is something else. The Iraq-Northern Ireland comparison is so incorrect that it can safely be labeled false. Statements like that often undermine other arguments.


Why is the analogy false? Both were involved in religious wars which had been going on and off for centuries and whose current means of combat were terrorist bombing and assassination campaigns aimed primarily at civilians.

bitswapper said...

That's unlikely. Sunnis and Shi'as have been in a state of conflict since 632. It only shows signs of growing more violent, not abating. Its really a matter of which violent faction will end up in control.


The Catholic and Protestant factions in Ireland had been going at it for centuries as well before they finally threw in the towel.

Democracies are better at mediating disputes like these.
 

The Catholic and Protestant factions in Ireland had been going at it for centuries as well before they finally threw in the towel.

You might want to call Michael Stone and remind him that he was supposed to throw in the towel, too.
 

Sorry to double post in a row, but I noticed something above while re-reading the comments.

Terrorists are armed forces. When our armed forces and terrorist armed forces engage one another across the world, you are at war.

This is an interesting idea, because if those terrorists are Baathists, they're an armed force loyal to the former regime of Iraq, which (while not being recognized as a government by the US at this point) was a signatory to the Geneva Conventions.

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.


If you are right and terrorists are "armed forces," then any "Captures" with demonstrated affiliation to the previous government could, by your definition, qualify as prisoners of war, and therefore should be protected under the Geneva Conventions. :)
 

'War' implies armed battle between state or national forces. What state or national force is Bin Laden and the rest of his terrorist imitators? Of course, none at all. The politics of "war on terror" sets out to suggest precisely that states are involved and behind the terrorism. That is Big Brother speaking. In this context, we should not describe our contestation with these privateers as war. That serves the attack on the US Constitution which David deplores. Why not call this attack on our Constitution "a war on the Constitution"? What sort of group would do that? Try "fascist". Back to Scott Horton and Carl Schmitt.
 

PMS_Chicago said...

Sorry to double post in a row, but I noticed something above while re-reading the comments.

BD: Terrorists are armed forces. When our armed forces and terrorist armed forces engage one another across the world, you are at war.

This is an interesting idea, because if those terrorists are Baathists, they're an armed force loyal to the former regime of Iraq, which (while not being recognized as a government by the US at this point) was a signatory to the Geneva Conventions.

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

If you are right and terrorists are "armed forces," then any "Captures" with demonstrated affiliation to the previous government could, by your definition, qualify as prisoners of war, and therefore should be protected under the Geneva Conventions.


You might want to read down the entire list of qualifications to be given POW status.

You have to fight in uniforms or with distinctive markings under a command that recognizes the Geneve Conventions. The Baathist terrorists do not meet these qualifications.
 

Bart,

Simple question: where the Nazis legally justified in holding and executing alleged partisans during WWII as "illegal enemy combatants", with either no trial or a cursory review?

I've always understood that the post WWII rules of war were designed to eliminate that kind of treatment, by requiring that either you treat an an enemy as a POW, or a civilian, and then try them, either in a full court martial for a POW or civilian trial for a civilian. Otherwise, it seems that there's a few SS soldiers who are due reparations...

Additional Protocol, article 44 to the Geneva Convention
1. Any combatant, as defined in Article 43Database 'IHL - Treaties & Comments', View '1.Traités \1.2. Par Article', who falls into the power of an adverse Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an
armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and

(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (cDatabase 'IHL - Treaties & Comments', View '1.Traités \1.2. Par Article'.

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.


That would seem to say that you have to treat the Ba'athist insurgents
as POWs, then you can try them as illegal combatants, under the same conditions that you would try your own soldiers for these crimes. Or for that matter, members of the Taliban when they were acting as the government of Afghanistan.

Even the most extreme cases seem to fall under convention IV:
Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.


There, once again, the illegal combatant can be tried, but here as a civilian.

It seems you only have an out where the person is a national of a country that you are not at war with, or is a national of a country that is not a signatory. But in those cases, those individuals have not committed war crimes under Geneva at all, since neither you nor they are bound by the convention. They are just bad guys, to be treated under regular law, which is a different question. In that case, precedent would set the minimum standard to our treatment of the Natives -- didn't they get at least cursory trials? On the other hand, we did hold them indefinitely in concentration camps. That standard would allow us to hold, and only hold, non-Iraqi and non-Afghani AQ folks indefinitely, and use military tribunals against them. And of course the alien AQs would claim to have been nationalized.
 

It seems there's actually an example of a treaty describing "illegal enemy combatants":
Print this page
Convention of the OAU for the Elimination of Mercenarism in Africa. Libreville, 3rd July 1977.


The Africans declared mercenaries as illegal combatants. Their solution: treat them as civilians, with full trials --- and execute them.
 

@Jojo:

The stuff from Article 44 is very helpful in this case. A pity that the US and Iraq never ratified it. That doesn't mean that the additional protocols don't constitute widely accepted international law, though.

I only meant to point out to Mr. Depalma that his insistence on the AEUC designation is standing on ever-thinner ice if he conceptualizes terrorists to be "armed forces." As anti-colonial militants, they could also be covered, as you point out, in the additional protocols.

@BD: You asked me to "read down the entire list of qualifications to be given POW status." I counter-suggest that you reread the text and pay particular attention to the phrase "one of the following categories." Then, I think you will agree that if one calls the terrorists "armed forces," then they are clearly covered under the category found in Art. 4 A. (1).

All that talk about uniforms and commands and whatnot refers to militias or volunteer corps that are [b]not[/b] associated with the armed forces (hence the qualifier "other" in the text).

So, back to your original post in this thread: terrorists are NOT armed forces. If they are, you need to reconsider your position on the GC.
 

"Bart" DePalma puts up this "straw man":

I have yet to have a FISA proponent offer a provision of Article I which likewise expressly grants Congress the power to direct intelligence gathering. Further, no proponent has offered case law which interprets a general provision of Article I to allow Congress to direct intelligence gathering.

Well, that's passing strange. Because I have yet to hear a FISA proponent claim that Congress has the power to direct intelligence gathering. As I uderstand it, Congress merely regulated the means of legal intelligence gathering.

Nothing like tilting at windmills when you fancy yourself a giant killer, eh, "Bart"?

Cheers,
 

David, I'm afraid that we all have a learning curve, still, to come up on smart counter-terrorism.

Declaring a "war on terror" was the first step in a poor conceptualization of the fight with al-qa'ida. It was a damaging thing to do, including from a pedogogical perspective.

As you can see now, the President is no longer using this language. Rumsfeld tried, for a while, too, to get away from "GWOT", as well (although, sadly, the Press took him to task on it, for not being consistent).

You may want to have a look at this article, or others from this author at around the same time (i.e. early on, post 9/11/2001):

http://www.foreignaffairs.org/20020101facomment6553/michael-howard/what-s-in-a-name-how-to-fight-terrorism.html
 

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