Balkinization  

Wednesday, July 18, 2007

Normalizing the Fight Against Terrorism

Brian Tamanaha

In the past month, I have participated in three separate discussions with lawyers, government officials, and law professors from outside the United States, mostly Europeans, on the subject of the legal response to terrorism (including “A Symposium on Law and Liberty in the War on Terror” at the University of New South Wales in Sydney). Several related points stood out in these discussions:

First, everyone takes the threat of terrorism quite seriously, although a few remarked that on a relative scale there are perhaps greater threats.

Second, most people reject the notion that the fight against terrorism is properly characterized as a “war” (notwithstanding the above named conference). Rather, it is a significant threat to public safety, one which promises to be with us for some time.

Third, following from the second, there is a broad consensus that the response to terrorism should be conducted within standard legal mechanisms, much like any other kind of criminal proceeding, although particular accommodations might be necessary to handle classified information.

Fourth, the use of torture (or “alternative procedures”) in interrogation is unacceptable for moral, symbolic, and practical reasons.

Finally, the people who spoke obviously cherish and take pride in their legal traditions and legal principles, and have a strong conviction that these must not be sacrificed in the fight against terrorism.

We have much to learn from this more sober, but no less serious and determined response to the threat of terrorism. The several British speakers, all too aware of the manifest threat of terrorism, were especially impressive in their measured approach to the problem.

Our government's response to 9/11 was to come out with guns blazing and a "whatever it takes" attitude that too often saw the law as a hindrance. But the law is one of our great strengths. It is time to draw on this strength and normalize the fight against terrorism.

Comments:

it seems to me to be somewhat wishful thinking to equate terrorism to crime, and thus to advocate the use of standard crime-fighting procedure to combat terrorism. while terrorism is like organized crime in many ways its motivation is primarily political, instead of financial or personal. so when it is perpetrated by an organization of foreigners against the US polity, it is not simply the criminal act of an individual or the largely non-political act of a rent-seeking crime syndicate. it is more dangerous because less predictable and less tied to the particular circumstance of the organization or individual. this difference could arguably justify a different response than that taken to ordinary crime.
 

while terrorism is like organized crime in many ways its motivation is primarily political, instead of financial or personal. so when it is perpetrated by an organization of foreigners against the US polity, it is not simply the criminal act of an individual or the largely non-political act of a rent-seeking crime syndicate. it is more dangerous because less predictable and less tied to the particular circumstance of the organization or individual. this difference could arguably justify a different response than that taken to ordinary crime.

All this was equally true of the anarchists (late 19th/early 20th centuries) and the various radical groups of the 1960s and 70s (Baader-Meinhof, Weather Underground, etc.). We used criminal processes against them.

Criminal process isn't magic, of course. Terrorist acts still took place; people still got killed. Consider, though, that the military response to anarchist terror resulted in WWI.
 

Professor Tamanaha:

During these discussions with our EU colleagues, was any effort given to determining how soldiers are supposed to:

(1) Gather evidence including testimony from foreign battlefields.

Our soldiers are not trained police officers, a battlefield is not a controlled crime scene and, as we have discovered in Iraq prosecutions of our own troops, enemy civilians do not make reliable courtroom witnesses.

(2) Gain intelligence from captured terrorists.

Under our criminal justice system, the suspect has a right to silence. Are the participants in these discussions actually advocating extending a right to silence to al Qaeda like Khalid Sheik Muhammad?

(3) Keep terrorists from returning to the battlefield.

The purpose of detaining prisoners of war for the duration of the conflict is to prevent them from returning to the fight. Are the participants in these discussions actually advocating releasing captured terrorists back onto the battlefield if our military cannot prove a criminal case beyond a reasonable doubt after extending a right to silence to the terrorist?

I would take issue with your application of the term "normalizing" to the radical suggestion that captured enemy combatants in a war be treated like civilian criminal suspects. The United States has never before gone down this path for good reason.
 

Brian; I think this phrase sums up your post:

Finally, the people who spoke obviously cherish and take pride in their legal traditions and legal principles, and have a strong conviction that these must not be sacrificed in the fight against terrorism.

It is a question of what we respect; ourselves, or raw fear and power.

If we treat this as a criminal issue, we do not have to worry about soldiers collecting evidence--we use our intelligence and law enforcement assets for a task they are suited for; we do not have to worry about violating our laws, because we follow them; we do not have to worry about releasing prisoners and having them turn back into combatants, because we capture and incarcerate them in more controlled circumstances, as well as try and punish them; and we do not have to be concerned about the deaths, disruption, and displacement of hundreds of thousands of innocents and civilians to avenge ourselves on the wrong enemy.

Overreaction does not serve civilization, or our country, well; to expand on Mark Field's statement, WWI was ignited not only by a terrorist act, but a willingness on the part of governments to wage war for nationalistic pride, and the entanglements from that war precipitated WWII and its horrors. Those governments also vastly overrated their ability to win swiftly and decisively.
 

when it is perpetrated by an organization of foreigners against the US polity, it is not simply the criminal act of an individual or the largely non-political act of a rent-seeking crime syndicate.

I like it that you said "largely" non-political, because many of these organizations have internal rules and logic that in effect overlap one polity with another.

There's no reason, however, to believe that a "different response" should necessarily involve military action. Even more important is Brian's point (apparently shared by the people with whom he spoke) that even our military actions should be lawful; that is, the law should not be seen as a hindrance to presumably correct action, but as a guideline for which actions are correct.
 

Fraud Guy said...

If we treat this as a criminal issue, we do not have to worry about soldiers collecting evidence--we use our intelligence and law enforcement assets for a task they are suited for...

Are you actually suggesting that we send in the FBI and the CIA to al Qaeda occupied cities like Baquba to serve arrest and search warrants on al Qaeda terrorists where the enemy is fighting to the death and the entire city is wired up with IEDs? They would all be killed. Wars are fought by soldiers, not police.

we do not have to worry about releasing prisoners and having them turn back into combatants, because we capture and incarcerate them in more controlled circumstances, as well as try and punish them...

With respect, have you either been on a battlefield or actually prosecuted a criminal case in court? I have done both. I assure you that a battlefield is nothing like a serene and controlled crime scene on CSI and you cannot prove a criminal case beyond a reasonable doubt without substantial evidence and reliable witnesses.

The current detention regime uses the relatively low standard of preponderance of evidence and allows in a variety of evidence the federal rules of evidence would exclude and they have still mistakenly released terrorists who have returned to the battlefield against our troops. Don't you think that increasing the burden of proof by a quantum might just release a great deal far more terrorists back onto the battlefield?
 

Professor Tamanaha: Our government's response to 9/11 was to come out with guns blazing and a "whatever it takes" attitude that too often saw the law as a hindrance.

Respectfully, I think you give "the government" too much credit. The PNAC factions which had control of the White House on September 11, 2001 opportunistically seized, and held, public opinion in furtherance of well advertised and long standing goals, such as the dismantling of intelligence restrictions put in place post Cointelpro and imperialist aims in the Middle East. "The government," in the form of a completely negligent Congress (excepting the lone vote of Representative Barbara Lee of Oakland) thoughtlessly gave in to the administration's opportunism on September 18, 2001. It's all downhill from there.

As has been said many times before (the breathless stonewalling of certain sophistical hacks notwithstanding) that war is not a relationship one can rationally have with terror. Any discussion which fails to discard the nomenclature of war likewise fails on first principles to competently address the complex issues raised by the attacks of September 11, 2001.

None of which is news. And all of which approaches the frivolous, much as it is frivolous to point out "In God We Trust" on government issued currency is a clear violation of the Establishment Clause (in that it minimally elevates a set of monotheisms above other religions). While we're hashing out what to call our response to terrorist attacks, past and future, the PNAC junta is putting the finishing legal touches on the "benign" dictatorship so many Americans yearn for here at home.
 

@Mark Field,

When you elevate Alec's "...ordinary crime" comment you buy in, it seems to me, to a false bifurcation in which our responses are either military or those used for "ordinary crime". No one ever suggested the response to the attacks of September 11, 2001 should be like the response of the local police to an accusation of shoplifting or jay-walking.

So it's the innocuous seeming "ordinary" applied to the word "crime" on which the "war on terror" camp tries to peg their illegitimate responses. No one ever said nine-one-one was an "ordinary" crime, quite the contrary, it was extraordinary. And there were and are provisions for pursuing such extraordinary international criminals, unilaterally and with our global neighbors. To "declare 'war' on 'terror'" instead of using those provisions to apprehend those criminals was and is the sheerest folly. Unless, of course, you were/are part of a power faction which could opportunistically seize this chance to further your faction's long standing aims. Or a breathless true believer in the leaders of said faction.
 

Bart forgets how to parse:

They would all be killed. Wars are fought by soldiers, not police.

Of course, if we did not launch this war, we would not have to use the soldiers to keep the peace, and Baquba would not be al-Qaeda held.

My main point was this: if we had not invaded Iraq, we would not have the thousands of soldiers dead, the tens of thousands soldiers wounded, and the hundreds of thousands of non-insurgent Iraqis dead, injured, displaced, and dispossessed. Or is that too blindingly obvious for you to acknowledge?

Criminey, you actually thought I was suggesting that we send the police into the middle of combat?
 

mark

i would differentiate the anarchists in germany and the weathermen in the US by the fact that they were attempting to fight a revolution against their own societies, and not a foreign government. presumably, if they became powerful enough to present a credible revolutionary threat, they would have had to be treated as a military and not a criminal threat.

i would say that the threat threshold to be treated as a military threat is lower for foreign organized terror groups than for domestic ones.

and i am not saying we should not use criminal processes against terrorists necessarily. only that islamist terrorism doesnt clearly fall into either the category of war or of crime. terrorist activity in iraq is more like war in a traditional sense then that which is carried out against civilian targets in the US. i would say nine eleven was more like war than was the oklahoma city bombing, an outwardly similar event that seems more like a crime.

your point on ww1 is excellent, except ww1 probably would have started some other way but for the assassination.

that being said im not against a proportionate response to terrorism, especially because the self-inflicted damage attendant to a poor response, and the sheer cost of responding, are the main strategic effect of a terrorist attack.
 

Fraud Guy said...

Bart forgets how to parse: They would all be killed. Wars are fought by soldiers, not police.

Of course, if we did not launch this war, we would not have to use the soldiers to keep the peace, and Baquba would not be al-Qaeda held.


:::sigh:::

Try to get this straight.

Al Qaeda and its allies waged war against the United States and its citizens for nearly a decade before we finally waged war in return. In the interim, the United States treated this as a criminal justice matter and sent the FBI overseas to no effect. The result was more enemy attacks on the U.S. culminating in 9/11.

al Qaeda and its allies are not going to come to the U.S. to turn themselves into the FBI for processing before being released on bail. Consequently, the United States has to send its forces to the foreign countries where the enemy lives, including Iraq before the liberation.

Baquba is simply where al Qaeda fled after being engaged and defeated in Afghanistan, then engaged and defeated at an Iraqi base near the Iranian border during Operation Viking Hammer, then engaged and largely defeated in Anbar Province over the past three years, until we ran them to ground in Diyala province where we engaged and defeated them in Baqubah. As discussed above, they have fled north to Mosul where the Army has just captured (not arrested) the foreign commander of al Qaeda in Iraq.

Criminey, you actually thought I was suggesting that we send the police into the middle of combat?

OK, now I see that you do not intend to even send in the police after al Qaeda where they live.
 

Robert Link

you do the same sort of thing when you take the word ordinary at the end of my first post to mean jay walking. in context i was talking more about international drug smugglers, slavers, etc. extraordinary crime, but not exactly the same thing as terrorism in its relation to states. i was saying the motivation behind terrorism is grander, and so it is more dangerous as an ideology and more offensive to the state, hence the different response.

the false bifurcation you speak of applies to those on both sides of a debate like this. if you want to call it crime it is because you want the response to be softer and more measured, and if you want to call it war it is because you want the response to be more aggressive and active.

in reality it is someplace between the two, and if the response is too weak terrorist organizations will in the future become capable of actions that everyone will be forced to recognize are war. i think it is important in analyzing terrorism to identify those characteristics of terror which make it more like war and those which make it more like crime and to fashion our response accordingly.

from a PR standpoint, since they unabashedly declared war, i am open to the suggestion that it would have been better for us to denigrate them by treating them as criminals than for us to have declared war in kind.
 

@Alec,

With regards to my parsing of "ordinary" I can only say, "touche, and nicely put." Would to God we more often saw things like, "...open to the suggestion..." on these comments.

I am, no surprise, firm in my belief that the AUMF of September 18, 2001 was a mistake, likewise the invasions of Afghanistan and Iraq, at least insomuch as either was ostensibly about bringing to justice the evil persons behind the evil deeds of nine-one-one. That is not to say, however, that those persons could or should be pursued the way one would go after what you characterize as a "rent-seeking crime syndicate". For starters, even a liberal such as myself does not, with a rent-seeking crime syndicate, generally feel any need to take into account "legitimate grievances" of such a syndicate, whereas there is a colorable argument that nine-one-one is but a whirlwind we ourselves sowed with ill-considered policies going back to the establishment of Israel, the undermining of the pre-Shah government of Iran, and the arms deals made with Hussein and the Taliban.

Bringing to justice the evil people responsible for the evil deeds is a small job compared to the larger issue of our history of policy mistakes in the former Ottoman Empire. I look forward to learning from our interactions, and have a hunch I'll be having to do my homework to keep up.

Peace.
 

Baquba is simply where al Qaeda fled after being engaged and defeated in Afghanistan, then engaged and defeated at an Iraqi base near the Iranian border during Operation Viking Hammer, then engaged and largely defeated in Anbar Province over the past three years, until we ran them to ground in Diyala province where we engaged and defeated them in Baqubah.

So, after we defeated al-Qaeda in Afghanistan, they fled to Iraq.

...really?

You'd think it would have occurred to someone in the administration to make this argument back before the war. "Hey, this is where they all ran off to!"

In other news, Bart demonstrates how delusional you have to be in order to still support this war.
 

in reality it is someplace between the two, and if the response is too weak terrorist organizations will in the future become capable of actions that everyone will be forced to recognize are war. i think it is important in analyzing terrorism to identify those characteristics of terror which make it more like war and those which make it more like crime and to fashion our response accordingly.

I agree. What makes the "War on Terror" so difficult is that Al-Qaeda is not large enough for conventional war, but too large for conventional crime, and we do not really have any laws or procedures in between the two. The Administration's (or Bart's) response is to throw out laws altogether and say anything goes.

My response is to treat to apply the rules of war or of crime depending on which fits better until we can come up with some third alternative. For instance, I think there is no denying that 9-11 was a genuine military emergency and that authorizing the military shoot-down of planes that did not respond to order to land was appropriate. But it does not logically follow that we should shoot down any commercial plane that deviates from its course or does not respond to radio calls.

Likewise, Al-Qaeda was planning attacks on us from bases in Afghanistan, with the full consent of the Afghan government and seemed likely to continue as long as it kept its bases and government support. I therefore think that military action to destroy those bases and the government that harbored them was appropriate. But law enforcement is the appropriate model for secret organizations in countries that do not condone the terrorist presence. (Just as it worked against the various European terrorist organizations in the 1970's, as Mark Field points out).

Note to Robert: Plenty of injustices took place under the Ottoman Empire as well.
 

Note to Bart: Drop the petulent tone and preposterous misrepresentations of other people's views. You are starting to sound like Charles.
 

robert wrote:
For starters, even a liberal such as myself does not, with a rent-seeking crime syndicate, generally feel any need to take into account "legitimate grievances" of such a syndicate,

with regards to the legitimate grievances of our opponents in the "war" on terror, while they can be acknowledged from an academic and historical perspective, i do not think they should be taken into account to ameliorate the harshness with which we deal with terrorists and those that support terrorists.

in any political confrontation leading to violence one side is likely to have some legitimate gripes with the other. recognition of those should inform the eventual resolution, even if not explicitly, but probably not the conduct of the martial contest.
 

Treatment of terrorism as a domestic crime makes sense for Europe, as the threat to European populations is largely homegrown. The US should treat domestic terrorism as a criminal justice matter as well. International terrorism is a different ballgame, primarily b/c US police have no jurisdiction to make arrests of individuals located in other sovereign states without those states' permission. Where other states cooperate to bring international terrorists to justice, the criminal justice model may still be effective. Where states are not cooperative and permit terrorists to attack with impunity (if not encouragement), as in Afghanistan in 2001, the US is clearly entitled to consider military options, the conduct of which would be governed by the law of war.
 

Steve said...

So, after we defeated al-Qaeda in Afghanistan, they fled to Iraq.

...really?

You'd think it would have occurred to someone in the administration to make this argument back before the war. "Hey, this is where they all ran off to!"


The Kurds told us all about the al Insar / al Qaeda camp before the war, but we did not have any forces in Iraq to confirm the allegation.

Our Special Forces and the Kurdish Pesh Merga confirmed the story when they engaged and defeated roughly 1500 al Insar / al Qeada during the opening days of the war. We found the ID and travel documents of the al Qaeda fleeing from Afghanistan into Iraq. Unsurprisingly, the surviving al Qaeda fled to Anbar to join the Baathists. See Linda Robinson's book "Masters of Chaos," which covers various SF operations for the past generation including Operation Viking Hammer in Iraq.
 

Enlightened Layperson, what do you think we should be doing about the NW Province in Pakistan, where evidently Musharraf's writ runneth not?

I am mainly sympathetic to Tamanaha's points, but I wish someone less corrupt/nutty (I can't distinguish) than Bart were making the counterargument, and I wish that Prof. Tamanaha would address the Goldsmith-Katyal proposal for preventive detention within the rule of law.
 

Where other states cooperate to bring international terrorists to justice, the criminal justice model may still be effective. Where states are not cooperative and permit terrorists to attack with impunity (if not encouragement), as in Afghanistan in 2001, the US is clearly entitled to consider military options, the conduct of which would be governed by the law of war.

I agree with this conceptually, as well as with EL's post. I would not, however, dignify the culprits by announcing any grand "WAR ON TERROR" or similar nonsense. We might use the military to take out a pirate's nest, but we don't elevate their status by treating them as an honorable foe.
 

The Kurds told us all about the al Insar / al Qaeda camp before the war, but we did not have any forces in Iraq to confirm the allegation.

This is simply a lie. We knew all about that camp prior to the idiotic invasion. It was in the Kurdistan, and outside Iraq's control.
 

"it seems to me to be somewhat wishful thinking to equate terrorism to crime, and thus to advocate the use of standard crime-fighting procedure to combat terrorism."

The WTC bombing in 1993 was dealt with by means of "standard crime-fighting peocedure[s]". The perpetrators were identified, arrested, charged, prosecuted, convicted, and imprisoned.

Bushit, his one-note-song being juvenile militarist delusions, would have bombed and invaded New Jersey. Thus the central question concerning the 9/11 destruction of the WTC is, "Where is Osama?" -- a stinging condemnation, with no clear answer except: "Not arrested, charged, prosecuted, convicted, and imprisoned."

Madrid bombings? The perpetrators were dealt with in the same way as Clinton did the 1993 WTC perpetrators. Those perpetrators are imprisoned. Bushit would have bombed and invaded Spain's ally (cooperative in the international police action which worked) Italy.

The charge of "wishful thinking" is properly made about those who still endeavor to prop up fake military hero Bushit, rather than continue to ask: "Where's Osama?"

". . . while terrorism is like organized crime in many ways its motivation is primarily political, instead of financial or personal."

Irrelevant, as between the perpetrator and their motive is the issue of public safety, and murder, individual or mass.

". . . so when it is perpetrated by an organization of foreigners against the US polity, it is not simply the criminal act of an individual or the largely non-political act of a rent-seeking crime syndicate."

So let's validate their claims as being "political" -- and thus arguably legitimate -- by treating them as if they are political actors, when in fact they are mass murderers hiding behind politics and or "religion".

". . . it is more dangerous because less predictable and less tied to the particular circumstance of the organization or individual. this difference could arguably justify a different response than that taken to ordinary crime."

Because treated as common criminals, which accurately fits their actions, the 1993 WTC perpetrators are in prison. Same for the Madrid bombings. You'd prefer using means which result in the persistent question, "Where's Osama"?

# posted by Alec : 4:27 PM
 

Alec: ...recognition of [arguably legitimate grievances] should inform the eventual resolution, even if not explicitly, but probably not the conduct of the martial contest.

Stipulating that any exchange of blows can be deemed martial and that you are not allowing a "war" on terror by the back door (and I don't think that's what you intend) then I can only agree. Nor do I think, whether it be a victim of urban blight "driven" to crime or a victim of commercial imperialism "driven" to terrorism, that anyone should be given a free pass based on such grievances.

There are at least three separable issues. First, the extant designs of PNAC to roll back post cointelpro restrictions and pursue a generally imperialist strategy in the Middle East. Second, pursuit of the international criminals who perpetrated the acts of nine-one-one. Third, the longer history of foreign policy errors which deepened ancient hostilities rather than forging modern alliances (i.e., imposition of the state of Israel into the heart of what had been the Ottoman Empire.)

What, then, to do? Pursue the international criminals with every legal means available (and, duh, declaring "war" on "terror" is _not_ legal)(declaring war on Afghanistan might arguably have been legal, but it's not what we did, and I still contend it made things worse rather than better.) Kick out the traitorous slugs from the PNAC. Seek truly effective international relations to promote peace and cooperation, especially with our former enemies.

Okay, clearly I'm dreaming here. But better to strive toward the right goal and fall short than succeed at an evil one.

Peace.
 

"Fraud Guy said...

"If we treat this as a criminal issue, we do not have to worry about soldiers collecting evidence--we use our intelligence and law enforcement assets for a task they are suited for..."

"Bart" blurbs" --

"Are you actually suggesting that we send in the FBI and the CIA to al Qaeda occupied cities like Baquba to serve arrest and search warrants on al Qaeda terrorists where the enemy is fighting to the death and the entire city is wired up with IEDs? They would all be killed. Wars are fought by soldiers, not police."

Gee, Bart, I hesitate to strain your abilities with call to memory of actual facts, but I'll do it anyway, in view of the fact that you are incapable of intellectual honesty by means of internalized socialization:

The person who "shot up" CIA headquarters in Washington, DC was (1) a terrorist, and (2) was captured in Afghanistan by the FBI following international cooperation among allies across the globe. He was then extradicted to the US, charged, prsecuted, convicted, and imprisoned.

For you, and all your ilk who cannot conceive of using more than one tool -- military, military, military -- out of the several available:

Where's Osama?
 

I appreciate profTamanaha's having traveled to the international colloquia. Recently I was reviewing the EU parliament's document listing overflights for rendition which enumerates quite a few northern European countries as participating as fuel stops; the report expounds beyond mere transport into more serious problems with international transfer of prisoners, from an EU perspective.

In current times the reversal of the ABM treaty is adding to tensions in some of those same parts of Europe.

To me, foreign policy vision is an important potential tool for reducing tensions of a sort which tend to make underprivileged populaces in many lands frustrated, and softens some persons' resistance to the allure of civil disruptive tactics such as modern terrorists employ as a way to wreak retribution upon the advanced countries who seem airily lawless.

One key element of a foreign policy to increase effectiveness in reducing international first world tensions is arms reduction. Many of the nations who had representatives at the conferences which profTamanaha attended likely also are major suppliers of arms to less affluent countries. I wonder if there was any mention, in the terrorism abatement discussions, of the international tensions which arms trade causes among underprivileged and poor people, the very people who are the pawns in the rhetorical and real hostilities.
 

"With respect, have you either been on a battlefield or actually prosecuted a criminal case in court?"

Neither Clinton nor Bushit have been on a battlefield. Yet, somehow, that fact didn't interfere with Clinton's abilities to track, arrest, charge and prosecute and convict by criminal case in court, and imprison the 1993 WTC bombers (even though they claimed a religiopolitical motive.

Bushit? "Where's Osama?"

"I have done both."

We believe that as readily as we believe you are intellectually honest.

"I assure you that a battlefield is nothing like a serene and controlled crime scene on CSI and you cannot prove a criminal case beyond a reasonable doubt without substantial evidence and reliable witnesses."

See my prior about the FBI's arrest in Afghanistan of the terrorist who "shot up" CIA headquarters in Washington, DC, and the successful criminal prosecution, etc., of him.

"The current detention regime uses the relatively low standard of preponderance of evidence and allows in a variety of evidence the federal rules of evidence would exclude and they have still mistakenly released terrorists who have returned to the battlefield against our troops."

I've ssen no evidence for the latter assertion -- that they "returned to the battlefield". Why is such evidence essential to believing that claim? Because, for one, it's how our system of laws, and not of men, operates. And, because the assertion is made by proven serial liars such as Bushit and Cheney.

"Don't you think that increasing the burden of proof by a quantum might just release a great deal far more terrorists back onto the battlefield?"

Don't you think we should prove with sufficient evidence that they are "terrorists" before we prosecute them for being such? Who's the Reaganite -- Fein? -- who points out that the "military tribunal" nonsense is a duplication of that we have already in our established judicial system?

Most of the rest of us well know, "Bart," and most of the rest of us minus you and your fellow totalitarians readily acknowledge, that Bushit's "military tribunal" "system" is not about justice; it is about guaranteeing convictions of persons only labeled, not proven, to be "terrorists"; and by any means necessary to that anti-American end.

# posted by Bart DePalma : 5:34 PM
 

Last night on ABC News they showed a great example of using military power to fight terrorists. An imbed with a miltary unit taped a scene of US soldiers breaking into an old Iraqi woman's home looking for insurgents. The poor terrified woman sat in her kitchen in tears clutching her walker as the soldiers searched her home. The next day those same soldiers in that same neighborhood noticed a car driving around the block several times. Instead of having Iraqi police stop the car, they shot and killed the driver. He was simply a cab driver looking for a woman who had called for a ride.

MISSION ACCOMPLISHED!
 

"mark

"i would differentiate the anarchists in germany and the weathermen in the US by the fact that they were attempting to fight a revolution against their own societies, and not a foreign government. presumably, if they became powerful enough to present a credible revolutionary threat, they would have had to be treated as a military and not a criminal threat."

See "Whiskey Rebellion," the response to which included the use of "foreign" militia from states other than Pennsyvania.

But the perpetrators of that were termed and prosecuted as "common criminals" (Washington having expressly rejected the use of military tribunals).

"i would say that the threat threshold to be treated as a military threat is lower for foreign organized terror groups than for domestic ones."

There is no reasoned basis for that view. The 1993 WTC bobmers were an organized foreign group operating domestically. Still, Clinton didn't bomb and invade New Jersey; instead, they were tracked, etc., by use of standard criminal law procedures.

"and i am not saying we should not use criminal processes against terrorists necessarily. only that islamist terrorism doesnt clearly fall into either the category of war or of crime."

Who do we allow to define the terms? The "enemy"? Do we only do that when it is self-servingly propitious to do so, as does Bushit, et al.?

". . . terrorist activity in iraq is more like war in a traditional sense then that which is carried out against civilian targets in the US."

Except that there wasn't any "terrorist activity" (except perhaps that by our ally Saddam Hussein against destabilizers such as "terrorists," like anti-Saddam terrorists Chalabi and Zarqawi, and the pro-"Kurdistan" terrorists operating out of northern Iraq against Turkey and Iran) in Iraq.

". . . i would say nine eleven was more like war than was the oklahoma city bombing, an outwardly similar event that seems more like a crime."

The OK City bombing was declaredly political -- therefore, arguably by your terms -- an act of war (like Shays's and Whiskey Rebellions) -- but Clinton didn't bomb and invade Oklahoma; normal criminal law procedures were applied to the investigation (including FBI pursuing alleged leads which lead to places outside the US).

"your point on ww1 is excellent, except ww1 probably would have started some other way but for the assassination."

Except that it didn't start by some other way.

"that being said im not against a proportionate response to terrorism, especially because the self-inflicted damage attendant to a poor response, and the sheer cost of responding, are the main strategic effect of a terrorist attack."

Thus Clinton (as example) refused to give noteriety to the religiopolitical claims of such as the 1993 WTC bombers and Tim McVeigh by responding abnormally and disproportionately.

# posted by Alec : 6:11 PM
 

JNagarya said...

The person who "shot up" CIA headquarters in Washington, DC was (1) a terrorist, and (2) was captured in Afghanistan by the FBI following international cooperation among allies across the globe. He was then extradicted to the US, charged, prsecuted, convicted, and imprisoned.

And this single arrest (and the few others like it during the 90s) degraded what ability of al Qaeda and stopped what operation of al Qaeda?

Where's Osama?

Very likely dead and buried on a Pakistani hillside.

We have not heard anything from him for over a year and the recent tape was old footage.

If bin Laden is indeed dead, Zawahiri is the only one of the pre 9/11 al Qaeda command structure still alive or uncaptured. Our military, not the FBI, has decimated al Qaeda.
 

"Al Qaeda and its allies waged war against the United States and its citizens for nearly a decade before we finally waged war in return. In the interim, the United States treated this as a criminal justice matter and sent the FBI overseas to no effect. The result was more enemy attacks on the U.S. culminating in 9/11."

Where's Osama?

"al Qaeda and its allies are not going to come to the U.S. to turn themselves into the FBI for processing before being released on bail."

The 1993 WTC bombers didn't turn themselves in. Nonetheless, they were identified, arrested, etc., and imprisoned.

Where's Osama?

". . . . Consequently, the United States has to send its forces to the foreign countries where the enemy lives, including Iraq before the liberation."

Actually, it doesn't. And Sadadm Hussein was Western-installed stability in Iraq; his job was to exterminate destabilizers, such as terrorists. Thus, the only terrorists in Iraq while he was in power were Kurds -- sworn enemies of Saddam -- in the north carrying out terrorism against Turkey and Iran, which they continue to do to this day.

And Chalabi and Zarqawi, both intent on overthrowing Saddam.

"Baquba is simply where al Qaeda fled after being engaged and defeated in Afghanistan, then engaged and defeated at an Iraqi base near the Iranian border during Operation Viking Hammer, then engaged and largely defeated in Anbar Province over the past three years, until we ran them to ground in Diyala province where we engaged and defeated them in Baqubah. As discussed above, they have fled north to Mosul where the Army has just captured (not arrested) the foreign commander of al Qaeda in Iraq."

al Qaeda was not in Iraq at all until after the invasion. You know that, but won't admit it, because you're a bald-faced liar.

"Criminey, you actually thought I was suggesting that we send the police into the middle of combat?

"OK, now I see that you do not intend to even send in the police after al Qaeda where they live."

Where's Osama?

# posted by Bart DePalma : 6:27 PM
 

Treatment of terrorism as a domestic crime makes sense for Europe, as the threat to European populations is largely homegrown. The US should treat domestic terrorism as a criminal justice matter as well. International terrorism is a different ballgame, primarily b/c US police have no jurisdiction to make arrests of individuals located in other sovereign states without those states' permission. Where other states cooperate to bring international terrorists to justice, the criminal justice model may still be effective. Where states are not cooperative and permit terrorists to attack with impunity (if not encouragement), as in Afghanistan in 2001, the US is clearly entitled to consider military options, the conduct of which would be governed by the law of war.

# posted by Adam : 8:10 PM

Irrelevant distinction. The Whiskey Rebellion is a model that can be used regardless where the locus of the "terrirsts": the military captures them -- they are committing acts defined in law as crimes -- and turn them over to the civilian authorities for prosecution under criminal law.

It's is amazingly obvious that it is amazingly stupid to give notoriety to those who seek it. When a religionut murders an abortion provider, the claimed justifications for the crime are irrelevant: the murder is a crime, in itself requiring prosecution, etc.
 

I agree with this conceptually, as well as with EL's post. I would not, however, dignify the culprits by announcing any grand "WAR ON TERROR" or similar nonsense. We might use the military to take out a pirate's nest, but we don't elevate their status by treating them as an honorable foe.

# posted by Mark Field : 9:15 PM

And any pirates captured instead of killed -- they are not a legitimate military, so should not be given the courtesy of being viewed as such -- are turned over to the civilian authorities for criminal prosecution.

Bushit's ahisorical nonsense notwithstanding, this is not "a new kind of war". The colonists, up to and through the "revolution," and Shays's and Whiskey rebellions, knew how to deal with these matters. When necessary they sent in the military -- mostly to suppress and capture, after which they captured perpetrators were turned over to the civilian authorities for prosecution under criminal law.
 

War: 1 a (1) : a state of usually open and declared armed hostile conflict between states or nations (2) : a period of such armed conflict m-w.com

We are not at war with terror; conflating it with a war is giving it too much power...

Terrorism, from the PATRIOT ACT:
activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the U.S. or of any state, that (B) appear to be intended (i) to intimidate or coerce a civilian population, (ii) to influence the policy of a government by intimidation or coercion, or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping

I believe the terrorists have been successful in causing us to change our policies for the worse, limiting our freedoms in order to ostensibly protect them. As the PATRIOT ACT states above, it is a criminal act, covered under US code (see http://www.globalterrorism101.com/UTDefinition.html for several legal and classic definitions), and as jnagarya states above, we have successfully captured and prosecuted several terrorists using our law enforcement and intelligence assets, as well as international cooperation. This has included such diverse actors as those responsible for the bombing of the WTC, Timothy McVeigh, and many others.

The question is how to fight it.

Let's go back to WWI; after the political assassination of Archduke Ferdinand, Austria-Hungary arguably could have gained international cooperation to force Serbia to give up the instigators of the plot and their supporters, probably by first appealing to Russia, which was considered Serbia's protector in the international scene.

They instead pulled their ally Germany in first, who decided to try to turn the situation to their advantage to alter the balance of power in Europe in their favor. Escalation between powers ensued and, with the overplanned, mechanical mobilizations previously set up in the major powers, once they started their processes to call up troops, it almost became inevitable that war would start over a terrorist act (h/t Barbara Tuchman, John Keegan, and Laurence Lafore).

Overreaction, war for wounded pride and national advantage; millions dead, and the seeds for a later, larger, and more deadly conflict are sown.

Remember, those who do not remember history are doomed to repeat it.

The world and the US have been through overescalation, turning criminals and complicit governments into martyrs and rallying points, inflexible doctrine, overextension, poor planning, and failed policy before. Why do people want to revel in these past mistakes as opposed to find new ways to solve the problem?

To quote Sherman:

I confess, without shame, that I am sick and tired of fighting—its glory is all moonshine; even success the most brilliant is over dead and mangled bodies, with the anguish and lamentations of distant families, appealing to me for sons, husbands, and fathers ... it is only those who have never heard a shot, never heard the shriek and groans of the wounded and lacerated ... that cry aloud for more blood, more vengeance, more desolation.

Some who call for war have served, however. It may not be an exactly fair comparison, but I have heard the constant harping about failure and surrender before, and plans to regain lost glory with new war. It came from a corporal who felt that his country produced the finest soldiers, who could have won the war he served in, and who started a greater, more terrible war when he obtained the power to lead his country.
 

Anderson:

Enlightened Layperson, what do you think we should be doing about the NW Province in Pakistan, where evidently Musharraf's writ runneth not?

Alas, I don't have an answer to that. Pakistan has always been the thorniest problem in the real war on terror (as opposed to the distraction in Iraq). Clearly Musharraf is not going to do anything about the Taliban and Al-Qaeda forces along the border. The consequences or our invading Pakistan and the consequences of allowing Bin Laden to operate unimpeded are both supremely bad. I am open to anyone's suggestion on the subject, even Bart. Believe it or not, I was going to ask him just that.

Bart, you say Baquba is simply where Al-Qaeda has fled after being defeated in Afghanistan. Aside from the obvious fact that they have pickued up some recruits along the way, that is not the only place Al-Qaeda has fled. Much of the leadership is now in Pakistan, harrassing our troops in Afghanistan and reforming their organization. What do you propose to do about them.
 

Enlightened Layperson: Aside from the obvious fact that they have pickued up some recruits along the way, that is not the only place Al-Qaeda has fled.

I think even this begs the question a tad. While fully agreeing that insomuch as any one person is a, perhaps the, pivotal figure "leading" "The Terrorists" then bin Laden is that guy, doesn't there remain a colorable argument that "al Qaeda" is less the monolithic organization assumed by questions such as you've posed and more a combination of a) more widespread, heterogeneous opponents to U.S. hegemony and b) U.S. PR to sell imperialism at home under cover of "fighting our enemies"?

I recall reading a while back, quite apocryphally, that the term "al Qaeda" itself was elevated by the U.S. in order to use RICO laws against captured terrorists in the 90s. Sadly I can't find that link. Maybe someone (well, someone with some credibility) can point me to their preferred online resource regarding the history and organization of "al Qaeda"?

Also, is it remotely possible to "defeat al Qaeda" and never actually catch the perpetrators and organizers of nine-one-one? So are these two separate issues? Only one of which provides the frame needed for the PNAC opportunistic exploitation of this particular boogey man?
 

Enlightened Layperson said...

Bart, you say Baquba is simply where Al-Qaeda has fled after being defeated in Afghanistan. Aside from the obvious fact that they have pickued up some recruits along the way, that is not the only place Al-Qaeda has fled. Much of the leadership is now in Pakistan, harrassing our troops in Afghanistan and reforming their organization. What do you propose to do about them.

Good question.

To start, we need to know the players in the region. The local ethnic group in southern Afghanistan and northern Pakistan is Pushtun and this is the base for the Taliban. al Qaeda is allied with the Taliban, but is Arab and not Pushtun. The foreign Arab al Qaeda is not particularly well liked by the Pushtun and is allowed in the area because they pay very well.

Consequently, northern Pakistan is better seen as a purchased sanctuary for the Arab al Qaeda and not a base where they can obtain recruits, cash and supplies. All of these would have to cross Musharaff controlled southern Pakistan even to get there.

Allow me to play Devil's Advocate and look critically at this new NIE. The NIE claims that al Qaeda has rebuilt a substantial infrastructure and force in Pakistan. The question that is not addressed is whether this al Qaeda group has any operational capability. I am unaware of a single al Qaeda operation launched from Pakistan against anywhere else in the world. al Qaeda in Pakistan appears to have launched a few attacks against Musharaff's government, but these are nothing compared to the operational tempo of al Qaeda in Iraq.

The real problem posed by Pakistan is that the Pushtun Taliban use it as a recruiting ground and a sanctuary in their attacks against Afghanistan and the NATO troops there. This is a major problem because it allows the Taliban to rebuild and continue their war after we slaughter them by the thousands during each of their summer offensives.

I suspect, but have no proof, that this NIE focusing on al Qaeda in Pakistan may have been a pretext to argue for military operations in the area whose real target is the Taliban.

Assuming that al Qaeda in Pakistan has a significant operational capability, what can we do about it?

The most effective option would be Pakistan sending in their own troops and inviting in NATO to help them. However, Pakistan is a reluctant partner at best with a substantial portion of its population is passive or active support of the Islamic fascist movement. Musharaff has to weigh the benefits of our assistance with the very real possibility of a popular revolt including portions of the military and intelligence services.

We could intervene unilaterally. However, this would almost certainly start a revolt and Musharaff may have to oppose us to survive. Musharaff as an ally is more important than taking down this al Qaeda sanctuary because all of Pakistan may end up being a sanctuary without Musharaff on our side.

The nightmare scenario is that the Islamic fascists overthrow Musharaff and obtain control of Pakistan's nuclear arsenal. That would pose a significant threat to us and give al Qaeda and its allies a nuclear umbrella for their sanctuary.

Even if Pakistan sent in their troops and invited in NATO to help, I fear that popular support for this option would be lacking.

The anti war movement and the press has done a very effective job degrading popular support for further military operations by offering a one sided parade of horribles far more effective than the clumsy al Qaeda propaganda seeking the same end of US retreat. The hawks have contributed to this degradation through their own success in stopping attacks against the US and its interests since 9/11. Thus, the population only sees the costs of war and has largely forgotten the costs of not waging that war.

The Dems claim that they are not running away from the fight with al Qaeda by withdrawing from Iraq but are rather redeploying to fight al Qaeda elsewhere. However, this is a transparent lie since the Dem plans all call for the troops to be brought home (except for that loon Murtha, who wants to send them to Okinawa). There is no call to send them after al Qaeda in Pakistan. Thus, any military operation in Pakistan would have to proceed without half of the political class.

Consequently, the only realistic option I can see for the near term future is that we try to keep al Qaeda in Pakistan on the run and degraded through covert special ops which do not provide casualty photo ops for the press until we can rally public support again. Unfortunately, it will probably take another large scale attack on the US homeland to get the citizenry stirred up again.
 

Leaving aside Bart's enthusiasm for more dead Americans in another terror attack, the notion that Musharraf would be replaced by an Islamist regime is considered farfetched by the people who study Pakistan for a living. The army holds most of the cards over there, and they don't seem to be very interested in living under such a regime.

The best solution seems to me to be that we tell Musharraf we will be conducting "joint U.S.-Pakistani operations," which will be "joint" to the extent that he provides it -- at least an officer or two to observe ops & provide fig leaves. And that if Musharraf won't allow it, then we'll look forward to doing business with his successor.
 

The foreign Arab al Qaeda is not particularly well liked by the Pushtun and is allowed in the area because they pay very well.

...

However, Pakistan is a reluctant partner at best with a substantial portion of its population is passive or active support of the Islamic fascist movement. (aka Al Qaeda)


You have got to love Baghdad Bart's ability to directly contradict himself, while still pretending that anyone is actually listening to him.

If Al Qaeda is allowed in the area because they pay well, then the obvious solution is for the US to pay even better. Of course, that is a load of crap. Osama has become a very popular name for Pakistani bebies, and it's not because Al Qaeda is paying for naming rights.
 

BB:

Try to do some reading on the subject before you embarrass yourself any further.

Islamic fascism is not restricted to al Qaeda and all Pakistanis are not Pushtun.

The Islamic fascist movement is not ethnically based, it is a religious movement. Thus, it is possible and is in fact reality that the many Pushtun both support Islamic fascism and dislike foreigners including Arab al Qaeda.
 

Try to do some reading on the subject before you embarrass yourself any further.

You first.

Islamic fascism is not restricted to al Qaeda and all Pakistanis are not Pushtun.

The Islamic fascist movement is not ethnically based, it is a religious movement. Thus, it is possible and is in fact reality that the many Pushtun both support Islamic fascism and dislike foreigners including Arab al Qaeda.

# posted by Bart DePalma : 10:51 AM


Islamic fascism is a meaningless slogan used to demonize muslims. If you have evidence that Al Qaeda is not welcomed by the Pashtun, feel free to post it.

If you think the reason they are tolerated by the Pashtun is because they have money, then the obvious solution is for us to pay more.
 

Anderson said...

Leaving aside Bart's enthusiasm for more dead Americans in another terror attack, the notion that Musharraf would be replaced by an Islamist regime is considered farfetched by the people who study Pakistan for a living. The army holds most of the cards over there, and they don't seem to be very interested in living under such a regime.

Are you sure? The Pakistani military both supported (and may still support) the Taliban, allowed Islamic fascism to spread though the madrassa school system and very likely supports Islamic terrorism in Kashmir. Islam is a popular rallying point for the military in dealing with its neighbors, so do not make the mistake of thinking that Pakistan's military is secular.

However, the Islamic fascist movement in Pakistan may be making the same mistake al Qaeda made in Iraq by recently attacking its supporters and enablers in the military. The Pakistani military may now conclude that they rabid dogs they have been using against India and Afghanistan have outlived their usefulness.
 

"Bart" DePalma:

During these discussions with our EU colleagues, was any effort given to determining how soldiers are supposed to:

(1) Gather evidence including testimony from foreign battlefields.

Our soldiers are not trained police officers, a battlefield is not a controlled crime scene and, as we have discovered in Iraq prosecutions of our own troops, enemy civilians do not make reliable courtroom witnesses.


What's the problem? Do you really think that the only competent evidence comes from police officers (not to mention the arguable assumption that police officers always offer competent evidence)?

(2) Gain intelligence from captured terrorists.

Under our criminal justice system, the suspect has a right to silence. Are the participants in these discussions actually advocating extending a right to silence to al Qaeda like Khalid Sheik Muhammad?


The "right to silence" exists for anyone with personal autonomy. What you're speaking of is the "freedom from coerced testimony" (or, more bluntly, freedom from torture or other coercive methods). I think the answer is, yes, there should be limits on the types of coercion we can use (just as is true with our own police).

(3) Keep terrorists from returning to the battlefield.

The purpose of detaining prisoners of war for the duration of the conflict is to prevent them from returning to the fight. Are the participants in these discussions actually advocating releasing captured terrorists back onto the battlefield if our military cannot prove a criminal case beyond a reasonable doubt after extending a right to silence to the terrorist?


No. Who said they were? Nice tilt at the windmills of your mind, "Bart".

Cheers,
 

The anti war movement and the press has done a very effective job degrading popular support for further military operations by offering a one sided parade of horribles far more effective than the clumsy al Qaeda propaganda seeking the same end of US retreat.

- The old stab in the back meme! It's strong in parts of our cultural landscape. Very strong.


The hawks have contributed to this degradation through their own success in stopping attacks against the US and its interests since 9/11.

- Now, it's possible that a sharply led counterterrorism campaign has indeed kept us safe. But given;
The Katrina response, or lack thereof, Osama's freedom, the politization of the war effort, and the failure to truly screen incoming containers in ports, do you really think this is true?



Thus, the population only sees the costs of war and has largely forgotten the costs of not waging that war.

- The people haven't seen jack! Recall Bush's instruction; to go about our lives normally, to "keep shopping".

The Dems claim that they are not running away from the fight with al Qaeda by withdrawing from Iraq but are rather redeploying to fight al Qaeda elsewhere. However, this is a transparent lie since the Dem plans all call for the troops to be brought home (except for that loon Murtha, who wants to send them to Okinawa). There is no call to send them after al Qaeda in Pakistan. Thus, any military operation in Pakistan would have to proceed without half of the political class.

- The real fight has always been in Afghanistan. Iraq was a distraction. Keep your eyes on the prize. Don't divert your resources to attack a country that was never a real threat to us. Go after the person and organization that really did attack us.
 

The hawks have contributed to this degradation through their own success in stopping attacks against the US and its interests since 9/11.

It always cracks me up when warmongering imbeciles like Baghdad Bart try to pretend that the daily attacks in Iraq are not "attacks against the US and its interests".
 

"See Linda Robinson's book 'Masters of Chaos,' which...."

... is full of RW/PNAC tin-foil-hat-zone horsepatooties. I hear that in the last chapter, Dubya actually gets in a space fighter and delivers the nuke to the heart of the alien's space mothership....

Cheers,
 

"Bart" DePalma lives in an alternative world:

Our military, not the FBI, has decimated al Qaeda.

"Bart": Meet reality.

Cheers,
 

arne:

Thanks for replying to my original questions to Professor Tamanaha. No seems to want to deal with the issues raised by treating al Qaeda like civilian criminal suspects.

BD: During these discussions with our EU colleagues, was any effort given to determining how soldiers are supposed to:

(1) Gather evidence including testimony from foreign battlefields.

Our soldiers are not trained police officers, a battlefield is not a controlled crime scene and, as we have discovered in Iraq prosecutions of our own troops, enemy civilians do not make reliable courtroom witnesses.

arne: What's the problem? Do you really think that the only competent evidence comes from police officers (not to mention the arguable assumption that police officers always offer competent evidence)?


You really don't know the difference between soldiering and police work, do you?

Soldiers in combat are spend 20-24 hours of the day maneuvering, fighting, resupplying, receiving orders and eating in about that order. If they are lucky and the enemy cooperates, they get a couple hours of sleep in between everything else.

Soldiers have not been trained to and do not have time for looking for evidence, taking statements, preserving evidence, writing reports and chain of custody logs, not to mention providing testimony back in the US for depositions and trial of the thousands of enemy the military has captured. More importantly, you cannot do all that police work safely while you are trading fire with the enemy on a battlefield.

BD: (2) Gain intelligence from captured terrorists.

Under our criminal justice system, the suspect has a right to silence. Are the participants in these discussions actually advocating extending a right to silence to al Qaeda like Khalid Sheik Muhammad?

arne: The "right to silence" exists for anyone with personal autonomy. What you're speaking of is the "freedom from coerced testimony" (or, more bluntly, freedom from torture or other coercive methods). I think the answer is, yes, there should be limits on the types of coercion we can use (just as is true with our own police).


I agree with you that there are limits to the coercion that even a soldier can use while interrogating an enemy combatant. However, the discussion is whether to treat enemy combatants as civilian criminal suspects and thereby extend a right to silence to them.

Do you support extending a constitutional right to silence to captured al Qaeda? If not, then you at least partially disagree with treating al Qaeda as criminal suspects.

BD: (3) Keep terrorists from returning to the battlefield.

The purpose of detaining prisoners of war for the duration of the conflict is to prevent them from returning to the fight. Are the participants in these discussions actually advocating releasing captured terrorists back onto the battlefield if our military cannot prove a criminal case beyond a reasonable doubt after extending a right to silence to the terrorist?

arne: No. Who said they were?


The consensus at these discussions was described as follows:

Second, most people reject the notion that the fight against terrorism is properly characterized as a “war” (notwithstanding the above named conference). Rather, it is a significant threat to public safety, one which promises to be with us for some time.

Third, following from the second, there is a broad consensus that the response to terrorism should be conducted within standard legal mechanisms, much like any other kind of criminal proceeding...


You can only detain a person for the duration of a war if you consider yourself at war and the detainee as a prisoner of war. These attorneys do not consider our conflict with al Qaeda to be a war.

If you treat the al Qaeda as civilian criminal suspects with constitutional rights, then you may only detain them pursuant to criminal justice proceedings and not as prisoners of war.
 

Bart lies, again:

You can only detain a person for the duration of a war if you consider yourself at war and the detainee as a prisoner of war. These attorneys do not consider our conflict with al Qaeda to be a war.

If you treat the al Qaeda as civilian criminal suspects with constitutional rights, then you may only detain them pursuant to criminal justice proceedings and not as prisoners of war.


No, according to the Geneva Conventions (at least the parts which we are signatory to), individuals who violate those conventions (whether or not they are from signatory countries) can be prosecuted by capturing powers under either their civilian or military justice systems.

We also have several laws (including the PATRIOT ACT, if you forgot about it), that define and criminalize "terrorism" and allow for our capture and prosecution for those who commit it.

Come on, our legal experts at the DOJ took years to twist bans against wireless wiretapping into approval for wireless wiretapping; you think they could have knocked together a case under any of the above codes in at least a couple of weeks. However, if you want to lock these people up in a hole, forever, those legal niceties are just too cumbersome. I mean, at least in the past in the US, we executed terrorists (I mean anarchists, I mean suspected anarchists, I mean people we wanted to lay blame for the Haymarket riots on, among others).

BTW, I already refuted the rest of your response to Arne above. I guess you couldn't resist toting out the same ineffectual arguments a second time. I know you're scared, living under an administration that has allowed the most terrorist deaths within the US, but its only for about a year and a half more. For them to fail us at this point would be unforgivable even if you expect it to happen.
 

Bart,

The reason your questions about soldiers gathering evidence, etc. are going unanswered is that they look very much like a straw man argument. No one is suggesting treating the battlefield as a crime scene. What we are suggesting is that the international nature of Al-Qaeda means that large amounts of evidence exist outside the immediate combat zone and the law enforcement approach is realistic everywhere but the actual battlefield. You have regularly resisted the law enforcement approach even where it is perfectly feasible.

Don't go all Charles on us.
 

And while I'm at it Bart, I see what looks like an implied contradiction in your comments on Pakistan.

We could intervene unilaterally. However, this would almost certainly start a revolt and Musharaff may have to oppose us to survive. Musharaff as an ally is more important than taking down this al Qaeda sanctuary because all of Pakistan may end up being a sanctuary without Musharaff on our side.

This would seem to suggest that we have strong strategic reasons not to send troops into Pakistan, and that you would oppose such an action.

There is no call to send them after al Qaeda in Pakistan. Thus, any military operation in Pakistan would have to proceed without half of the political class.

Consequently, the only realistic option I can see for the near term future is that we try to keep al Qaeda in Pakistan on the run and degraded through covert special ops which do not provide casualty photo ops for the press until we can rally public support again. Unfortunately, it will probably take another large scale attack on the US homeland to get the citizenry stirred up again.


This would seem to imply that you do think we should send forces into Pakistan, and that only those spineless Dems and MSM are poisoning the public against it.
 

As already noted, I don't buy the "it's Musharraf or the jihadists" argument, whose principal exponent would seem to be Musharraf.

My own proposal to send in troops to the NW Province may seem high-handed or imperialist, but it boils down to this: either Pakistan exercises sovereignty over that region, or it does not. If it does, then it's responsible for securing the area. It hasn't, and won't or can't.

For practical purposes, Pakistan is *not* sovereign over much of that area, and thus can't be allowed to enjoy the privileges thereof.
 

Anderson: For practical purposes, Pakistan is *not* sovereign over much of that area...

Seems to open quite a can of worms regarding notions of sovereignty. You seem to equate it with military control and naught else, but that can't be right, can it? Maybe someone ought to organize some kind of international community of good will to help resolve the kind of ambiguity you address. Maybe NATO? Another "Coalition of the Willing"? Hmm...feels like I'm missing something obvious here... Oh, yeah, that's right, we formally told that community to piss up a rope because they were about to burst our war fever builup with some cock-and-bull story about "No WMDs". Sheesh. And the good thing is, it worked, that international community has been backburnered like never before. Because the New Rome has no use for any such community, save under our thumb...or heel.
 

Fraud Guy said...

Bart lies, again: You can only detain a person for the duration of a war if you consider yourself at war and the detainee as a prisoner of war. These attorneys do not consider our conflict with al Qaeda to be a war.

If you treat al Qaeda as civilian criminal suspects with constitutional rights, then you may only detain them pursuant to criminal justice proceedings and not as prisoners of war.

FG: No, according to the Geneva Conventions (at least the parts which we are signatory to), individuals who violate those conventions (whether or not they are from signatory countries) can be prosecuted by capturing powers under either their civilian or military justice systems.


To start, the GC apply to wars and these attorneys do not believe we are at war.

Next, detention as a POW for the duration of a war is a protective detention separate and distinct from criminal prosecution and imprisonment. A POW can be both held as a POW and prosecuted as a war criminal, however a civilian criminal defendant may not be held as a POW.

We also have several laws (including the PATRIOT ACT, if you forgot about it), that define and criminalize "terrorism" and allow for our capture and prosecution for those who commit it.

Treating captured enemy combatants as POWs does not preclude additionally trying them as criminals. However, a person we are treating as a civilian may not be held as a POW. That latter point is the one I am making and the one you seem to be missing completely.

If you treat al Qeada as civilian criminal defendants, you may not also hold them for the duration of our conflict with al Qeada. I asked Professor Tamanaha whether his EU colleagues had considered and were actually proposing this result

BTW, I already refuted the rest of your response to Arne above.

:::chuckle:::

You have just shown that you do not understand the issues being discussed nevertheless demonstrating that you have rebutted my points.

Calling others "liars" and then demonstrating your own ignorance for the world to see is no way to go through life. Then again, I notice the anonymity of the internet promotes this kind of behavior in far too many people.
 

Calling others "liars" and then demonstrating your own ignorance for the world to see is no way to go through life. Then again, I notice the anonymity of the internet promotes this kind of behavior in far too many people.

# posted by Bart DePalma : 3:03 PM


Baghdad, you have repeatedly been shown to be a lying piece of shit.

And there appears to be no one on this planet with less of a clue about his own ignorance than you. My personal favorite is your claim that our troops are safer in Iraq than they would be here in the US, but there are many, many, many examples of your ignorance to choose from.
 

Enlightened Layperson said...

Bart, The reason your questions about soldiers gathering evidence, etc. are going unanswered is that they look very much like a straw man argument. No one is suggesting treating the battlefield as a crime scene.

I would suggest that you reread Professor Tamanaha's post, especially the parts I quoted in my reply to arne. A consensus of these EU lawyers do not believe we are at war. If we are not at war, then there can be no battlefields, only crime scenes.

What we are suggesting is that the international nature of Al-Qaeda means that large amounts of evidence exist outside the immediate combat zone and the law enforcement approach is realistic everywhere but the actual battlefield. You have regularly resisted the law enforcement approach even where it is perfectly feasible.

You appear to be suggesting a bifurcated middle ground approach where we treat al Qaeda captured on the battlefield as enemy combatants but all others as civilian criminal defendants. Fair enough. We have disagreed as to the desirability of this approach in the past, so I will not repeat those debates here. However, this does not appear to be the approach advocated by Professor Tamanah and his EU colleagues. Nor would your conditional criminal justice approach appear to apply to the tens of thousands of al Qaeda and Taliban captured overseas. Rather, only to the handful arrested in the US.

EL: And while I'm at it Bart, I see what looks like an implied contradiction in your comments on Pakistan.

BD: We could intervene unilaterally. However, this would almost certainly start a revolt and Musharaff may have to oppose us to survive. Musharaff as an ally is more important than taking down this al Qaeda sanctuary because all of Pakistan may end up being a sanctuary without Musharaff on our side.

EL: This would seem to suggest that we have strong strategic reasons not to send troops into Pakistan, and that you would oppose such an action.


I would support a NATO if possible and at least a US intervention so long as we were invited in by Pakistan. Otherwise, I think the nuclear armed Pakistanis would oppose our unilateral entry and the al Qaeda sanctuary would spread from just this isolated area of Pakistan to the entire country.

BD: There is no call to send them after al Qaeda in Pakistan. Thus, any military operation in Pakistan would have to proceed without half of the political class.

Consequently, the only realistic option I can see for the near term future is that we try to keep al Qaeda in Pakistan on the run and degraded through covert special ops which do not provide casualty photo ops for the press until we can rally public support again. Unfortunately, it will probably take another large scale attack on the US homeland to get the citizenry stirred up again.

EL: This would seem to imply that you do think we should send forces into Pakistan, and that only those spineless Dems and MSM are poisoning the public against it.


I would intervene if we fight al Qaeda with the Pakistanis. The Dems will not use the military for a ground war against any al Qaeda anywhere. Their plans all call for coming home and hoping the enemy does not follow us here.

If you are a Dem or vote for Dems and would militarily intervene in Pakistan to take down that sanctuary, I suggest that you are in the wrong party and may be what they used to call a Reagan Democrat.
 

Seems to open quite a can of worms regarding notions of sovereignty. You seem to equate it with military control and naught else, but that can't be right, can it?

Military control is not sufficient, but is necessary. I'm sure you're familiar with the definition of a state as the holder of a monopoly on the legitimate exercise of violence.

As for working through the UN, I don't have a lot of faith in them on such a sensitive issue. But I think the "New Rome" bit is misplaced.

We would be quite happy if Pakistan managed its own citizens on the fairly elementary level of preventing them from conducting a war in Afghanistan, or actively supporting al-Qaeda. If Pakistan chooses not to do so, but growls at anyone else who ventures near its manger, then I don't see how America's the one at fault.
 

Bart: Then again, I notice the anonymity of the internet promotes this kind of behavior in far too many people.

::guffaw::

Like your lies about having addressed my challenge to produce text from the MCA or your libelous attempts to label your detractors as "stalkers" or your blatant self-contradictions offered as you find yourself cornered, to name three?

Sudden flash of insight: The reason vandals such as yourself come to venues like this is exactly because you will always be "outside," and therefor never feel beholden to the good will of the community. Were you man enough to engage as an actual member of a community you would be at the mercy of it's sanctions. But here the more you are reviled the bigger your hard-on, just so long as you stay below the radar of your hosts. In such a setting you suffer no inhibitions from a desire for the good will or esteem of the community. By grappling with people you have pre-judged and demonized you are free to lie and cheat and stonewall and generally free your inner boor...because the only people who will complain are precisely the people you've already deemed as not deserving your legitimate interaction. That shouldn't have taken so long to figure out. You couldn't be such an unmitigated ass in any community of which you were actually a member, as social sanctions would eventually catch up with you. But as the outsider troll you are fairly impervious to such.

After all, it's not like anyone here could really think much less of you than we already do.
 

Anderson: I'm sure you're familiar with the definition of a state as the holder of a monopoly on the legitimate exercise of violence.

Sure, it's right up there with "Property Equals Theft." Are you saying you think such a definition suffices to cover the matter and end conversation? I sincerely hope not.

I don't see how America's the one at fault.

If "America" defined sovereignty as "managing a state's affairs such that we approve and granting us permission to intervene militarily as we deem fit," then yes, I think "America" would be at fault. That seems to be the view you proffer, the view of pre-emptive war which some of us still find anathema to "America's" morals and ideals, despite the depravities of the ruling PNAC junta.
 

it seems crazy to treat every foreigner picked up in military dragnets for being an al quaeda/insurgent/terrorist in the same way we treat us civilian criminal suspects. al quaeda will likely be around for a very long time. we will probably be fighting some form of them somewhere in the world for a long time, at various levels of ferocity.

the ones that are picked up abroad should be treated as military detainees, and held until we decide they are no longer a threat.

the ones that are picked up here for acts planned to be executed or executed here should be subject to the jurisdiction of domestic courts, with some additional safeguards for secrecy and intelligence gathering.

al quaeda is not just terrorists, it seems also to comprise insurgents and political operatives. because insurgents do not wear uniforms or otherwise helpfully identify their allegiance to an organization, there will be a margin of error with respect to those the us armed forces believe are participating in or abetting an insurgency against them and those that actually are. it would be very expensive and time consuming to provide a process for these people to challenge our belief that they are "enemy combatants." it would also be difficult to marshal proof in these cases. releasing them would seem foolish and counterproductive. deciding how many to detain is more a matter of military policy, weighing the anger of the local population we are trying to sway to our side at the wrongful incarcerations against the perceived threat from the individual detained.

perhaps there should be some process to challenge this decision, but it should not be subject to all the procedural safeguards available domoestically. it is also a good argument for the humane treatment of and decent facilities for these supposed enemy combatants that we detain abroad.
 

Bart:

"If we are not at war, then there can be no battlefields, only crime scenes."

C'mon, that is just stupid. Does that make all of Korea a crime scene since that was a "police action"? What about Vietnam?

And since war has a specific legal meaning and that there has been no official declaration of war against terrorism, then, by your logic, we are dealing with a global crime scene...

Again, that was just a stupid, stupid statement.
 

The Dems will not use the military for a ground war against any al Qaeda anywhere. Their plans all call for coming home and hoping the enemy does not follow us here.

What a blatant lie by one of the most blatant partisan shills around. Bart is a true dead-ender.
 

Alec: it seems crazy to treat every foreigner picked up in military dragnets for being an al quaeda/insurgent/terrorist in the same way we treat us civilian criminal suspects.

Straw man, and a bit of a departure from your previous, measured tones. No one suggested what you claim above, so lets just move on.

al quaeda is not just terrorists...

I've already asked for a good resource discussing just what al Qaeda actually is, while suggesting there is a colorable argument that it is an amalgam of PNAC needs for a boogey man, a bit of nomenclatural sleight-of-hand to aid legitimate US attempts to bring specific terrorists to justice, and a convenient label for the aims of bin Laden. Do you have a link covering this material? Meanwhile, you've offered several conclusions, but you haven't really made any arguments, except, of course the "respecting rights is so expensive" argument which, I'm sure you'll agree, hasn't any real moral force when set cheek-by-jowl with notions like "innocent until proven guilty." Or do such quaint notions of due process and human value only apply to us good, God-fearing, White Christians?
 

Cue up Baghdad Bart's patented demand for you to "name a country you would invade to fight Al Qaeda..."
 

To start, the GC apply to wars and these attorneys do not believe we are at war.

A clarification is required here. Brian stated that his discussions involved the "legal response to terrorism"; that is, they discussed approaches to terrorism in general, not limited to (but certainly including) the current fight against al-Qaida in Iraq.

In a holistic sense, the lawyers objected to the "notion that the fight against terrorism is properly characterized as a 'war'...rather, it is a significant threat to public safety."

There is nothing to suggest that the lawyers do not agree that a war is being fought in Iraq or Afghanistan, just that the overall attempt to secure public safety shouldn't be pigeonholed in the war framework.

The third and fifth points that Brian mentions dovetail together to suggest that the Geneva Conventions should most certainly apply in conditions of armed conflict. If terrorists are engaged in situations where conditions of armed conflict are difficult to demonstrate, then they should be captured and prosecuted in ways conforming to civilian criminal procedures.

What's so very difficult to understand about that?
 

"innocent until proven guilty." Or do such quaint notions of due process and human value only apply to us good, God-fearing, White Christians?

what is innocent until proven guilty. .. is it a natural law that all institutions wielding power to jail and condemn should follow, or is it a restriction placed by the community which itself comprises those institutions on how those institutions then deal with the members of said community? I would contend it is the latter. i see it as a luxury and a privilege to be dealt with that way by coercive power and not, until well-secured politically, a right. therefor i would say it is up to us whether to treat those outside our community suspected of attempting violent acts against its agents as if they were innocent until proven guilty, or to treat them in the most humane way we think we can, given our aims and resources.

this is kind of the opposite of a moral argument
 

PMS_Chicago: What's so very difficult to understand about that?

Depends. If your world view is sufficiently skewed then one might have to filter out some of the distinctions you embrace in order to stave off adjustment to reality. Say, for instance, you pride yourself on black-and-white thinking in a full Technicolor(tm) world, imagine how scary must be the reports of folks who can actually see. It would probably be enough to drive you to spend time trying to waste the energies of your ideological enemies, since you wouldn't actually be welcome anywhere as a legitimate community member. Tussling with one's enemies makes it easier to discount any data that might cause reality adjustment if presented by someone one respected.
 

alec: i see [innocent until proved guilty] as a luxury and a privilege to be dealt with that way by coercive power and not, until well-secured politically, a right...

Hmm. Interesting. Thanks for being clear. I consider it a right for all people all the time, whether or not they subscribe to my region or tribe's curious customs and whether or not the prevailing coercive power deems to accord me that right. More, I consider due process my duty when I am the coercive power. We must come from very different moral traditions. How do you feel about, "What is hateful to thee, do not do to another"? Do you find "turn the other cheek", "eye for an eye", "a hand for a loaf of bread" to be the more moral stance?
 

alec,

you said:

al quaeda is not just terrorists, it seems also to comprise insurgents and political operatives. because insurgents do not wear uniforms or otherwise helpfully identify their allegiance to an organization, there will be a margin of error with respect to those the us armed forces believe are participating in or abetting an insurgency against them and those that actually are. it would be very expensive and time consuming to provide a process for these people to challenge our belief that they are "enemy combatants." it would also be difficult to marshal proof in these cases. releasing them would seem foolish and counterproductive. deciding how many to detain is more a matter of military policy, weighing the anger of the local population we are trying to sway to our side at the wrongful incarcerations against the perceived threat from the individual detained.

These are Bart's talking points, which have been refuted here at length, breadth, and ad nauseum. At the very least, the PATRIOT ACT covers terrorists, and it is a law with civil penalties. Despite Bart trying to argue that we don't have to treat the insurgents/al-Qaeda/enemy combatants under the Geneva Conventions (if it is a war) or our own laws (if it is not), we have many legal and non-controversial means at our disposal as a country to legally act against terrorist criminals and incarcerate them. If you consider us to be a nation bound by laws, we should obey them, especially when we are talking about the non-existential threat of terrorists. Innocent until proven guilty is the basis of our system of justice, and the danger of carving out exceptions for those we fear is larger for our country than the terrorists themselves.

Remember, the goal of terrorists is to cause change in the politics and policies of those they strike by striking fear into them. Based on the Bush administration handling of 9/11, they succeeded in spades, and we are still dancing to their tune until we stop eroding our own values to match theirs.
 

My own proposal to send in troops to the NW Province may seem high-handed or imperialist, but it boils down to this: either Pakistan exercises sovereignty over that region, or it does not. If it does, then it's responsible for securing the area. It hasn't, and won't or can't.

For practical purposes, Pakistan is *not* sovereign over much of that area, and thus can't be allowed to enjoy the privileges thereof.


I agree with you that Pakistan has an obligation to enforce rules and regulations within their borders if they expect others to respect those borders. Furthermore, turning a blind eye to terrorist organizations within one's borders is the same as sheltering, in my book, and our view of such behavior has been very well and loudly announced.

I have no love for al-Qaeda, and I, embarrassingly enough, agree with Bart that their actions constitute attacks (even "war") on the United States and its interests (although I also agree with 'Buster that they happen every day in Iraq). They need to be hunted down and brought to justice, and it's Pakistan's obligation as an ally to help us in that respect.

If they fail to do so, and a resurgent al-Qaida backed Taliban sets up permanent home in rural Pakistan, I can't see how we could avoid taking military action--our other options having been exhausted.

However, the monolithic nature of al-Qaida is at least partly the construct of American intelligence efforts and the opportunism of both the actual al-Qaida and the groups that hope to use the "scare factor" of the umbrella organization to gain notoriety and respect. So, we'd have to be quite certain that what we were seeing in Pakistan was the real deal, which is not that much of a stretch given the porous nature of the border and the arrests of prominent al-Qaida/Taliban leaders in Pakistan. Our intel of this area no doubt exceeds in both quantity and quality the intel with which we went to war in Iraq.

In short, I agree with Anderson that Pakistan bears the responsibility to eradicate the terrorist organizations within its own border, and if they won't eradicate them, then someone needs to intervene. The third option, let sleeping dogs lie, is simply a non-starter with this particular group.

I think Robert mischaracterizes this hypothetical action when he calls it "preemptive war"; this particular enemy actually fired first and did demonstrable damage to us. I would hope that Pakistan and the international community would handle it long before we became involved; it would be a political feather in our cap if we could effect their removal without putting any of our own troops into another Islamic country.
 

Mike said...

Bart: "If we are not at war, then there can be no battlefields, only crime scenes."

C'mon, that is just stupid. Does that make all of Korea a crime scene since that was a "police action"? What about Vietnam?


The term "police action" was a euphemism used by politicians in a vain efforts to convince the citizenry that the Korean and Vietnam Wars were something short of war. This euphemism has no legal meaning and we applied the laws of war to both Vietnam and Korea.

And since war has a specific legal meaning and that there has been no official declaration of war against terrorism, then, by your logic, we are dealing with a global crime scene...

Not quite. As I have argued before, the AUMF is an effective declaration of war. In any case, you do not need to have a declaration of war to be in a de facto war where the laws of war apply. See the Indian Wars, the various interventions around Latin America, the Philippines Moro War, Korea and Vietnam.

Again, that was just a stupid, stupid statement.

Sticks and stones, boys and girls. Try to keep it professional.
 

Steve said...

BD: The Dems will not use the military for a ground war against any al Qaeda anywhere. Their plans all call for coming home and hoping the enemy does not follow us here.

What a blatant lie by one of the most blatant partisan shills around. Bart is a true dead-ender.


Really?

Name one Dem leader (apart from Joe Lieberman who effectively caucuses with the GOP) who is calling for the military to be sent into a ground war against al Qaeda in any other country such as Pakistan. The occasional calls for reinforcements to Afghanistan do not count because al Qaeda is not there, the proposed bills call for the troops to go home and we are already at war in Afghanistan so this would not be a new engagement.

I have posted this challenge to Dem posters on several blogs and will do so again here. Name any country into which you would deploy the military to fight a ground war against al Qaeda. (al Qaeda has to be in that country, so Afghanistan is not an option). Just one.
 

(al Qaeda has to be in that country, so Afghanistan is not an option).

# posted by Bart DePalma : 4:38 PM


I'd love to know where this particular delusion came from?
 

Thanx, PMS. I of course harbor grave doubts about our President's ability to do anything well, including military intervention in the NW Province.

Question for Robert: what about our invasion of Afghanistan? Was that sufficiently justified, in your opinion?
 

Bartbuster said...

Cue up Baghdad Bart's patented demand for you to "name a country you would invade to fight Al Qaeda..."

That little test was effective in smoking you out on the other blog on which we posted. You could not name any country, proving my point.
 

That little test was effective in smoking you out on the other blog on which we posted. You could not name any country, proving my point.

# posted by Bart DePalma : 4:45 PM


Dude, it's been obvious for a few years now that the only thing you're smoking is crack.

No Al Qaeda in Afghanistan? Right. You are a lunatic.
 

Bart:

You can argue all you want that the AUMF was an "effective" declaration of war. It's meaningless. War, and the declaration thereof, have specific legal meanings. There was no declaration for Korea, Vietnam, or the war on terror. Therefore, by your stupid statement, it's a crime scene. Either own up to your statement and deal with its consequences, or accept the fact that there is more than a little nuance involved...
 

Bartbuster said...

No Al Qaeda in Afghanistan? Right. You are a lunatic.

We are fighting the Taliban in Afghanistan. If there are Arab al Qaeda around, they are hiding in a cave which we have not located. You will notice that our air attacks against al Qaeda in that region have occurred in Pakistan.
 

We are fighting the Taliban in Afghanistan. If there are Arab al Qaeda around, they are hiding in a cave which we have not located. You will notice that our air attacks against al Qaeda in that region have occurred in Pakistan.

# posted by Bart DePalma : 4:59 PM


You got some credible cites to back up this lunacy?
 

Bart:

Not quite. As I have argued before, the AUMF is an effective declaration of war.

Then if it is a war, why do you argue against the Geneva Conventions, and state that I was wrong to apply them?

....

I'll give you your standard, expected answers:

1.It's too hard to follow GC in battle (though that's when they are supposed to apply)

2.Terrorists are different (though that's when we can treat them as war criminals under GC and use either our criminal or military justice codes to prosecute them)

3.You want to send the police and FBI onto the battlefield (though that was never suggested and is a strawman)

4.None of the above, but because we can do what we want(which is still wrong, but at least an honest statement of Bart's undelying justifications)

or, the path he will never take, despite his being proven wrong numerous times:

5.none of the above, because we are a country of laws, and we should uphold them and our Consitution, and obey the Geneva Conventions, which have the force of law for us.

....

Your fans await your answer with bated breath.
 

Mike said...

Bart, You can argue all you want that the AUMF was an "effective" declaration of war. It's meaningless. War, and the declaration thereof, have specific legal meanings.

OK, I'll bite.

What is your definition of a declaration of war and how does it differ from the AUMF?

Please do not hang your hat on the fact that the AUMF did not use the magic words "declaration of war" because that is not required by the Constitution.

There was no declaration for Korea, Vietnam, or the war on terror. Therefore, by your stupid statement, it's a crime scene. Either own up to your statement and deal with its consequences, or accept the fact that there is more than a little nuance involved...

I simply stated:

I would suggest that you reread Professor Tamanaha's post, especially the parts I quoted in my reply to arne. A consensus of these EU lawyers do not believe we are at war. If we are not at war, then there can be no battlefields, only crime scenes.

Do you deny the logic of my conclusion?

I do not recall saying anything about what constitutes a de facto war or a de jure war with a declaration.
 

Bartbuster said...

BD: We are fighting the Taliban in Afghanistan. If there are Arab al Qaeda around, they are hiding in a cave which we have not located. You will notice that our air attacks against al Qaeda in that region have occurred in Pakistan.

# posted by Bart DePalma : 4:59 PM

You got some credible cites to back up this lunacy?


It is not up to me to prove a negative (ie the nonexistence of al Qaeda in Afghanistan).

If you think that we are currently fighting al Qaeda in Afghanistan, then provide us with your evidence.
 

I absolutely deny the logic of your conclusion. The idea that there are no battlefields in the absence of a "war" is absurd.

Again, under that logic, there were no battlefields in Korea or Vietnam, as those were not wars in the legal sense. Nor is there war against Non al-Qaeda terrorist groups. The AUMF only authorized force against those that planned or were associated with 9/11. Therefore, there was no declaration of war against, say, Hamas, Hezbollah, or the more generic "terrorism". Nevertheless, it is patently obvious that there were/are battlefields in Korea, Vietnam, Afghanistan, and Iraq.

The fact that you raise this question is clear indication that you have missed my point entirely.

You seem to argue that either its a military exercise or its a criminal exercise and, apparently, they are mutually exclusive.

That is a ridiculous presumption. Both have roles. When a terrorist organization gains sufficient power so as to control a gov't--i.e. Afghanistan--a military solution is a viable option. And in that situation, there would most assuredly be "battlefields", irrespective of whether there was an official declaration of war.

When there is an isolated cell, criminal processes are entirely appropriate and investigating where they called home would assuredly be a crime scene.

But to say that because we are not at "war", means there are not battlefields, only crime scenes, is assinine.

As to your other question, I'd think an official declaration of war would require some reference to Art. I, sec. 8...
 

Poking around for such things, I found a nifty article relevant to the current discussion, wherein the Department of Defense announces the arrival of law enforcement embeds in Afghanistan:

As the war on terror progresses, the U.S. military constantly looks for ways to increase its capabilities in the fight against terrorists.

That typically involves looking at all assets available within the military, but sometimes it’s the aid of people outside the rank and file of the Armed Services that bring about a change.

Law enforcement personnel, from both inside and outside the military, have recently been incorporated into military formations, such as the 4th Brigade Combat Team, 82nd Airborne Division, the command element of Task Force Fury, while serving in southeastern Afghanistan.

Having worked with other government agencies dealing with organized crime, these individuals bring with them years of experience tracking criminal enterprises.

“This is a brand new program,” said Peter M. Sakaris, a civilian contractor working with Task Force Fury. “It is really the new way to approach the war on terror.”

 

PMS_Chicago:

The new way? I guess everything old is new again.

Great source.
 

"Bart" DePalma:

It is not up to me to prove a negative (ie the nonexistence of al Qaeda in Afghanistan).

It is if you've asserted that negative as being true:

["Bart"]: Baquba is simply where al Qaeda fled after being engaged and defeated in Afghanistan...

["Bart"]: We found the ID and travel documents of the al Qaeda fleeing from Afghanistan into Iraq.

["Bart"]: If bin Laden is indeed dead, Zawahiri is the only one of the pre 9/11 al Qaeda command structure still alive or uncaptured. Our military, not the FBI, has decimated al Qaeda.

Cheers,
 

At this point its becoming more than clear that military action isn't much good against a multinational enemy who can cause us to continue to expend ever expansive resources while only needing marginal resource increases themselves. They also succeed in multiplying their numbers using our own actions as leverage.

Clear-hold-build is clearing, but not much else. Argue in favor of military action as one might, but in both theatres where it is being exercised, progress is both fleeting and sparce. Its not that instances of progress don't exist, but in the broader sense, its just not working and its clear that in the long run it won't by itself come to a successfull conclusion.

I am intentionaly separating the issue of military action from the failed administrative leadership here, since it doesn't seem productive to beat a dead horse. Would it (military action) really have gone better had the right decisions been made from the start instead of the ineptitude we saw? Perhaps in the smaller sense, but how many nations can the US invade and occupy?

At one point treating terrorists as criminals seemed to work in a limited way, but clearly not on a multinational scale, since al qaeda was able to grow during the 90's in spite of that approach. At this point its hard to argue that soldiers start acting just like the police, since now they've been thrust into the thick of it.

It seems that either an entirely new approach is needed, or some kind of hybrid of the two approaches. Since at this point, neither by itself shows much promise.
 

It seems that either an entirely new approach is needed, or some kind of hybrid of the two approaches. Since at this point, neither by itself shows much promise.

How about "both"?
 

"Bart" DePalma:

If you treat al Qeada as civilian criminal defendants, you may not also hold them for the duration of our conflict with al Qeada.

Horse patooties. The GC provides for trials of actual enemy combatants for various crimes. It doesn't require repatriation of convicted criminals after their sentence is served. It doesn't insist that those subject to trial in civil courts and those subject to detention as POWs are a disjoint set.

That's just a "straw man" of your own manufacture, "Bart", that you then use to insist that criminal trials are not possible for certain people because of the alleged danger or harm from doing the 'right thing'....

Cheers,
 

PMS_Chicago: I think Robert mischaracterizes this hypothetical action when he calls it "preemptive war"...

Yo, hold up there. That was PNAC's reason for going into Iraq, recall? Arguably the presence of terrorists in Pakistan is better authenticated than the presence of WMD's in Iraq (ahem) nonetheless it would be an act of war for us to unilaterally abrogate Pakistan's sovereignty because we didn't approve of their handling of internal matters. There is, or at least was, an international community to which we are (were?) pledged, and part of that pledge was to forego such unilateral acts.

Bottom line, we would be wrong to invade Pakistan over their handling, or failure to handle, terrorists therein. Does that mean sitting on our hands and waiting for the next attack? Is the world truly so bifurcated? You know better.
 

Anderson said...

How about "both"?



Isn't that kind of what's being tried now in Iraq and Afghanistan? I mean, if we added to the current demands of the military extablishment that they integrate police elements into their system, I think it could work but I'd have a hard time seeing how exactly. Would they imbed police like reporters? What criminal code would be followed? I'm not saying its impossible, those are just two questions that come to mind.
 

"Bart" DePalma:

Thanks for replying to my original questions to Professor Tamanaha. No seems to want to deal with the issues raised by treating al Qaeda like civilian criminal suspects.

I think you're wrong. You just don't think they are when they refuse to accept your "framing".

["Bart"]: During these discussions with our EU colleagues, was any effort given to determining how soldiers are supposed to:

(1) Gather evidence including testimony from foreign battlefields.

Our soldiers are not trained police officers, a battlefield is not a controlled crime scene and, as we have discovered in Iraq prosecutions of our own troops, enemy civilians do not make reliable courtroom witnesses.

[Arne]: What's the problem? Do you really think that the only competent evidence comes from police officers (not to mention the arguable assumption that police officers always offer competent evidence)?

You really don't know the difference between soldiering and police work, do you?


What makes you say that?

Soldiers in combat are spend 20-24 hours of the day maneuvering, fighting, resupplying, receiving orders and eating in about that order. If they are lucky and the enemy cooperates, they get a couple hours of sleep in between everything else.

Assuming arguendo what you say is true, SFW?

Soldiers have not been trained to and do not have time for looking for evidence, taking statements, preserving evidence, writing reports and chain of custody logs, not to mention providing testimony back in the US for depositions and trial of the thousands of enemy the military has captured. More importantly, you cannot do all that police work safely while you are trading fire with the enemy on a battlefield.

Again, SFW? As people have pointed out, there have been plenty of prosecutions of terrorists despite your rending of clothes and gnashing of teeth about the impossibility of such. Not to mention, soldiers, should they happen to be the recipients or perceivers of evidence, are no less skilled at conveying that than any other Joe off the street if called to present such in a court of law.

["Bart"]: (2) Gain intelligence from captured terrorists.

Under our criminal justice system, the suspect has a right to silence. Are the participants in these discussions actually advocating extending a right to silence to al Qaeda like Khalid Sheik Muhammad?

[Arne]: The "right to silence" exists for anyone with personal autonomy. What you're speaking of is the "freedom from coerced testimony" (or, more bluntly, freedom from torture or other coercive methods). I think the answer is, yes, there should be limits on the types of coercion we can use (just as is true with our own police).

I agree with you that there are limits to the coercion that even a soldier can use while interrogating an enemy combatant. However, the discussion is whether to treat enemy combatants as civilian criminal suspects and thereby extend a right to silence to them.


You mean "don't torture them" (but I gather from what you've said previously that you think that even this taboo ought to be reconsidered as seems 'prudent under the circumstances'. I don't.

The Geneva convention prohibits the use of coercion against enemy combatants. If they are not coerced, then they can decide for themselves whether they want to say anything.

Do you support extending a constitutional right to silence to captured al Qaeda? If not, then you at least partially disagree with treating al Qaeda as criminal suspects.

There is no "constitutional right of silence" (despite it's being phrased that way by many). The prohibition is, literally, exactly how I characterise it, not as a "right" of the suspect/person/captive/Terra-ist, but rather a restriction on what the gummint is allowed to do: "nor shall [anyone] be compelled in any criminal case to be a witness against himself". IOW, the gummint can't compel self-incriminatory testimony, and that is generally taken to mean no significant coercion, but torture or other punitive treatment, etc., for failure to comply. This I agree with. Not to mention I find that torture or other severe maltreatment is morally abhorrent as well (not to mention banned by various laws).

["Bart"]: (3) Keep terrorists from returning to the battlefield.

The purpose of detaining prisoners of war for the duration of the conflict is to prevent them from returning to the fight. Are the participants in these discussions actually advocating releasing captured terrorists back onto the battlefield if our military cannot prove a criminal case beyond a reasonable doubt after extending a right to silence to the terrorist?

[Arne]: No. Who said they were?

The consensus at these discussions was described as follows:...


Non-responsive to my question.

["Bart" goes off on a tangent}:

[quoting Brian Tamanaha]: "Second, most people reject the notion that the fight against terrorism is properly characterized as a “war” (notwithstanding the above named conference). Rather, it is a significant threat to public safety, one which promises to be with us for some time.

"Third, following from the second, there is a broad consensus that the response to terrorism should be conducted within standard legal mechanisms, much like any other kind of criminal proceeding..."

["Bart"]: You can only detain a person for the duration of a war if you consider yourself at war and the detainee as a prisoner of war. These attorneys do not consider our conflict with al Qaeda to be a war.


Yes? (ignoring for the time being that it isn't just sufficient for you to declare yourself to be at war with some person, group, or noun; there has to be a de facto [and also de jure, I'd opine] war to really justify such treatment) And the problem?!?!?

["Bart"]: If you treat the al Qaeda as civilian criminal suspects with constitutional rights, then you may only detain them pursuant to criminal justice proceedings and not as prisoners of war.

Who says?!?!?

Cheers,
 

Mike said...

I absolutely deny the logic of your conclusion. The idea that there are no battlefields in the absence of a "war" is absurd.

I am seriously trying to keep from laughing out loud here.

Professor Tamanaha and his colleagues claim that we are not at war with al Qaeda. This is their fantasy not mine.

Professor Tamanaha and his colleagues are not predicating this fantasy on the existence of a declaration of war nor are they arguing, so far as I know, that Korea and Vietnam were not real wars and that enemy combatants captured during those wars should have been treated as civilian criminal suspects. Consequently, your analogy to Vietnam and Korea is completely inapt.

If you do not have a war, you do not have battles and you cannot have battlefields.

The locations where civilian criminals commit murders are not called "battlefields." They are called crime scenes.

Again, under that logic, there were no battlefields in Korea or Vietnam, as those were not wars in the legal sense.

How do you come to that conclusion?

To start, you do not need a declaration of war to wage a de facto war war. The constitutional requirement for a declaration of war is a balance of powers issue between the branches, not a legal ruling as to whether we are actually at war.

Most of the wars in our history occurred without formal declarations of war. However, the law of war applied to each and every one of our wars, declared or not, and it applies to the current ones we are fighting in Iraq and Afghanistan, declared or not.

Nor is there war against Non al-Qaeda terrorist groups. The AUMF only authorized force against those that planned or were associated with 9/11. Therefore, there was no declaration of war against, say, Hamas, Hezbollah, or the more generic "terrorism".

I agree that the AUMF is not a declaration of war against generic terrorism. However, the 2001 AUMF is effectively very broad in its application because it authorizes the use of military force against any nation or organization which the President determines assisted in any way in the 9/11 attacks, which is essentially al Qaeda and its supporters and al Qaeda itself is a very broad umbrella organization of dozens of terror groups.

You seem to argue that either its a military exercise or its a criminal exercise and, apparently, they are mutually exclusive.

NO I DO NOT. Reread my last several posts. I have argued that combatants in a war can be both POWs and be tried for crimes. However, absent a war, the detainee can only be a civilian criminal suspect and may not be detained as a POW.
 

Anderson: Question for Robert: what about our invasion of Afghanistan? Was that sufficiently justified, in your opinion?

I wish I could just say "yes" on this, but I can't.

First, was it Afghanistan, the nation/state, which attacked our buildings, declared war on us? No.

Second, did we ever declare war on Afghanistan? No. Closest we got was the unconstitutional on void-for-vagueness grounds blank check of the September 18, 2001 AUMF.

Third, even stipulating the nation/state of Afghanistan did in fact harbor al Qaeda (either passively by failing to adequately pursue or actively by actually encouraging and supporting) how would such rise to the level justifying unilateral war rather than resolution, even by arms if so decided, in the community of nations (and at the one moment in history when that community was as solidly with us as we could ever hope for?)

Fourth, stipulating we "had the right," was there ever a credible argument that such an invasion would ever do other than increase the ranks of those who hate us, effectively doing more harm to us and good to al Qaeda than the other way around?

By now you can see I have talked myself into opposing even our unilateral invasion of the sovereign nation of Afghanistan. Likewise I hope you recognize it is a considered position, not a gut feeling.
 

Yo, hold up there. That was PNAC's reason for going into Iraq, recall? Arguably the presence of terrorists in Pakistan is better authenticated than the presence of WMD's in Iraq (ahem) nonetheless it would be an act of war for us to unilaterally abrogate Pakistan's sovereignty because we didn't approve of their handling of internal matters.

The critical difference being, of course, that Iraq didn't use WMDs against us, and save for a failed assassination attempt, did us no injury. It was the potential threat of WMDs that was hyped up by PNAC and its supporters that led to a preemptive war consistent with their military aspirations.

Contrast that with the Taliban and al-Qaida who not only acted against us (by direct action or by sheltering those who took such action), but who have also publicly declared their willingness to act again against our citizens, emphasizing that civilians are acceptable targets. That's not a pre-emptive action against a potential threat, it's a continued response to a clear set of actions.

While I detest the decision to enter Iraq, and protested vehemently against it, I have always been a supporter of action in Afghanistan intended to remove an actual threat.

I agree that Pakistan's sovereignty should be respected, but if they are incapable of policing their own frontiers, they must expect *some* kind of intervention. I'm not saying it's either send in the troops or sit on our hands until they attack us; there's more than one way to skin a cat. However, given the longevity of our public position towards regimes that support terrorism, surely it won't come as a surprise if we insist that action is taken. If troops were put on the ground to support in such an operation (especially if it were jointly done with Pakistan), I'd be behind that operation.

Multilateral support for the war in Afghanistan was much more present than it was in Iraq, by the way--another reason that I supported the intervention in Afghanistan, but found the invasion of Iraq untenable.

As for the AUMF, I think it should be repealed on the basis of vagueness, especially in light of its use as justification for all sorts of bad behavior by the executive branch, but I'm not quite ready to say that Congress has no ability to provide statutory authorization for the President to use military force.

I know we differ a bit on these topics, but that's fine, I understand your position and respect it. It just gives us more to discuss over the campfire.
 

I have posted this challenge to Dem posters on several blogs and will do so again here. Name any country into which you would deploy the military to fight a ground war against al Qaeda. (al Qaeda has to be in that country, so Afghanistan is not an option). Just one.

Bart, just in case you've missed it, several people here on this thread have advocated sending troops into Pakistan. You will say the Democratic Party has not come out in favor of such an action. That is true. Neither has the Republican Party. It will probably take a more serious provocation to persuade either party to support such an action, but I do not rule it out.

As for the view that you must favor invading some country besides Afghanistan to truly fight Al-Qaeda, you could probably stretch out a map of all Muslim countries, put on a blindfold, throw a dart at the map and invade whatever country you hit. It is entirely predictable some sort of insurgency would follow, various international terrorist would show up, start calling themselves Al-Qaeda, and vow holy war on the infidels. You could then name this random country the central front in the war on terror and proclaim that we are fighting them over there so we don't have to fight them here. Predictably, we would do quite a bit of fighting "over there," kill a lot of jihadis, and proclaim that this was keeping us safer. It does not logically follow that we should.
 

PMS_Chicago: I think Robert mischaracterizes this hypothetical action when he calls it "preemptive war"...

Yo, hold up there. That was PNAC's reason for going into Iraq, recall?


Technically, I believe our invasion of Iraq constituted preventive war. Neither that nor "pre-emptive war" would be the proper term for the invasion of Afghanistan or an incursion into Pakistan, should one occur. In both cases, military intervention would be more akin to the "hot pursuit" doctrine which allows police to follow a fleeing criminal outside the boundaries of their usual jurisdiction (think Pancho Villa).
 

PMS_Chicago: Contrast that with the Taliban and al-Qaida...

I think we can agree that the Taliban is/was to the nation/state of Afghanistan what the GOP (or maybe PNAC) is the U.S., yes? So should you be killed because the PNAC thought it right to bomb Iran? I don't buy it.

(Cough, hack; damned smoky campfires! Is the beer still cold?)

I agree that Pakistan's sovereignty should be respected, but if they are incapable of policing their own frontiers, they must expect *some* kind of intervention.

I might buy that, but certainly I wouldn't buy unilateral action by the U.S.. As opposed, say, to a Cheney who thinks our alleged status as "the remaining superpower" (ahem, "...China...", splutter) grants us vast rights based on might, I tend to think our power rather burdens us with great responsibility...including the responsibility to lead by example and strengthen the community of nations for the benefit of all.

And, again, better to fail to reach the right goal, but have moved the ball in the proper direction, than to succeed in scoring the wrong goal. ;)
 

Mark Field: In both cases, military intervention would be more akin to the "hot pursuit" doctrine...

As a 2l I certainly appreciate that distinction. However, isn't the bar a little higher for, say, mobilizing troops to invade and occupy a sovereign nation than for an officer to temporarily invade a citizen's home? Even if your argument is accepted and the policy it supports deemed sound, is there law to support such action?

And in the case of Pakistan can we say six years later that our pursuit is still "hot"? Maybe in 2001 in Afghanistan that would fly, but in 2007 in Pakistan? I have trouble with that.

No, I don't think there are sound grounds for unilateral invasions of sovereign nations. I think that's what the community of nations was created to prevent and that we should be working therein.

I am aware I am in a minority. Even my liberal friends often find me too liberal.

Peace.
 

Come off of it Bart. Why don't you ask whether the Professor if there are battlefields in Iraq or Afghanistan. Maybe I am wrong, but I would bet that simply because he doesn't believe in a "war" against terrorism, doesn't mean that he would deny that there are battlefields in both Afghanistan and Iraq.
 

However, isn't the bar a little higher for, say, mobilizing troops to invade and occupy a sovereign nation than for an officer to temporarily invade a citizen's home? Even if your argument is accepted and the policy it supports deemed sound, is there law to support such action?

Absolutely, the bar is higher. In fact, I'm not sure the doctrine of "hot pursuit" is accepted in international law. It IS used, though...

And in the case of Pakistan can we say six years later that our pursuit is still "hot"? Maybe in 2001 in Afghanistan that would fly, but in 2007 in Pakistan? I have trouble with that.

Depends on the circumstances. If, say, Osama himself crossed the border on a raid and our troops pursued him, I expect we'd continue into Pakistan to catch him, claim hot pursuit, and issue a formal apology later.

OTOH, invading the border zone, as Anderson suggests, probably wouldn't pass the straight face test if justified as hot pursuit. We'd need to take the position that Pakistan is incapable of exercising sovereignty there. That's a much more problematic assertion. Not because it's necessarily false, but because of the repercussions.
 

Mark Field: OTOH, invading the border zone, as Anderson suggests, probably wouldn't pass the straight face test if justified as hot pursuit.

That's the one test our PNAC overlords will always pass. ;)

Seriously, I'm with you that there might be real world examples where the hot pursuit reasoning might be apt. But where you say "issue apologies later" you seem to presuppose, more or less axiomatically, that it's a matter of comity on our part rather than duty or rights and that we'd get away with it. But what if the nation so invaded didn't feel like accepting an apology? What if they, like many other national leaders, felt they had more to gain from such an opportunity to go to war? Transfer this scenario to, say, Iraq and Sadr and the Iranian border. Would apologizing later suffice? And would the heads of either state want it to? Maybe better to counsel against such acts sooner rather than later?
 

Robert,

I think we can agree that the Taliban is/was to the nation/state of Afghanistan what the GOP (or maybe PNAC) is the U.S., yes? So should you be killed because the PNAC thought it right to bomb Iran? I don't buy it.

I would say the Taliban was to the state of Afghanistan more like the Communist Party was to a Communist country. When a party controls the state to that degree, the party can for all practical purposes be treated as the state.

I also do not accept that war can only take place between nation-states and that everything else is mere crime. There has been ample evidence that non-state actors can wage war for a long time. And, with all due respect, I find your insistence that we act as if only states can wage war in the face of facts to the contrary reminds me of nothing so much as a constitutional originalist insisting that we interpret the law as if we still lived in the 18th century when we do not. :-)
 

But where you say "issue apologies later" you seem to presuppose, more or less axiomatically, that it's a matter of comity on our part rather than duty or rights and that we'd get away with it.

Yes. If the neighboring country were friendly and controlled its own territory (Canada), then these issues can be worked out in advance. Maybe we'd follow; maybe we'd just call our buddies over the line and point them in the right direction.

When the other country is NOT friendly, then it becomes a pragmatic question of trade-offs: which country is more powerful? what are the costs likely to be, power aside? how sure are we to accomplish our goal? Etc.

As I implied above, "hot pursuit" is often just a polite fiction that nations use to save face. We might use that excuse if we crossed into Pakistan, issue a formal apology, and offer compensation. Depends on the circumstances.
 

Bart:

I know you like to pretend being the "gentleman" here with a faux civility (until someone kicks you real hard in the nether regions and you can't help let your true nature out). But, may I say, I think that if you were a true gentleman and a person truly interested in dispassionate and honest discussion, you would cease to attribute falsely to others views that they have not actually said (if you ant to argue about what "some lib'ruls say", you would best be advised to go to some forum where said persons are actually saying the things you claim they said ... and all here woudl appreciate it). I'd say that a rough estimate of the number of threads where you engage in the "straw man" technique of discussion is roughly 50%, and prehaps higher than that. This is deeply dishonest ... and furthermore, probably less polite than the occasional non-entlemanly epithet.

A challenge for you, Bart: Can you go for a week in reading and responding to the actual comments of your fellow communicants here, and see if you can resist putting words in their mouth or telling other what they think? I suspect it will be hard. But surprise us; see if this is a challenge you can manage to meet.

Best to you.

Cheers,
 

"Bart" DePalma:

Professor Tamanaha and his colleagues claim that we are not at war with al Qaeda. This is their fantasy not mine.

Fantasy or not, there's a fair amount of truth to this, and even if you diagree in the end about whether it's "war" or not, there's room for reasoned disagreement.

The campaign against non-state terrorists shares many elements with criminal enforcement problems, not the least of which is the undeniable fact that the tactics used are, by pretty much every rational standard, "criminal" (which is why you apparently insist on calling the alleged perps "unlawful enemy combatants").

Another characteristic is that such non-state actors, with the limited means and backing they have, really pose no threat of bringing down our gummint (or occupying us), even if they're capable of causing lots of death and sadness to individuals and to the nation (but that's true of the random domestic murders and the 50K or so automobile deaths a year).

Why do you insist it's a "war" when pretty much eveyone else (including military experts) talk about the acute differences in "assymetric warfare" and the quite different gound rules that pertain?

I'd hope you are msarter than Mao Tse Tung and Ho Chi Minh. They understood quite well that it was possible to win battles and lose wars ... and the converse. More importantly, the question of whether it's the battle or the war that should won is lost obne the twoare dissociated (and keep in mind that the two sides of a dispute may disagree on even this, so that both may believe they have a "victory" in the very same clash). Did you miss that chapter in yur military history?

Cheers,
 

Must preview, must preview....

Outside of the obvious typos, there was this:

"is lost obne the twoare dissociated" -> "is lost once the two are dissociated"

Mea culpa, folks. Sorry.

Cheers,
 

"Bart" DePalma:

The locations where civilian criminals commit murders are not called "battlefields." They are called crime scenes.

Well ... unless they commit these crimes on battlefields (which then become "murder scenes" as well ... you know, like the mass graves at Srebenica...)

But, I'd not that "Bart" digs his own grave here. If he's insisting that no criminals commit crimes at battlefields, then he should have no problem treaing "unlawful" enemy combatants as criminals.

Cheers,
 

Mike said...

Why don't you ask whether the Professor if there are battlefields in Iraq or Afghanistan. Maybe I am wrong, but I would bet that simply because he doesn't believe in a "war" against terrorism, doesn't mean that he would deny that there are battlefields in both Afghanistan and Iraq.

I would love to hear how the good Professor, his EU colleagues or anyone else who thinks that al Qaeda or its allies like the Taliban should be treated like civilian criminal suspects explain to this old Army grunt how we are not really at war in Iraq and Afghanistan and how the enemy prisoners from those un-wars are not really wartime enemy combatants.

The idea is really quite surreal to me and suggests a distinct detachment from reality.
 

It is not up to me to prove a negative (ie the nonexistence of al Qaeda in Afghanistan).

If you think that we are currently fighting al Qaeda in Afghanistan, then provide us with your evidence.

# posted by Bart DePalma : 5:13 PM


We invaded Afghanistan because of an attack by Al Qaeda based in that country. If you think we've accomplished the goal of ridding Afghanistan of Al Qaeda, it's up to you to prove it, not me to disprove it.

And if you do think we've rid the country of Al Qaeda, I assume you are in favor of removing our troops, as we no longer have any reason to be fighting there.
 

explain to this old Army grunt how we are not really at war in Iraq and Afghanistan and how the enemy prisoners from those un-wars are not really wartime enemy combatants.

The idea is really quite surreal to me and suggests a distinct detachment from reality.

# posted by Bart DePalma : 11:39 PM


The same old army grunt who thinks our troops are safer in Iraq than if they were here in the US?
 

Robert re: Afghanistan: how would such rise to the level justifying unilateral war rather than resolution, even by arms if so decided, in the community of nations

I don't think there are terribly clear precedents in int'l law that would make this a simple question; I may just be ignorant of same.

But no state renounced its right to declare war by joining the UN. And if harboring terrorists who've just blown up the WTC isn't a casus belli, then I don't know what is.

Remember that we issued the Taliban regime an ultimatum: give us OBL, or else. They could have done that, and there would've been no invasion, and the Taliban might rejoice in their rule today.

Mark Field is absolutely right about the policy repercussions of going into the NW Province, and quite honestly, I don't have access to the kind of information that would allow me to make that call.

However, leaving aside "hot pursuit," I think it's entirely appropriate to issue an ultimatum to Pakistan: control your borders, or else admit that you cannot do so.

The entire thing could be dressed up a bit, as I suggested, into a "joint operation" by U.S.-Pakistani forces. Whether that would help or hurt the regime's prestige, I dunno.
 

Enlightened Layperson: I also do not accept that war can only take place between nation-states and that everything else is mere crime.

Well, I'd sure disclaim use of the diminutive, dismissive, pejorative sense of "mere" you seem to offer. ;) There are strict limits on when we can declare war. (Well, there were, they've been chipped away at from Korea forward.) But I would prefer not to be boxed into such a black-and-white formulation as "war or mere crime'" when, as Arne points out so eloquently, it's a tad more complex than that.

I find your insistence that we act as if only states can wage war in the face of facts to the contrary reminds me of nothing so much as a constitutional originalist insisting that we interpret the law as if we still lived in the 18th century when we do not. :-)

Heh. Only because part of the conversation has been pre-figured for us by trolls. In the 18th century we hadn't the lessons learned from the years between the assassination of Ferdinand to the nuking of Hiroshima and Nagasaki. Lots of water under the bridge, and lessons learned and the beginnings of a community of nations committed to learning those lessons and remembering them and preventing the horrors that taught them. Strange, isn't it, how completely we've turned our back on those lessons and that community now that we think we're the big dog.

Besides, when did ad hominems become an acceptable substitute for reasoning? My reasoning is wrong 'cause I sound like an originalist? Okay, I see the smiley, so I'll stand down. ::grin::

As I point out here, war does indeed come in many flavors. But where the issue is the United States of American mobilizing its armed forces as a nation "war" is strictly limited to conflicts between nation/states. Just because someone else says they are "warring" on us does not mean we can legitimately claim to be at war with them.

The growing, loose knit web of folks willing to use terror and guerrilla tactics against us can and does use the rhetoric of war. That web of folks is identified and motivated differently than "rent seeking crime syndicates." They are capable even of commanding credible militias in some places. That does not however mean that we can credibly "be at war" with same, save in the "struggle against an injurious condition" sense of the term, as in "war on drugs", "war on crime", "war on poverty." The only sense of war, as a matter of Constitutional textualism, and as a matter of sane policy, for which we can put the nation on a war footing, with attendant threats to civil liberties &c, is "armed conflict between nations" (and I'd toss in a requirement for credible threat to the existential continuity of one or more parties to the conflict, but that's not in the Webster's quote.)

The rhetoric of the day simply posits axiomatically that recourse to the community of nations is futile and that we will (or "we must" or "we have the right") to act unilaterally irrespective of the sovereignty of other nations. This is immoral on its face, illegal in the context of the laws of that community of nations we helped form, and ill considered in terms of long term realpolitik. Three strikes...

But no one really asked me. B^) So I'll close with a fantasy bumper sticker which no one but me seems to "get":

War on Terror? Splint on Smallpox!

Peace.
 

Mark Field: Depends on the circumstances.

I feel like I'm fighting something of an uphill battle, as I seem to be the only one here who fails to axiomatically posit that we are the world's policeman and the experiment of the community of nations is an abject failure on which we must turn our backs and thus we can/must/have-the-right to abrogate the sovereignty of other nations more or less willy nilly.

There are circumstances and there are circumstances. One circumstance which seems relevant is "credible imminent existential threat." That might be a circumstance in which the community of nations would agree to uphold a unilateral action violating the sovereignty of a member nation. And, of course, to the extent that the nations in question are friendly neighbors then it might just be a matter of consent.

I guess that's the real danger of the "hot pursuit" metaphor: it enshrines the notion that no nation is co-equal with us. We are the superpower, the cops, the authority, and we permit self-determination only to the extent it does not interfere with our objectives. I, for one, am not comfortable with such a view of my nation.
 

Anderson: But no state renounced its right to declare war by joining the UN. And if harboring terrorists who've just blown up the WTC isn't a casus belli, then I don't know what is.

Remember that we issued the Taliban regime an ultimatum: give us OBL, or else.


This conversation will ultimately lead me to do a little homework. I don't know if it's our UN membership or our status as signatory to the Geneva Conventions (or even if the one implies/establishes the other?) which comes with a forswearing of wars of aggression...but I'm reasonably certain we as a nation are on record as having pledged to so forswear such wars. Likewise I'm sure there are provisions for circumstances which might be less black and white.

Now it might indeed be the case that our former allies, the Taliban, were in a position of authority over, and thus of responsibility for, the nation of Afghanistan such that under the rules we helped promulgate and signed onto we would be authorized to act unilaterally. The circumstances of "hot pursuit" might even apply (overlooking that there never was a credible existential threat to our nation.)

So, in a nutshell, I could be wrong about the legality of invading Afghanistan under the rules of the community of nations we helped write, be those rules UN charter or Geneva Convention (and, again, I feel a terrible vulnerability because I don't know enough about the structure of either nor how they inter-relate.) But if I am wrong I have yet to be properly educated so as to understand my error, nor have my arguments been refuted, only disputed, typically with a presumption of the acceptability of our position as "the world's policeman" and the futility of recourse to the community of nations, both premises I flatly reject.

Peace.
 

I feel like I'm fighting something of an uphill battle, as I seem to be the only one here who fails to axiomatically posit that we are the world's policeman and the experiment of the community of nations is an abject failure on which we must turn our backs and thus we can/must/have-the-right to abrogate the sovereignty of other nations more or less willy nilly.

I certainly don't mean to generalize from the specific case of OBL to claim a right to intervene in other cases. I doubt Anderson or EL would go so far either. It's only in the particular case of OBL that I would consider going into Pakistan (like Anderson and the rest of us, I lack the specific information necessary to make the call). The rest of my posts were only intended to deal with the issue in hypothetical terms; I don't intend any generalized justification of unilateral intervention.
 

I'm genuinely interested in anything that you find, Robert -- please pass it along.

Just for hypo purposes, suppose an ICBM is launched from Russia, hits Cleveland. Putin says "hey, wasn't ME, it was some rogue elements who've taken over a nuclear base." We tell him he needs to round up these rogues, and he waffles -- public opinion, lack of reliable troops, whatever.

At that point, I don't see how military action against a target within Russian borders is a "war of aggression" or would require UN approval (remember the Russian veto btw).

See however, via Matt Yglesias, this argument why invading Pakistan is a bad idea. I'm unconvinced, but reasonable folk may differ.
 

arne/bb:

It is impossible to prove a negative with positive evidence. You can indirectly demonstrate a negative by pointing out the absence of positive evidence:

What follows is the evidence that al Qaeda currently operates in Afghanistan....

[nothing]

OK, I have "proven" the negative that al Qaeda does not currently operate in Afghanistan. If you disagree with this nothing, then present the evidence for the positive proposition that al Qaeda currently operates in Afghanistan.
 

rl: Now it might indeed be the case that our former allies, the Taliban, were in a position of authority over, and thus of responsibility for, the nation of Afghanistan such that under the rules we helped promulgate and signed onto we would be authorized to act unilaterally.

Yeah, take a look at UN Security Resolution 1368 if you want to see international support for a hard position against Afghanistan (and by extension, Pakistan). I don't think it would be that difficult to obtain another resolution IF Pakistan's inability to deal with the threat was obvious and systemic.
 

OK, I have "proven" the negative that al Qaeda does not currently operate in Afghanistan. If you disagree with this nothing, then present the evidence for the positive proposition that al Qaeda currently operates in Afghanistan.

# posted by Bart DePalma : 12:15 PM


The evidence that Al Qaeda is still in Iraq is quite obvious. We still have a lot of troops fighting there. Since we didn't invade Afghanistan to fight the Talliban, if Al Qaeda is really gone, then we would have removed our troops.

Good luck proving that we're only fighting Talliban.
 

PMS, that resolution was two months after 9/11 and before the U.S. had lost its freakin' mind. I am quite skeptical we could get a similar resolution today. It would be good form to request one, I think.
 

PMS_Chicago: Yeah, take a look at UN Security Resolution 1368 if you want to see international support for a hard position against Afghanistan (and by extension, Pakistan).

Okay, I read it. Lots of nice rhetoric about standing with us and doing everything necessary. But just because one of the permanent representatives said, "Indeed, no distinction would be made between those who committed those acts and those who harboured the criminals," it does not follow that we have been authorized to invade and occupy sovereign nations, not as I read the plain language of that resolution. If we're pinning our legal standing in the international sphere on this, well, it's about as robust as the blank check of the AUMF of September 18, 2001, which is to say, only as robust as our ability to enforce "right makes might."

Doggone it, is this really the best we've got?

And the Pakistan matter is, by extension as you say, much much less clear cut, unless there are other more specific authorizations out there. But the resolution you cite really doesn't, to my eye, rise to the level of anything more than an expression of sympathy.

Maybe I just don't understand how these things work?
 

Mark Field: I certainly don't mean to generalize from the specific case...

Nor would I ever think such of you. But the discourse has long since been prefigured such that OBL is but an exemplar of a generalized view actively pursued and promoted by PNAC and others. We need to actively oppose, refute, that general view. Pursuit of OBL might justify exceptions to the general rules of state sovereignty. But the dominant discourse presumes it rather than treating it as an important matter to be properly proved.

As said elsewhere, I'm not the scholar of international law to speak definitively about the legality of our invasion of Afghanistan in pursuit of OBL, but certainly arguments for that were stronger than the speculations floating around re: Pakistan, no?
 

Anderson: Just for hypo purposes...

I'm so far over budget, time wise, on this one that I hope I can be forgiven for declining your hypo. All I can say is you seem to have raised a good grey area. I'd like to think one fine day the community of nations will be a strong enough reality to allow a wise resolution. (Yes, that's completely non-responsive, but I mean it respectfully.)

Peace.
 

"Bart" DePalma:

arne/bb:

It is impossible to prove a negative with positive evidence. You can indirectly demonstrate a negative by pointing out the absence of positive evidence:


Regardless of any difficulties you might have in doing so, that's not our problem (although I'd note that it is possible to prove negatives to a sufficient level of satisfaction under certain circumstances; e.g. I can prove tomy own satisfaction that there are no kitty cats on my suitcase). When you make a negative assertion (just like all assertions), you should be prepared to back that assertion up with -- if not proof -- at least some competent evidence strong enough to make your case. That's your problem.

Hope that's clear.

Cheers,
 

I doubt it's clear to him, but that's also not really our problem.
 

I apologise if in skimming I have missed if this has been covered, but it seems that there's a couple of very obvious fallacies in Mr DePalma's argument which have not been pointed out.

Firstly, his initial notion that treating terrorism as a criminal activity would result in us sending forensic scientists into Basra seems to be entirely based on the idea that these "european professors" -- and if harsher insults exist then I have not heard them -- do not believe we are at war. This can only be considered the case if one believes that the current military conflicts in Iraq and Afghanistan are inseparable from the "GWOT", which is clearly bunkum. One can quite easily entertain the notion that the United States is, in fact, in the middle of a war zone in Iraq alongside the notion that declaring war on an abstract noun was at best a an oversimplified shorthand for a basket of proposed political and military strategies, and at worst deliberate and misleading propaganda aimed at distracting a domestic population from the issues at hand.

In getting rid of the concept of the GWOT we would have to acknowledge that we are not "fighting terror" in Iraq, but rather stuck in the middle of a bitter partisan civil war which our actions directly precipitated. I understand that this is not as emotionally satisfying to believe as the alternative. Nonetheless, we are all grown ups here and we should all be aware that wishing for something does not make it true, as evidence by the fact I am not obscenely rich and surrounded by naked women.

Secondly, there is some kind of idea being bandied about about Al Quaeda being banished from the magical kingdom of Afghanistan into the dark depths of Pakistan, hence why we needed to invade Iraq. However, google throws up myriad news reports from 2007 when you type in "al quaeda afghanistan resurgence", including this one from ABC in March, headed Senate Hearings Focus on Resurgence of Al Qaeda in Afghanistan. I quote:

"Earlier this week, a car bomb exploded at a U.S. military base in Afghanistan while Vice President Dick Cheney was visiting.

After meeting with the president and vice president Wednesday, Democratic leaders said that they were happy Cheney was safe but that they were worried about what lay ahead for the war-torn country.

"We believe that Afghanistan is the point of that confrontation with terrorism and we must succeed in Afghanistan," Majority Leader Steny Hoyer, D-Md., said at a news conference after the meeting.
"

Now, I know that it has been established that Mr DePalma is the resident troll and that we should not dignify him with a response, but these really were two egregious errors of reasoning and undermine, I believe, every word he has said in the thread. Would it be too much to ask that his testimony be stricken from the record and we find some credible witnesses for the prosecution?
 

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