Quickly--tell me the difference between a detainee and a prisoner. A prisoner and a prisoner of war? An enemy combatant and a terrorist? A terrorist and a criminal? A soldier and an enemy combatant? What the hell is a lawful combatant vs. an unlawful combatant?
While we're thinking of language, describe the differences between an insurgent and an enemy combatant, a criminal and an insurgent, a terrorist and an accused terrorist.
How about the difference between war and the War on Terror? The War on Terror and a police action? Counter-terrorism and policing? Trial by jury and courts-martial? Courts-martial and military commissions? Indefinite detention and abrogation of the right of habeas corpus?
It is amid the thickets of corrupted language that we understand how our politics have become so vile and our Constitution so endangered. It is in language, too, that our foreign policies and legal system have become mired. And it is with clever but imprecise language that the administration is trying to sidestep the meaning of Hamdan v. Rumsfeld--a decision that seems to promise some means of redress for the detainees of Guantanamo, but may wind up dumping them into a new limbo.
I started writing this post a few days ago, and in the interim Billmon authored a post that addresses, in a way, some of these questions:
The rise of Fourth Generation warfare hasn't just stumped the Pentagon (which is still trying to fight insurgents with tanks and 500-pound bombs) it's also rendered obsolete and/or inapt many of the traditional legal precedents on the status of combatants and noncombatants, the legal rights of military detainees, and the application of the Geneva Conventions -- just to mention some of the issues directly raised by Hamdan.
Reading through some of the old cases, like Eisentrager, gives you a sense of how big the disconnect has become. To cite just one example:
The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.
Consider how many of the premises in that statement are not directly applicable to the fight against Al Qaeda. There is no war -- at least in the old-fashioned sense of a declared conflict between two sovereign states. There is no government for the "alien enemy" to serve. Indeed, the very concept of the enemy has been severed from national citizenship.... [snip]
The problem, in a nutshell, is that the administration's reaction to the not-so-brave new world in which we now find ourselves basically boils down to: "The old rules don't apply (except, of course, where they maximize presidential war powers) so we can do anything we want. Get out the thumbscrews." The position taken by many liberals, on the other hand, has been that the old rules are just fine (that is, unless they buttress presidential war powers) even if it means pretending not much has really changed. This at times leads to the assertion that the war against Al Qaeda isn't really a war, and shouldn't be treated as such.
Billmon goes on to say that he believes the war against al Qaeda and Islamic terrorism is indeed a war that, as such, "justifies the application of presidential war powers." He also recognizes that it will be a long war, made longer by the ineptitude of the administration.
With all due respect to Billmon, I am not so sure that the actions necessary to control international terrorism are those of waging war. And I say "control" because by its very nature, terrorism is a tactic that isn't defeated except in individual instances; it is rather a practical phenomenon that can be minimized or discouraged by techniques more associated with policing than combat.
Instead, we are stuck in a "day after" mindset. I vividly remember getting a call from a dear friend late on the day of 9/11 and he said, briefly, "This means war, you know." When Colin Powell made his first statement after the attack and talked about "bringing them to justice," I was completely incensed. I emailed Chuck Schumer ranting that I didn't want to hear talk about "criminals" and "bringing to justice," but that I wanted them "crushed."
That was then. This is now, and for many Americans the irrational fury of revenge is largely spent. Bush, Cheney and the war-mongers have tried to keep it alive, hitting the fear button for political advantage every chance they get.
Part of the difficulty of getting past the language of war to the more productive language of crime is how to reconcile the true nature of the conflict we are in with the terrible loss of so many young soldiers' lives. But it must be done.
The conflict in Iraq doesn't look any more like a "war" than the War on Terrorism, despite the insane dangers of IEDs, insurgent attacks, and pitched battles on street corners. If it is a war, then it is a civil war in which we have no business. Of course, we brought about the conditions that made this situation inevitable and bear that guilt. But at this point, we are clearly exacerbating the hostilities by our very presence while doing precious little to make things better. So for us, the fighting in Iraq is more of a defensive holding nature than war to truly conquer an enemy that will formally cease hostilities.
All along, it's been evident that defeating al Qaeda's plots and plans requires detective work, more and better spies, informants, limited strikes against terrorist cells and hideouts. It requires close cooperation among allies and creative diplomacy. It requires understanding the motivations of the enemy and anticipating his moves.
All of that sounds more like police work than soldiering to me. There was excellent cause for the military invasion of Afghanistan since it was a state thoroughly involved with aiding and abetting the criminals. Beyond that, though, we are fighting an enemy more like the mob or urban gangs than an opposing army.
So what are we doing, and how should we proceed? Billmon argues for a rethinking of the rules to accommodate new situations:
Where I differ violently (so to speak) from the authoritarians in the White House is in recognizing that precisely because this is going to be a long war, and precisely because the traditional distinctions -- "enemy aliens," "lawful combatants" -- are becoming blurred or are no longer meaningful, it may be necessary to change the rules in ways that enhance some of the legal rights of detainees and restrict some of the uses of presidential power.
To me, this is just common sense. To withstand a long war, the rules for identifying and detaining POWs have to be sustainable -- legally, morally and politically. They have to attract the neutral or the non-committed to America's side, not push them away. They have to weaken the will of the enemy to resist, not strengthen it. And they have to protect Constitutional liberties or at least not harm them, rather than contribute to the steady erosion of freedom that long wars tend to produce. Compared to those needs, the value of any useful intelligence produced by the administration's Kafkaesque torture machine -- or any vengeance wreaked upon the architects of 9/11 -- is trivial, even if it exists.
But what's the alternative? Sticking our heads in the sand and pretending the world hasn't changed?
Enhancing some of the legal rights of detainees sounds like a non-starter to me, given the current political climate. I take a simpler approach. Since I believe we have a fairly robust system for dealing with criminals while ensuring their rights (though the high court has been eroding those rights lately), I think we should apply what we already know and administer well.
I believe al Qaeda terrorists are no more soldiers, "combatants" of any stripe, than a mob capo or a gang lieutenant. They are glorified, highly dangerous criminals. And they should be dealt with as such.
While this approach would do nothing to enhance Commander Codpiece's stature as Commander-in-Chief-of-All-He-Surveys, it would finally bring some rationality to the pursuit and punishment of international terrorists.
This was Patrick Fitzgerald's approach when he went after the blind Sheikh Omar Abdel Rahman. It is the approach that would finally winnow the dangerous characters from the dupes at Guantanamo. And as far as the intelligence revelations that might come out in court, we have legal ways of dealing with secret evidence that don't shred our Constitution. At any rate, in this I agree with Billmon:
You can certainly argue, as I did in my earlier post, that the Cheney administration's crimes prove it can't be trusted to use any discretionary powers wisely -- that the existing legal framework, however flawed, is our only bulwark against a whole string of Abu Ghraibs. But I prefer to think a distinction can and should still be made between the current gang of criminals and the American presidency as an institution. We can still hope that future administrations will be willing to prosecute the war within the boundaries of constitutional legality and human decency.
And if I'm wrong? Well, then no legal system and no set of rules -- old or new -- will be sufficient to save our liberties or stave off America's defeat.
[Cross-posted at
The Broad View]