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Archive for the ‘Law of War’ Category

Terrorism is an act of war by an enemy organized along military lines.  Bush, for all his faults, always understood this and embraced the use of a military strategy and a military disposition of al Qaeda.  Indeed, his only fault in this regard was his deference to Supreme Court interference in his prosecution of this military strategy; he should have told them to pound sand.

Now we have the first major acquittal of the Obama civilian terror trials:  one of the perpetrators of the African embassy bombings, Ahmed whatever-the-heck, has been let go with nearly a complete acquittal.  Obama and his AG Eric Holder, recall, made a big show of the importance of civilian trials during the campaign.  They even tried to have Khalid Sheik Mohammad tried in NYC to show their good faith, until a major public outcry.  This obsession with due process for al Qaeda was a main concern of the far left for many years during the Bush years.  Indeed, it was this particular concern of a vocal sliver of the Democratic Party’s pseudo-educated elite that did much to cost them the election in 2004, and it is this continued obsession–along with other hobby horses like police brutality or gay marriage–that cost them more recently. 

Terrorists do not deserve civilian trials; the rules of civilian trials are inadequate to the problem, as the problems of war are far grander than ordinary crimes. Just as  scope of harm is much greater, the risks of mistaken findings of guilt are, frankly, much smaller, as they’re almost exclusively borne by non-Americans. In other words, they are not borne by anyone deserving of protection under our Constitution or in the community of interest that makes up our country.  These two reasons:  higher stakes and victims less deserving of procedural justice are what define war, as war is a violent conflict of two communities where procedure may consist of a fleeting glimpse of the shape of a helmet or enemy rifle to define who lives or dies. 

The legal arguments in favor of civilian trials are weak, and I’ve discussed them at length elsewhere.  But the practical consequences should have been obvious after the first WTC bombing trial of the Blind Sheik, where the use of signals intelligence technology to track al Qaeda’s satellite phones led to their disuse.  Lord knows what other leaks will come from this method; more important, this method is focused less on retribution and gathering of intelligence than a military tribunal and detention regime.  And today we see the fruits of such excessive and slavish devotion to procedural justice for an extremely dangerous and committed group of terrorists.

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I suspect that Eric Holder and company are putting KSM, Ramzi bin Alsheebh, and the other high level al Qaeda folks in federal court for a few reasons.  First, it’s a way of repudiating Bush’s controversial classification of high level al Qaeda people as an illegal military organization.  Second, it shows a naive faith in the justice system that does not address the real problems with ordinary civil trials for terrorists, i.e., the requirements of Miranda warnings for someone as high level as Osama bin Laden or the revelation of intelligence-gathering techniques as happened in the first World Trade Center trial of Ramzi Yousef.  Three, it shows someone who has not really thought through a controversial decision, which is a sign of a guy making decisions in an echo chamber.  Of course, this last bit is not that surprising.  Various high level DOJ folks spent much of the last eight years representing al Qaeda’s biggest dirtbags and getting them habeas review and other assorted offensive gestures, which rendered the benefits of the military tribunal system less robust than they would otherwise be.

I really don’t understand this way of thinking.  There are criminals, sometimes very bad people but also fellow citizens, and they deserve a robust defense.  They deserve this because they’re proxies for all of us potentially, who may wind up through mistake, bad luck, or the like an innocent person in the dock, criminally accused.  But al Qaeda detainees are foreigners, bad people, mass murderers, and delared enemies of the United States.   As enemies they’ve always been treated differently.  You don’t blow up the house of an accused criminal, but you do blow up an al Qaeda member’s house overseas, and you don’t worry too much about his wife and children who may be at home. It’s a different more flexible set of rules where the fears of domestic overreach have little application, not least because these are foreigners and enemies.  We’re not going to do this to fellow citizens.  There is little danger of any normal American being on the wrong end of this system.

Obama’s a lawyer, and this privileging of the domestic legal system over well-established principles of military justice is part and parcel of the broader contempt liberals have shown for the military since the Vietnam War, exemplified, not least, by their mass expulsion of ROTC from Ivy League campuses, and the mass desertion from military service by those who attend elite schools.

This is an atrocious and indefensible decision, and Holder’s defense of it shows the slipshod way that it was enacted and is now being defended.  Watching him squirm, however, gives me newfound respect for Lindsay Graham.

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I followed closely and also defended most of the administration’s actions on military tribunals and detention of unlawful enemy combatants. The victory of the administration in convicting Osama bin Laden’s drive, Salim Hamden, has proven a Phyrrhic one. The military tribunals process has been drawn out and subject to repeated smack downs by the judiciary. This end result contradicts their initial purpose which was to be swift, harsh, and devoid of intelligence leaks that would occur in a civilian trial. It has simply taken too long for this process to get underway. Further, the administration’s public relations have been as hackneyed as usual, insofar as most of the GITMO detentions are preventative rather than punitive in nature, and the initial characerization of GITMO’s denziens as the “worst of the worst” has been shown to be a gross exagerration.

The biggest obstacle to the administration’s designs has been a predictable but hitherto overlooked one: the culture of the American military combined with their role in sentencing. Military men the world over have often found war crimes trials unseemly, overly political, and arbitrary in who is punished, released, or overlooked altogether. Ideologically charged civilians in the DOJ would likely be more harsh and consistent in their dispatch of al Qaeda’s foot-soldiers on the familiar RICO theory of “enterprise liability” coupled with the military offense of belonging to an irregular and illegal organization. Under the UCMJ, the court martial panel decides on the sentence for the accused, in contrast to judicial sentencing in civilian courts. It is strange that mandatory sentences and the application of sentencing by a civilian judge has not been imported into the tribunals regime, as in this particular the military practice is decidedly more pro-defendant.

The old “law of war” rules that lawful combatants must be in uniform, bearing arms openly, and attached to a state actor has been undermined by a century of irregular wars of national liberation. From Vietnam to Somalia, our military is quite simply used to fighting such “irregulars” and does not find that behavior, without more, to be a serious offense. Americans in general are also unlikely to subject individuals to group liability for the actions of others. It appears the military panel here distinguished pure terrorists from mere fellow travellers. The al Qaeda forces in Afghanistan, in contrast to the 9-11 hijackers, were primarily involved in a conventional war with the Northern Alliance and were in the country by voluntary arrangement with the Taliban regime. It is natural that being executed or punished harshly for this offense and little more would be anathema to the average American soldier, who is unusually willing to look sympathetically on a man “fighting for his country” or, in this case, a sincerely acknowledged cause. The rhetoric of critics who predicted summary convictions in kangaroo courts should be revisited too, as Hamdan’s sentence was only 5 and half years.

The military’s light punishment of Hamdan has undermined the strategic purpose of the military tribunals. If that strategic purpose of swift and harsh punishment for mere membership in al Qaeda is truly worth pursuing (and I think it is), the administration should not allow misplaced sympathies based on the prejudices of professional soldiers to get in its way. For starters, sentencing should be made more regular and put in the hands of judges restricted by some reasonable guidelines or statutory minimums. As it stands, the worst of both worlds has been achieved by the administration’s military tribunal process: the light punishments of a civilian justice system coupled with unorthodox procedural protections that have drawn sustained criticism from all over the world.

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Blackwater, like any group of armed professionals in a chaotic environment, will find that some of its operators make mistakes. Under stress, they might be too quick on the trigger, misidentify the target, or otherwise create problems for themselves and the mission in Iraq. This is inevitable and likely occurred in the recent incident in Baghdad where 17 civilians were gunned down. The fact none of their protectees have died in Iraq is admirable, but this does not necessarily show that Blackwater’s personnel are furthering the mission goals from a strategic perspective. If the goal is to secure Iraq for the Iraqis so that they rally to the government so we can then leave, all of the people that are killed or aggrieved in the course of security operations create more work for the US government and the uniformed military.

But Blackwater’s very existence, even if its men performed their work with exquisite sensitivity, is not good news. Private contractors providing services that were once the responsibility of the uniformed military–most dramatically providing security for proconsul Paul Bremer and various US Army Generals–is a sign that our military is too small and inflexible to deal with the mission in Iraq and the war on terror more broadly. The shift from the uniformed military to contractors is part of a broader shift of power away from the nation-state to transnational entities–things like the WTO and multinational corporations–and a parallel devolution of power to subnational groupings like the tribe, the family, and the private individual.

Blackwater’s ususal mission in Iraq is a prosaic one: guarding VIPs in a nation that is in the midst of a very violent insurgency. But their presence shows two very bad things. One, it shows that the environment in Iraq, even in its capital city, remains too dangerous for movement by Iraqi and American officials in all but the most well-armed caravans, replete with armored cars, automatic weapons, and platoon-size teams of guards. Second, it shows that this capability is not available to the government in house. (more…)

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