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AG Mukasey on How to Handle Detainees:

Today's WSJ has an op-ed by U.S. Attorney General Michael Mukasey that addresses similar issues to the speech he was delivering last night at the Federalist Society's Annual Lawyers' Convention before he was incapacitated. Among other things, he called upon Congress to enact new legislation concerning the treatment and trial of detainees in accordance with the following principles:

First, Congress must make clear that release from the Guantanamo Bay military base does not mean that a detainee is entitled to enter the United States. Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him. He should not be permitted to jump the immigration line and enter this country.

Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review. . . .

Third, Congress should establish sensible and uniform procedures that will eliminate the risk of duplicative efforts and inconsistent rulings, and strike a reasonable balance between the detainees' right to a hearing and our national security needs. Such practical rules must assure that court proceedings do not interfere with the mission of our armed forces.

Of note, it appears that AG Mukasey is doing better, as he was released from the hospital earlier today. Like Orin, I wish Mukasey a full and speedy recovery.

Oren:

Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review. . . .

As I understand, that is happening even without the assistance of Congress. All of the current habeas proceedings, and much of the trial of Ramzi Yousef over which Mukasey presided, are in camera already.

In a purely practical sense, what more can be done in this respect?
11.21.2008 2:09pm
Houston Lawyer:
It would be vastly preferable to have rules in place to govern these proceedings consistently. Right now, we will have each individual judge making up his own rules and standards. After about 20 years of this process, it could begin to produce some consistency and logic.
11.21.2008 2:24pm
Litigator-London:
Oren: What the Administration is now pushing in extremis is set out in this paper by Professor Amos Guira Military Commissions and National Security Courts after Guantanamo.

The key proposal is:-

"In those cases where the prosecutor determines that the available evidence that would be admissible under the rules of evidence in traditional criminal law courts is insufficient for conviction, he may ask the court to admit classified evidence. The presiding judge would view the evidence in camera and come to one of two conclusions. First, the judge can find that the evidence is relevant and should be considered, and that the government has demonstrated a sufficient danger to sources to justify keeping the evidence classified and withholding it from review by the defendant and his lawyer.

In such cases, the judge would permit the prosecutor to present the evidence to the court without the defendant being present. The judge would then act as both judge and defense attorney, questioning the evidence as would be done during cross-examination."


In other words neither the defendant nor his counsel get to see the intelligence case against the defendant.

Perhaps the Professor's proposal originates in his many years' service as a JAG for the Israel Defence Force where, perhaps, such a procedure is held to pass muster as justice.

While the UK has a system of special advocates (security cleared) for civil restraint orders which do not involve imprisonment, but come pretty close to house arrest, this is being pushed as an appropriate procedure in a criminal trial resulting in conviction and sentence.

Further words fail me.
11.21.2008 2:34pm
Soronel Haetir (mail):
I don't know that the corts would accept #1 even if were passed as law, at least in cases where we also refuse to return to the home country and no other is willing to accept.

And even with legislation, #3 is only going to come about with time, unless Congress has suddenly become far more adept at crafting law than is their wont.
11.21.2008 2:57pm
Oren:
LL, as I understand, that's pretty much how it works right now:
A weeklong hearing for the Algerians, in which all of the evidence was heard in proceedings that were closed to the public, was the first in which the Justice Department was required to present its full justification for holding specific detainees since the Supreme Court ruling.
11.21.2008 3:00pm
Litigator-London:
Oren: Not so.

In the Bomediene hearing the Court was closed to the public but Counsel had appropriate security clearances and saw everything that the Court considered and were able to address the Court on it.

At the last minute the DoJ put in under seal a bundle of papers which had not been disclosed to the detainees' counsel and which the DoJ arqued were too sensitive even for security cleared counsel. They asked Judge Leon to consider these only if he were otherwise minded to release but it not yet clear whether he felt able to lok at papers which hand not been disclosed even in redacted from. That may or many not become clear when the unclssified transcript of the hearing comes out.

The key proposal the Administration want is for detainee counsel not to see the classified papers and for the Judge to step outside a judicial role and act as Counsel for the detainee - presumably without instructions.
11.21.2008 3:12pm
Dilan Esper (mail) (www):
Second, habeas corpus proceedings must protect the integrity of classified information and prevent disclosing that information to our enemies. Simply put, Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review. . . . As I understand, that is happening even without the assistance of Congress. All of the current habeas proceedings, and much of the trial of Ramzi Yousef over which Mukasey presided, are in camera already.

When an administration official SAYS "protect the integrity of classified information", he MEANS "protect the administration and its officials from having to admit torture in public". What he's afraid of is that a court will, quite reasonably, hold that violations of the Torture Convention can't be kept secret.
11.21.2008 3:12pm
SG:
Further words fail me.

And how much due process did your countrymen granted to the residents of Dresden before you firebombed them?

These people are not citizens being tried as criminal defendants. They are foreign nationals captured under a legally declared war and held for reasons of national security. They deserve some degree of due process, but it's not at all clear they deserve the level granted to a citizen being tried under criminal law. That they should be granted such due process is a position that can be advanced, but your sanctimony does not make a compelling argument for it.
11.21.2008 3:14pm
Cornellian (mail):
Isn't withholding exculpatory evidence on national security grounds a Confrontation Clause issue, at least in the case of a U.S. citizen defendant?
11.21.2008 3:23pm
Litigator-London:
Sorry about typos above. Look at the WSJ quote:-

"Congress should devise rules that allow the government to present the most highly classified information to the courts for their sole review

"Sole" - i.e. only the government and the court gets to see the evidence.

When you have evidence used to convict someone which neither he nor his counsel may see, you are in a police state.

I would hope the President-elect is too good a lawyer to stand for anything like that in criminal cases, although if internment were to be made lawful some similar procedure to the special advocate model might have to worked out.

As I said on an earlier thread, Judge Mukasey is knoen to be an honourable and honest man and a dedicated public servant. That it why I suggested that to put forward such dangerous nonsense as a serious proposition might have suck in his throat and provoked the regrettable incident which caused him to be hospitalised.
11.21.2008 3:23pm
Sarcastro (www):
Looks like we don't need any proof about national security requiring detention of non-citizens because this is just like when we firebombed a bunch of Germans back in the day.

SG's comparison of the current domestic shenanigans to World War II may seem a bit of a stretch, but one must remember Dresden was pretty damn awesome.

And, of course, everything can be reduced to a World War II metaphor of some sort (Sarcastro's Rule), so this checks out.
11.21.2008 3:23pm
Crust (mail):
SG:
They are foreign nationals captured under a legally declared war and held for reasons of national security.
Huh? There has been no declaration of war. The initial justification for holding these men was that they were, as Bush put it in his 2002 State of the Union address, "terrorists who were plotting to bomb our embassy". Later that explanation became inoperative and it was said they were being held because they allegedly intended to travel to Afghanistan and fight against US forces there.
11.21.2008 3:25pm
MarkField (mail):

And how much due process did your countrymen granted to the residents of Dresden before you firebombed them?


This must be the single worst attempt at tu quoqueism I've ever seen.
11.21.2008 3:27pm
Crust (mail):
Let me join others in wishing AG Mukasey a continued full and speedy recovery.
11.21.2008 3:27pm
Anderson (mail):
And how much due process did your countrymen granted to the residents of Dresden before you firebombed them?

"I am a dumbass" would've saved a little typing there.
11.21.2008 3:27pm
MarkField (mail):
Damn, Sarcastro beat me to it and, per usual, did it better.

I'll try again:


They are foreign nationals captured under a legally declared war and held for reasons of national security.


Whether they're held for reasons of national security is precisely what the government needs to show. You're assuming your conclusion.
11.21.2008 3:30pm
MisterBigTop:
"Further words fail me."

Isn't that a shame.
11.21.2008 3:34pm
Anderson (mail):
Also, for the record, the U.S. shared the honors with the UK in burning down Dresden. Not just "your countrymen."
11.21.2008 3:34pm
Litigator-London:
SG: I belive the firebombing of Dresden to have been a war crime. Likewise the Bombing of Baghdad.

But I and many others would take issue with your assertion:

"They are foreign nationals captured under a legally declared war"

1. The USA has not declared war on anyone since WW2 and has not done so under the present Administration.

2. The AUMF is of doubtful constitutionality but allowing it to be presumptively constitutional only resolves the issue as a matter of US domestic law. Both the invasion of Afghanistan and of Iraq were almost certainly unlawful as a matter of international law - see The Rt Hon Lord Bingham of Cornhill KG delivered the Institute's Annual Grotius Lecture on 'The Rule of Law in the International Order'.

3. Both of those wars are in any event over and there are now sovereign governments in both states recognised by the USA.

4. The expression "war on terrorism" is an oxymoron. There can only be a war against a sovereign state.
11.21.2008 3:36pm
Anderson (mail):
As an aside, the Wiki article on Dresden's bombing has this lovely quote from Arthur Harris:

I do not personally regard the whole of the remaining cities of Germany as worth the bones of one British Grenadier.

Cf. proportionality.

Having lost the war, the Germans and Japanese were obliged to admit that the gratuitous killing of civilians en masse was a war crime. Having won the war, the British and Americans were under no such obligation ... with the result that we continue to think that war crimes are what the other guy commits.

That is one of the reasons to prosecute anyone who conspired to violate the War Crimes Act, the Torture Act, and similar laws: to prevent ourselves from believing that we don't do such things, or rather, that when we do them, they're not crimes.
11.21.2008 3:43pm
SG:
Whether they're held for reasons of national security is precisely what the government needs to show. You're assuming your conclusion.

No, I'm simply disputing the presumption that criminal due process is required. I have not assumed they are national security threats. I haven't even assumed that they're not entitled to criminal due process. I'm only saying that you have to actually make an argument that it is required, not simply point out that they're receiving a different level of due process.

These people were taken into custody not under the government's police powers but under its military powers by an authorization from Congress that said


That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


If you want Congress to repeal that authorization, then make the argument. I'm inclined to support you in that effort. But military force is still authorized and it's a bad precedent to blur the lines between civilian and military procedures. They're distinct for a reason.
11.21.2008 3:51pm
Litigator-London:
Anderson:

Well said.

I would add that Dwight D. Eisehower was quite clear about the illegality of the Anglo/French/Israeli Suez adventure.

Rather than do anything about that, Eden was allowed to resign and given a peerage. There will one day be a UK enquiry into the the Iraq War, the government promised that to Parliament. Now they are trying to stop it beginning until all UK troops are out of Iraq - hoping that this will enable Blair and Others to be long out of office and hopefully avoid any consequences.
11.21.2008 3:53pm
Anderson (mail):
That the President is authorized to use all necessary and appropriate force

That looks like limiting language to me, SG. What does it look like to you?

Is holding people for 7 years on no reasonable basis "necessary and appropriate"?
11.21.2008 4:00pm
MarkField (mail):

These people were taken into custody not under the government's police powers but under its military powers by an authorization from Congress that said


What charge made against them indicates that these men were persons who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"?

Under what conception of due process would you consider it acceptable for you yourself to be condemned on the basis of evidence neither you nor your lawyer were allowed to see or even know about?
11.21.2008 4:12pm
SG:
Is holding people for 7 years on no reasonable basis "necessary and appropriate"?

Now who's assuming the conclusion?

Since we have released people from custody, there clearly is some amount of process being granted these detainees. And given that some have taken up arms after release, a case could be made that our current process is to deferential of detainee rights.

But I'm not making that argument. In fact, I think that because a non-negligible number of people are seriously considering applying civilian notions of due process to military detainees, we don't have the national will to be conducting a war. I'd support rescinding the AUMF, granting full civilian due process to the detainees and simply releasing any that we aren't prepared to try in open court.

I'd much prefer that than trying to wage lawfare. Al-Qaeda has been seriously weakened. But I frankly don't understand the hand-wringing over detainee rights - that's what happens in a war. I'd argue that war legalizes injustice. I'm far more worried that waging lawfare will mean that a watered down wartime notion of due process gets applied to citizens. Look at how the patriot act has been repurposed to fight drug crimes? War and peace are distinct categories; let's please keep them that way.
11.21.2008 4:15pm
ParatrooperJJ:
I say again, declare them Title I combatants and then shoot them as spies captured out of uniform Solves your hole problem and is explicitly allowed under the Geneva Convention.
11.21.2008 4:21pm
SG:
Under what conception of due process would you consider it acceptable for you yourself to be condemned on the basis of evidence neither you nor your lawyer were allowed to see or even know about?

What due process does somebody who gets a hellfire fired on their home on the Pakistan border receive? Do their lawyers get to challenge the intelligence used to justify the launch?

That's what war is. Bad things happen to people. Sometimes those people are innocent. That's why we don't want to go to war. War is cruelty, it can't be refined.

But since you ask the question, this is exactly the reason that I don't like the path you're determined to go down. There are legitimate national security reasons not to expose our intelligence methods in open court. At some level, national security concerns will be upheld, even in civilian court. If you insist on pushing these detainees down that road, civilian courts are going to relax due process rights, and I'm betting that that precedent will be applied to ordinary criminal defendants.

I also think this path is going to result in more hellfire missile launches. "Collateral damage" results in less of an outcry. Your preferred path will cost more innocent lives.

I'm not claiming that justice is being served by the process granted these detainees. I am arguing that it is, on net, a lesser injustice than what you're proposing.
11.21.2008 4:26pm
A. Zarkov (mail):
Litigator-London:

"1. The USA has not declared war on anyone since WW2 and has not done so under the present Administration."


You seen to think that Congress must utter the magic words, "We declare war.." for a legal state of war to exist. I submit that's not true. If Congress approves a military action, and specifically funds it, it's a war. Thus Korea, Vietnam, the first Gulf War, and the Iraq war are real wars. Protracted actions under the authority of just the president is another matter.
11.21.2008 4:41pm
Joey32 (mail):
How fascinating. And what were Janet Reno's views on counter-terrorism law enforcement strategy?

Oh, that's right, nobody gave a hoot because she wasn't Bush's choice for AG.

He lost, and in part because of his policy on these issues. it doesn't matter what he thinks - get used to it.
11.21.2008 4:41pm
Anderson (mail):
on no reasonable basis

That's not my conclusion; it's the conclusion of a United States District Judge who, unlike you or me, has actually looked at the evidence.
11.21.2008 4:43pm
MarkField (mail):

Now who's assuming the conclusion?


Judge Leon already found that there was no reasonable basis to hold these men. That's not assuming the conclusion, that is the actual finding in the case.


In fact, I think that because a non-negligible number of people are seriously considering applying civilian notions of due process to military detainees, we don't have the national will to be conducting a war.


I don't believe anyone here is arguing for the "full panoply" of due process rights. What we are ALL insisting on is at least the bare minimum of due process. That's why I asked you what standard you'd apply. Instead of responding, you tried misdirection by rhetorical question:

"What due process does somebody who gets a hellfire fired on their home on the Pakistan border receive? Do their lawyers get to challenge the intelligence used to justify the launch?"

That's not the issue here. These people have been held away from any battlefield for 7 years. In fact, at no point in their lives were they within several thousand miles of a battlefield relevant to Al Qaeda or the Taliban. Nobody's talking about battle conditions, which is why your responses seem so irrelevant.


If you insist on pushing these detainees down that road, civilian courts are going to relax due process rights, and I'm betting that that precedent will be applied to ordinary criminal defendants.


If your view is that I should stop trying to do what's right on the hypothetical possibility that someone in the future might do something wrong in response, I can't share that view.
11.21.2008 4:44pm
Andrew J. Lazarus (mail):

That's what war is. Bad things happen to people. Sometimes those people are innocent. That's why we don't want to go to war. War is cruelty, it can't be refined.

s /war/terrorism/g

The Bush/Cheney operation has been one long campaign to excuse ourselves from our own standards, based on a version of American Exceptionalism that is merely Antinomian.
11.21.2008 4:46pm
MarkField (mail):
Does anyone else find it less than credible that the AG is proposing these new laws now, 7 years into the policy, after the courts have repeatedly rejected the Administration's legal arguments and claimed evidence?
11.21.2008 4:46pm
Oren:

I say again, declare them Title I combatants and then shoot them as spies captured out of uniform Solves your hole problem and is explicitly allowed under the Geneva Convention. (citation needed)
11.21.2008 4:46pm
Oren:

There are legitimate national security reasons not to expose our intelligence methods in open court.

Straw man. We want review by defense counsel with appropriate clearance (of whatever strictness you want to apply).
11.21.2008 4:56pm
Oren:

You seen to think that Congress must utter the magic words, "We declare war.." for a legal state of war to exist. I submit that's not true. If Congress approves a military action, and specifically funds it, it's a war. Thus Korea, Vietnam, the first Gulf War, and the Iraq war are real wars. Protracted actions under the authority of just the president is another matter.

Zarkov is right, we are at war with Al Qaeda (although, I think this is a profound mistake because it dignifies them to a degree not warranted by their actual abilities).

That said, detention on the battlefield classification ought to be reserved those enemy combatants actually captured in battle or in contested territory. Bosnia is not a battlefield in the war on AQ unless you can prove some constructive control of that territory.
11.21.2008 5:10pm
Litigator-London:
A. Zarkov:

One has to make a distinction these days. The Korean "War" was actually a UN Security Council authorised intervention purusant to Chapter VII of the UN Charter. So was the Gulf "War". The Vietnam "War" was actually the USA coming to the aid of an ally being attacked - permitted under the UN Charter.

In relation to Afghanistan, the offer of Chapter VII authority was offered to the US which decided not to accept it (telling in relation to subsequent events) and UNPROFOR is in Afghanistan pursuant to a UN Mandate.

Thus the exceptions are Afghanistan and Iraq - which were undeclared wars in violation of the UN Charter. But both are now over and there a now UN Mandates - the Iraq mandate expiring on 31 December 2008.

There is no war against Al Qaida. There cannot be because it is not a state.

Thus, as an example, the actions of US personnel in taking the Defendants into custody in breach of the terms of an express order of the Bosnian Supreme Court and taking them to Quantanamo (via Germany it is thought) was purely and simply state sponsored kidnapping, a violation of Bosnian and probably German sovereignty, the subject of criminal proceedings open in both those countries and there might well be penal consequences for any of those who might be identified as responsible should they come within the jurisdiction of the place(s) where criminal offences were committed or of courts which would enforce a European Arrest Warrant or take ius cogens jurisdiction.

Thus one sees consequences from the unravelling of the Bush administration's "legal black hole" strategy.
11.21.2008 5:45pm
AntonK (mail):
Mukasy decapitates the idiotic "theses" emanating from the Liberal/Left here:

Earlier this year, the head of a legal organization that prides itself on what it calls its "nonpartisan approach to the law" gave a speech condemning what he called "the oppressive, relentless, and lawless attack by our own government on the rule of law and our liberty." According to this person, we live now in a--"time of repression" where the "word 'Patriot' names a statute that stifles liberty," and where we face "assaults by our government on constitutional rights, the Separation of Powers, and the Geneva Conventions." You can practically hear the rumble of tanks in the background.

It is interesting--and telling--that even in the published, written version of these remarks by a lawyer, the references and footnotes are not to statutory texts, the Constitution, treaties, or laws. Instead, the author relied on such authorities as the New York Times, the Washington Post, and the New York Review of Books. This style of criticism can be called many things--provocative perhaps, or evidence that the author could be regarded by some as well-read--but what it cannot be called is a reasoned legal critique.

Also completely absent from these remarks, and from many remarks like it, is any fair appraisal of the legal issues actually involved or an acknowledgement of the difficulty or novelty of the legal questions confronted by the administration lawyers who made these decisions.

Indeed!
11.21.2008 5:55pm
A. Zarkov (mail):
"There is no war against Al Qaida. There cannot be because it is not a state."

The US went to war against the Barbary Pirates. Formally the Tripolitan Wars involved the US against the Barbary "States," which were not nation-states, or even unified political entities.
11.21.2008 6:04pm
SG:
I don't believe anyone here is arguing for the "full panoply" of due process rights. What we are ALL insisting on is at least the bare minimum of due process. That's why I asked you what standard you'd apply.

The detainees are entitled to whatever standard Congress chooses to set, as Congress (and not the judiciary) "make rules concerning captures on land and water". And, aso f the Detainee Treatment Act, Congress did establish a process. Note that the process they are due does not include a habeas hearing before an Article III court.

If your view is that I should stop trying to do what's right on the hypothetical possibility that someone in the future might do something wrong in response, I can't share that view.

No, my view is that you should respect the Constitution and the democratic process that overwhelming (518-1) granted war authority to the president and has established standards for detainee treatment, instead of trying to undermine those legitimate exercise of constitutional authority via an end-run through the courts.

I would hope that respect for the rule of law would be sufficient. I only brought up the downsides of your position to point out the practical consequences. But I guess that all plays second fiddle to your self-regard.

You know, in January the Democrats will control the Congress and the White House. Why not use the Democratic process to establish a process more to your liking? Assuming any new process is more in favor of the detainees, there should be no ex-post-facto issues raised. And by using the legislative process (the way the Constitution intends) instead of the judicial process, you avoid inadvertently creating bad precedent.

That's the way it's supposed to work. What's wrong with that approach?
11.21.2008 6:27pm
SG:
we are at war with Al Qaeda (although, I think this is a profound mistake because it dignifies them to a degree not warranted by their actual abilities).

The problem is that the only two tools (currently) in the toolbox are war and criminal law. The problem with using criminal law is that it's intended to be reactive, not proactive.

The problem with being proactive is that, by necessity, it must lower the bar on civil rights protections. You have to gain intelligence which entails surveillance. You will take people into custody who haven't (yet) done anything wrong. As a practical matter, declaring war legals injustice.

The problem with being reactive is we had 3000 people dead, and no avenue to criminally punish the guilty because they were among the 3000.

War is a blunt too, but it was the tool we the people said we wanted to use. Almost 8 years have passed since 9/11 and the world looks very different now. If you think we should put that tool away, then petition the (Democratically controlled) Congress to rescind the wartime authority against Al Qaeda.
11.21.2008 6:39pm
pintler:

As an aside, the Wiki article on Dresden's bombing has this lovely quote from Arthur Harris:

I do not personally regard the whole of the remaining cities of Germany as worth the bones of one British Grenadier.

Cf. proportionality.


In your view, how much violence would be a proportional response to the holocaust?
11.21.2008 6:39pm
Litigator-London:
A Zarkov:

Wrong again. The "Barbary States" were technically part of the Ottoman Empire. It was the Pacha of Tripoli who purported to declare war against the United States - technically, I think, a privilege reserved to the Ottoman Sultans, and the USA sent what used to be called a "punitive expedition" - see this account on the Global Security Site.

Punitive expeditions"were not uncommon in those days - you may recall another such which became known as the Don Pacifico Affair which got Lord Palmerston into very hot water with Queen Victoria.

Such expeditions which violate the sovereignty of another state are now covered by the UN Charter and are permissible only with UNSC Sabction under Chap VII.
11.21.2008 6:49pm
MarkField (mail):

The detainees are entitled to whatever standard Congress chooses to set, as Congress (and not the judiciary) "make rules concerning captures on land and water". And, aso f the Detainee Treatment Act, Congress did establish a process. Note that the process they are due does not include a habeas hearing before an Article III court.


No, the detainees are entitled to a hearing that is fundamentally fair. That's what "due process" means: “For all its consequence, ‘due process’ has never been, and perhaps can never be, precisely defined. ... Rather, the phrase expresses the requirement of ‘fundamental fairness,’ a requirement whose meaning can be as opaque as its importance is lofty.” Lassiter v. Department of Social Services, 452 U. S. 18 (1981). This isn't a game of "how low can Congress go?", this is an obligation of fundamental justice. We detained these people. It's not like they initiated the proceedings. If we want to impose government's authority on them, we have to do so in a way that's fundamentally fair.

I note for the record that you're still dodging my question about whether you would consider fair a proceeding in which you couldn't see the evidence.


No, my view is that you should respect the Constitution and the democratic process that overwhelming (518-1) granted war authority to the president and has established standards for detainee treatment, instead of trying to undermine those legitimate exercise of constitutional authority via an end-run through the courts.


Going to the courts is not a dodge, it's the way the system works to enforce fundamental rights. That's respecting the Constitution, not disrespecting it. Disrespecting it would be violating it regardless of one's sworn duty to uphold it by doing such things as kidnapping innocent people; holding them without charges for years; and torturing them.

I'll also note for the record that you failed to answer my question about the application of the AUMF to these particular detainees. That's particularly notable given that you're arguing in a case where the trial judge has already found that the government has no reasonable basis to hold them.
11.21.2008 7:10pm
SG:
I note for the record that you're still dodging my question about whether you would consider fair a proceeding in which you couldn't see the evidence.

I'm not evading; I think your question is irrelevant, but for the record, no, I wouldn't consider such a proceeding to be fair. I don't consider war to be fair. I recognize that, in a war, lots of unfair things will happen. In a war, we want to be unfair. Our military doesn't have to get a warrant, or announce their presence prior to engaging the enemy. We understand and accept that innocent people will be killed and their property destroyed provided the target is sufficiently important. In peacetime, we want to check the states awesome power, in wartime we want to unleash that power.

The issue is not "is this process fair", it's "is this the best process for achieving our war goals". Now, given the nature of the war and our culture, that means the process must have a degree of fairness. Summary executions don't meet our internal standard, nor would they be good public relations. We don't wish to make enemies of all the Muslim world.

I think there's a good argument to be made that Gitmo, the DTA and the like are not the best process for achieving our war goals. I also think there's a good argument to be made that (especially at this point) war isn't appropriate against Al Qaeda. Furthermore, I'm not arguing in favor of this particular process. I'm arguing that, as long as we are still at war, notions of "fairness" are not a valid way to judge the issue.

And it's precisely because I don't think it's fair that I don't want this being introduced to our criminal courts. They must be concerned with fairness. Introducing fairness will either cripple the country's ability to wage war, erode our civilian notions of fairness, or (most likely) both. The people, through elections, are the check on how the nation conducts war, not the judiciary.

And again, the political landscape has shifted greatly. Use the political process the way it was meant to be used. Let Congress establish new rules regarding the detainees, or rescind the AUMF. Pres. Obama can unilaterally grant a more "fair" process to the detainees that the DTA authorizes (it's a floor, not a ceiling).
11.21.2008 8:09pm
Sarcastro (www):
SG has the plan. This is war, see, so the ends justify the means. There is no Unconstitutional here, since the Constitution clearly doesn't apply!

You hippy peaceniks probably love the Constitution so much because it is now as irrelevant as you are in this time of War.

I see no way this idea could go out of control and lead us to a permawar state, with every government excess being excused.
11.21.2008 8:13pm
Benjamin Davis (mail):
I posted as the second message here the long post I did last night on the WSJ forum in response to Attorney General Mukasey's awful op-ed. To my surprise, it is no longer here. What's up with that Volokh Conspiracy dudes? Please explain the reason for your censorship. It was here this morning when I looked. I am writing an article about hidden hierarchies in these kinds of spaces.
Best,
Ben
11.21.2008 8:48pm
Benjamin Davis (mail):
I'll post it again and see how long it stays here. I am talking about hidden hierarchies at the American Association of Law Schools annual meeting in January.

It starts below. Best, Ben

I posted this on the WSJ forum last night. After I learned of Mukasey's medical moment. I posted this morning a note wishing him to get better and that my thoughts are with him and his family. Ben

With this op-ed, Attorney General Mukasey wants to make us believe that 5 out of 6 persons who were ordered released by Judge Leon yesterday were released because having the process in an Article III court meant that "the good stuff" could not be provided. Judge Leon applied a very low preponderance of evidence standard and a definition of enemy combatant that does not comport with the statuses that are our requirements under the Geneva Conventions. Even with that approach, Judge Leon found that the only piece of classified evidence the government saw itself willing to submit to the court - the uncorroborated statements of one person about which nothing is known or provided about the nature and manner of the process of getting that statement - was just not enough.

Attorney General Mukasey wants Congress to now change the rules to permit evidence that did not meet current standards to be admitted in some kind of even weaker process. He bandies about the notion that dangerous terrorists are going to be released into the United States. This canard is more of the fear mongering we have heard for so many years - usually to gin up the drafting of some law that assures that persons captured somewhere in the world can be 1) held incommunicado, 2) tortured and 3) kept away from legal process of US court martial or Article III courts for fear that such courts might differ with the Administration view as to whether these persons are really what the Administration says they are.

I would remind Attorney General Mukasey of the statement of former Attorney General and then Justice Robert H. Jackson in 1945 that if we are going to have judicial process in matters like this - then we need to provide for a process in which a person can prove they are innocent and be freed. If we design a process that gives the kind of conviction/detention rates that people like Attorney General Mukasey want, then we are using judicial forms without any interest in judicial norms. We have already gone down that path with the processes already in place down at Guantanamo. Under those processes these six persons were held for seven years. When finally put before an independent Article III court, a court which appeared perfectly capable to address issues of classified and unclassified materials in a manner that protected sources and methods but a court that would not just roll over for the prosecution - FIVE OUT OF SIX MEN who had been held FOR SEVEN YEARS were ordered released because of the paucity of evidence.

Attorney General Mukasey's plea for judicial forms without judicial norms should leave all Americans cold. Not only because what he pleads for is repugnant. What he pleads for comes from the shameful Korematsu line of American paranoid thinking that finds it ok to put a "suspect class" in a dark place on the flimsiest of bases. It comes from a path so aggressively pushed by this Administration to ignore international law obligations of the United States in the Geneva Conventions as expressed in the Uniform Code of Military Justice, the International Covenant on Civil and Political Rights, and the Convention Against Torture and cruel inhuman and degrading treatment. It comes from a path that has given us torture ordered by the President.

We have seen that kind of paranoid thinking over and over the past years. Whether in the Lao Gai in China, the disappeared in Argentina, in Chile, in excesses in Britain during the battles with the IRA, always there is this pressure to put the ordinary citizen in such fear that all we can think to do is to allow the Administration to grab the "suspect class."

I say that we need to strenuously reject this kind of fear mongering. This is the kind of fear mongering that led to decisions like that in a state court in 1950 in Florida in Chambers v/ Florida that Judge Robertson reminded us of this summer in the Hamdan case. It is that long line of horrendous fear based decisions accompanied by taking the law into our own hands that is a terribly sad stream in American history. Scottsboro boys should strike a painful memory in your heads. Having just organized a conference on 1808 for the bicentennial of the federal prohibition on importing slaves, I have been made intimately aware how misguided and evil our country can permit itself to become in the name of commerce, fear, or some other reason. I also am aware of the efforts of decent Americans to combat that horror in ourselves to ensure that the rule of law applies, that no one is above the law, and that we perfect our union in protecting it.

Attorney General Mukasey should not be permitted to try, once again, to have the Administration be above the United States. The United States has solemnly accepted international law obligations that bind us all. Star chamber processes, tribunal d'exception, secret incommunicado detentions, and kangaroo processes are inimical to human rights and human dignity obligations that bind the United States - each of us.

Yes there are people who hate us. We know that everyday. But, in putting in processes that dehumanize those that we suspect, we dehumanize ourselves into the kind of uncivilized barbarians that we profess we do not want to be.

A pox on you Attorney General Mukasey. For those of us who thought that you would provide some meaningful relief on torture, you have shown yourself unwilling. For those of us who thought that you would be a voice of reason, you appear to have been grabbed by the same kind of madness that we saw in apoplectic pronouncements of Attorney Generals Ashcroft and Gonzales before you when US courts said "not good enough under law."

As a citizen, I cannot allow the essence of what America is be destroyed by an Administration that appears to be without appreciation for precisely what makes us great. On the contrary, what we need to do and do now is, rather than change the law, start criminal prosecution of those high-level civilians and military generals that have put in place the torture that is the hidden secret about the quality of the intelligence we have.

That torture policy deformed the admissibility of this evidence, to the eternal detriment of the United States and meaningful process. We can not now deform our processes simply to accomodate the fruits of that heinous policy.

Rather, we should keep in mind the low-level soldiers who have been court-martialed for doing the heinous bidding of the high-level civilians and military generals. Those kids, from decent American families, betrayed their oath in doing the bidding of their leaders. They are each serving life sentences as a consequence of those convictions.

It is time for the high-level civilians and general to be prosecuted so that the law applies to the high and mighty equally as to those who are at the lowest rung of our society. With that, we will begin the cleansing of our institutions at the same time as we put our policy on national security back in conformity with our American values.

I have written a 156 page law review article coming out anyday now at St. John's Journal of Legal Commentary which goes into depth on our need to do these criminal prosecutions. I name names of the persons of interest - some of whom will be defendants and all of whom are witnesses to the odious conduct that precisely causes us to have a problem of admissibility in ordinary courts for our tortured evidence.

Enough of this blowharding by these sbires. Hasten the day they are out for surely the damage they have done to the United States will be with us for decades to come.

Best,

Benjamin G. Davis
11.21.2008 8:57pm
AntonK (mail):
Ben, you're not well. Get back on the meds my friend, and lay off the Kool-Aid.
11.21.2008 9:32pm
Oren:
Ben, perhaps because paragraphs of hyperbolic invective with no substantive policy arguments are not really constructive in any way.
11.21.2008 9:43pm
John Moore (www):
Our justice system has evolved over centuries to provide a "best we can do" approach to dealing with human frailties, including bias and over-proceduralism and all sorts of other things.

To apply a system designed and evolved for dealing with domestic crimes to such a foreign situation is to try to put a square peg into a round hole.

It should be fairly clear that, as some posters have talked around, we do not have legal precedent or applicable law for the kind of situation we now confront. Shoe-horning this war into one or another category, and likewise mis-categorizing the prisoners and mis-assigning treaties and laws leads to dangerous results.

As one commenter said, wars are nasty and innocent people get harmed. What makes the debate about the detainees so insane is the insistence on extreme fairness to them, at a cost of national security, while allowing dangerous and deadly actions that kill civilians to have much less oversight.

Doesn't anyone find it absurd that we can fire a missile into a civilian home in a country we are not at war with, but we cannot detain a dangerous foreign prisoner, captured and held in a foreign land, without bringing into play a whole mess of legal protections? But most of us understand that we cannot hobble the military with pre-emptive lawyering and post-facto prosecutions.

The statues of Justice include a balance. We should apply those balances here.

...

One thing this non-lawyer finds amazing about a law blog is the sometimes religious worship of procedure. While lawyers are usually very logical, some get so enamored of the process that they fail to apply reality to their use of it.
11.21.2008 9:46pm
Soronel Haetir (mail):
Ben D,

Your argument would be made a lot stronger if you would drop the Abu Grahib abuses were condoned line. You keep pushing it but have yet to provide any evidence that it was anything more than has been claimed.

Stick to your stronger arguments and you might get somewhere.
11.21.2008 9:58pm
JKL:
Speaking pragmatically: what the heck do we do with these guys if no other country will take them? Release them into LA or Oklahoma City? Or just send them to the other side of the fence and make them Fidel Castro's problem?

Also, does anyone know anything about the recidivist rate among the detainees who've already been released?
11.21.2008 10:13pm
Soronel Haetir (mail):
John Moore ,

We alsorun into problems because there are at least two different sets of detainees, those whom the gov't merely wishes to hold and those whom the gov't wishes to prosecute.Both sets also have problems because some were arrested, somecaptured in more classic battlefield conditions etc.

In each case the administrartion first tried to pull something together without involving the other branches and even after involving Congress didn't do a particularly good job. At some point enough time passes that such failure needs to be called out.

Compounding all of this is the fact that even those whom qualified for merely detained treatment were likely subjected to more than that.

The attempted black hole has failed so instead we're left with a pile of shit to clean up. Much of the current mess was both foreseeable and avoidable, but that's just the way the turd crumbles.
11.21.2008 10:13pm
MarkField (mail):

The issue is not "is this process fair", it's "is this the best process for achieving our war goals".


Sarcastro pointed out the fundamental flaw in this argument.

Your point might have some force if we were fighting a governmental entity (which is, as L-L says, the only proper "war"). In such a case, where the only goal is to overthrow the opposing government or make it sue for peace, brutal tactics might be justified on pragmatic grounds. Maybe; and even if that were the case, I'd argue to the contrary on pragmatic grounds anyway.

But that's not our situation. We're in a situation in which we're trying to bring to justice some criminals who murdered 3000 of our fellow citizens. More importantly, though, we're in a battle for the hearts and minds of those who might be receptive to the lies of those criminals, and who might add to our burden by joining them. One of our principal goals in this struggle has to be that of reducing the pool of enemies. And the way we begin to do this is by acting in a way that even the potential recruits have to admit is fair.

So the pragmatic argument you want to make fails on its own terms. I won't go into the more categorical moral arguments because I don't need to, but our conduct in this case clearly fails any imaginable test under such moral systems.


In a war, we want to be unfair.


Assuming all your assumptions, I agree. The problem is that as to these detainees, the war is over. They're prisoners and aren't fighting. Battlefield "rules" don't apply, much as you keep trying to sneak them in. They couldn't apply in any case, because these men were never on a battlefield.

Once we're talking about prisoners, a whole different concept of "fair" comes into play. I agree that we don't have to fight "fair" on a battlefield -- we can ambush the enemy, lie to him, whatever. But the rules change once we have someone in custody.

This principle is one our legal and political system has operated under for a very long time. It's not new; it's the standard.

Worse yet for your position, what's at issue in these hearings is whether these men were properly detained at all. That is, whether they are in fact dangerous to us at all. There must be a higher standard of fairness in such cases because the whole force of your argument disintegrates, even on its own terms, if the men are not our enemies at all. And what Judge Leon has held here is that the government lacks any reasonable basis to hold them.


Use the political process the way it was meant to be used.


What's important in these cases is that they NOT be politicized. Nobody should be used as a political football for domestic political goals. Yet that's what the Bush Administration has done. It kidnapped these men for no good reason. It used them and others to scare the American people and hoped thereby to gain political advantage. That's unconscionable, and it's precisely why pre-existing standards of fairness are so important to demand in this situation.
11.21.2008 10:29pm
Malvolio:
You know, for all the "We're living in a police-state!" / "We're a paradise of unicorns and cherubs" debate going on here, there only seem to be two serious proposals:

1. Secret evidence against a detainee can be reviewed by the judge, acting in the defendant's interests; and

2. Secret evidence against a detainee can be reviewed by security-cleared defense attorney.

Those two options seem very similar to me -- (2) appeals to me a bit more, but I could see it the other way -- but does anyone have a serious third proposal? Letting a probably-guilty terrorist suspect have access to highly classified material, of course, automatically designates a proposal as "non-serious".
11.21.2008 10:30pm
David Warner:
Dilan,

"When an administration official SAYS "protect the integrity of classified information", he MEANS "protect the administration and its officials from having to admit torture in public". What he's afraid of is that a court will, quite reasonably, hold that violations of the Torture Convention can't be kept secret."

That is indeed one possibility. You're free to contend that the obligation to consider other possibilities has been abused by the current administration. Ignoring that obligation, however, doesn't strike me as the most effective response, either to that abuse or those possibilities.

MarkField, Anderson, LL, et. al.,

As a libertarian, I certainly share some of your frustration with the Bush Administration, but I certainly hope that an Obama administration will produce more pragmatic approaches to the problem and arguments to defend them than the dogmatic ones you in unison voice currently offer.
11.21.2008 10:32pm
Benjamin Davis (mail):
Judges are not trained to act on behalf of a party. They are trained to have two adversaries present the case to them. This is the fundamental flaw with the "judge checking on behalf of defendant" approach that is suggested.

For others, Abu Ghraib was condoned and it is only a small part of what has been going on. See Torturing Democracy at www.torturingdemocracy.org. We are making progress.

Best,
Ben
11.21.2008 10:51pm
Litigator-London:
What we are looking at are the ashes of failed policy. Not, sad to say, just the failed policies of George W, Bush and his Administration but of the Reagan Administration too. Indeed its origins lie in the latter days of the Carter Administration.

Part 1 - Background

It had long been a part of fundamental Russian policy to expand its zone of influence southward and secure access to warm water ports. Russian expansionism and empire building in Central Asia began in 1734 and Imperial Russia's interest led to Russian absorption of the lands of the Caucasus, Georgia, Khirgiz, Turkmens, Khiva and Bukhara. Russian interest in Afghanistan was apparent by the late 1830s and led to what became known as "The Great Game", the struggle between the British and Russian empires for influence along the unsettled northern frontier of British India and in the entire region between Russia and India. Afghanistan lay directly in this contested area.

Thus it is hardly a surprise that the Soviet Union had a continuing interest in Afghanistan. Afghanistan in the 1970's remained, as it always had been, a feudal, tribal society with a very weak central government whose writ only ran in the territory of the tribal leaders if they were content for it to do so. It was one of the poorest nations in the world. The Afghan people had long history of resistance to outside influence and to invasions. Alexander the Great was possibley the last foreign leader to make any lasting impression.

In April 1978, a small leftist group of Soviet-trained Afghan officers seized control of the government and founded the Democratic Republic of Afghanistan. President Nur M. Taraki came to power with a programme designed to drag Afghanistan into the 20th Century with land reform and redistribution, education, a changed status for women - in effect the destruction of the feudal Afghanistan social structure. Needless to say, that upset the feudal lords and tribal leaders who well understood that they could only retain their own comparative wealth and power if they kept their people in a state of subjection and ignorance. Civil war broke out and the feudal and tribal leaders persuaded the local mullahs to declare the republican government apostate and call for "jihad".

It happens that the Afghanistan -Pakistan border ("the Durand Line") is very largely just a theoretical line on a map and on the Pakistan side are the Pakistan tribal areas where writ of the Pakistan central government does not run. The Madrassas in the Tribal Areas of Pakistan are important to this story because they provided much of the theological and doctrinal engine of the Mujahiddin where potential recruits could be brain-washed.

The history of the British Empire is above all the history of British India and the history of Pakistan is above all the history of the failure of Empire to create a single nation out of all the peoples of the warring states and principalities which came to be part of British India. Although Ghandi and his Congress Party as well as the British government and Earl Mountbatten of Burma, the last Viceroy of India, wished British India to become a single nation at independence, they ran into the implacable opposition of Jinnah and the Muslim League. The result was partition and the creation of Pakistan in 1947.

In the event, thus far Pakistan has often not had even a semblance of democracy as that expression is understood in the West. It would be more accurate to say that it has largely tottered on from military dictatorship to military dictatorship. Having become a state in 1947, on 7th October 1958 the then President, Iskander Mirza abrogated the Constitution and declared Martial Law, abrogating the 1956 Constitution. General Muhammad Ayub Khan, the then Commander-in-Chief of the armed forces, became the Chief Martial Law Administrator and within weeks he ousted President Mirza, declared himself President and promptly awarded himself the rank of Field Marshal. Martial law remained in force until a new constitution was promulgated in 1962. The Field Marshal shamelessly manipulated the 1965 elections to assure himself re-election as President.

When there was widespread disorder in 1969, General Agha Muhammad Yahya Khan ousted Ayub Khan, declared martial law and named himself as Chief Martial Law Administrator but, in contrast with his predecessor, promulgated an interim constitution and enabled Pakistan to have its first democratic elections in 1970, which however resulted in the secession of East Pakistan to form Bangladesh and a war with India. Zulfikar Ali Butto who had won the elections in West Pakistan became President and Chief Martial Law Administrator on 20th December 1971. After the National Assembly passed the 1973 Constitution, Butto became Prime Minister but on 5th July 1977 was ousted by General Muhammad Zia-ul-Haq in the by now familiar coup process. Two years later, former Premier Butto was hanged.

Zia-Ul-Haq was himself an Islamic militant, a disciple of Abul A‘la Maududi (1903-1979), the founder of one of the more extreme islamist movements in Pakistan.

The call for jihad was taken up in the FATA areas of Pakistan and aid and assistance started to arrive for the "Mujahiddin" in Afghanistan. Unable to cope, the Afghanistan government called for Soviet assistance and Leonid Brezhnev sent the troops in on Christmas Eve 1979. This was the height of the cold war and it was a fundamental tenet of US foreign policy at the time to resist any expansion of the Soviet empire. That was a policy common to all post-war US Administrations. The Soviet intervention in Afghanistan was seen as possibly leading to such expansion. However, after Vietnam, there was no public appetite for sending troop to fight wars in far-off places most of Middle America had never heard of and Afghanistan was just such an "unheard of" place. Further, the war lords and tribal leaders opposing the central government were not exactly the kind of people even the US government really wanted to be seen to support.
11.21.2008 10:52pm
Litigator-London:
Part 2 = Islamists and Madrassas in Afghanistan/Pakistan

There have been Muslims on the Indian sub-continent for 13 Centuries or so. As a minority faith, Indian Muslims have historically been very attached to their religion and religious practices. Parallels may assist an understanding: In British colonial Ireland with its Protestant Ascendancy, the people held on with a ferocious tenacity to their Roman Catholic faith, and in colonial Algeria, the population held onto their Muslim faith against the secularism of their temporary European masters. So in the Indian sub-continent, the Muslims (in large parts of the country in a minority) held onto their faith and at partition endured incredible hardships to regroup and found Pakistan as a Muslim state.

Jamaat el Islami was founded in British India by Abul A‘la Maududi (1903-1979) and others and it continues as a powerful transnational salafist movement now based in Pakistan but influential throughout Asia - and indeed in the United Kingdom where a significant number of the 3% of the population is of Pakistani orgin. In its early days Madudi and the Jamaat al Islami called for Muslims to leave British India and settle in Afghanistan. They were very active in the founding and encouragement of the Pakistani Madrassas - the cradles of the modern salafist terrorist movements".

Historically, Muslim communities have always regarded it as their duty to provide for the education of the young. As soon as a mosque was built it would have a madrassa ("school") attached which would meet in the mosque itself or in rooms within the precincts of the mosque. Teachers would be appointed and paid by the community. The madrassas attached to the great mosques in urban centres became the great universities, in villages they fulfilled the function of the local school. Pious Muslims who had the means would establish a trust (a "wakf") which would often have as its object the advancement of education. Islamic schools and universities, particularly those in Muslim Andalusia in modern Spain, preserved and developed for the use of the western European renaissance the culture, philosophy and science of the Hellenistic world.

That glorious past and tradition notwithstanding, the Madrassas or Koranic Schools of Pakistan, and in particular of the North West Frontier and the Federally Administered Tribal Areas ("FATA"), pose a particular problem in the context of islamist groups and terrorism. In the grinding poverty of the villages of the Northwest Frontier and Tribal areas, the mosque, the mullahs and the teachers have been the only source of any education at all and the social structures have been akin to those of the European Middle Ages. Insofar as there is any education among the tribes in Afghanistan, it tends to consist of sending the sons to residential Madrassas in the FATA of Pakistan.

Some data on Pakistani Madrassas from a report of a contribution by Professor Mumtaz Ahmad of Hampton University given at a World Bank Seminar in 2002:-

"Professor Mumtaz Ahmad of Hampton University said madrassas have long been centers for classical Islam study, and guardians of Muslim orthodoxy. They are by nature conservative since they were established to preserve traditions. The ullamahs, who manage the madrassas, are concerned about their institution's integrity within the religious community. They insure the madrassas provide classical Islamic teachings, preserve family law and religious ritual, and disseminate of Islamic sciences.

Professor Ahmad believes the madrassas constitute the core of the cultural-religious complex of Islam in south Asian societies. Estimates of the number range from 6,000 to 10,000 madrassas. The model for the modern madrassas developed in India during the 19th century. The structure of madrassas throughout the region are homogenous in what they teach and text they read. Teachings are divided into two categories: transmitted sciences and rational sciences. Rational sciences, the majority of what is taught, includes logic, philosophy, rhetoric, dialectical reasoning, mathematics, Arabic and Persian grammar and literature, and traditional medicine. Many of the texts are from the 13th and 14th centuries. There are three levels of education. First is elementary where reading the Koran is the major task. The second level looks at selected texts, and the highest level is where the complete curriculum is taught. The number of students in Pakistan is 600,000, for India it 1.5 million, and in Bangladesh there are 3 million students. They generally come from poor families who cannot send their children to modern schools. For many families, it is the only educational opportunity for their children. Madrassas are not funded by the state, but rather the community, so the government has little authority over them.

Madrassas traditionally served as an institution that groomed civil servants and judicial officials for governments across the Islamic world. For centuries, the emphasis of the curriculum stressed law. The Indian model shifted this emphasis to theology. Professor Ahmad believes one of most interesting phenomena of madrassas is students don't read the actual text of the Koran. Rather their education emphasizes reading scholarly commentary of the text. He said he has met many ullamahs, considered experts on the Koran, whom have never read the text of the entire Koran. Madrassas produce the religious functionaries that administer ceremonies in the mosques. Madrassas also serve as a mechanism for the poor to move up in social society.

Professor Ahmad said since the 1950's, small businessmen have been increasingly the financial backbone of the madrassas system. Madrassas have also expanded their financial base by moving to industrial cities. Funding sources became internationalized following the Iranian revolution and the invasion of Afghanistan by the Soviet Union.

He said most of the madrassas associated with militancy were established in 1980's. He believes those madrassas associated with terrorism were in fact terrorist camps that used madrassas style education as a cover for their actual activities. He noted the infrastructure created by the Afghan jihad against the Soviets served as the basis for a second jihad in Kashmir. Islamic militancy linked with sectarian strife in the region."


The text above glosses over some of the real problems:-

(1) The original Islamic model of the Madrassa was a school to produce the scientists, lawyers and civil servants needed by the community- it sought to teach a full and broad curriculum while the Indian sub-continent model deviated from the original beneficial model to a wholly religious curriculum so that the students are not educated in the skills needed to contribute to the material development of the community.

(2) The lack of education of many of the "teachers" is proverbial. Many are barely literate. Much of the time in the elementary classes is devoted to learning the verses of the holy Quran by rote. Very little time is spent expounding the meaning or on making it relevant to the social context because the tribal lords and elders do not wish it.

(3) Many of the Pakistani Madrassas have been funded by Saudi Wahhabis with more money than sense to promote the Wahhabi and islamist model of the islamist state ruled by religious leaders and rejecting all scientific and social progress seen as coming from the West and as dangerous.

(4) Islamist education of the type dispensed in these Madrassas, particularly in its exposition of the concept of jihad, predisposes young men towards joining jihadist or terrorist groups.

Given the numbers of jihadis which have been churned out each year for many years now by the Madrassas of the North West Frontier/FATA region, this problem is very relevant to the international terrorism issue. It is likely that the only practical solution will be root and branch reform of these pernicious institutions - but it is doubtful that the Pakistan government can do this without help.

The scale of the problem can be illustrated by the fact that the private income of the Madrassas coming from islamist sources outside Pakistan is estimated to be equivalent to the entire national tax revenue raised by the Pakistan Government.
11.21.2008 11:22pm
RPT (mail):
What is of concern here is not a worship of procedure, it is the substantive disapproval of the incarceration and torture of people who are innocent of any wrongdoing and for whom there is no evidence, "classified" or otherwise, of such. Nothing. Factual innocence.

Second, Mukasey, as after the fact facilatator, Cheney, Addington, Yoo, et al, support a system of "heads I win, tails you lose". They can do anything to the unfortunates who fall under their power. No accountability.
11.21.2008 11:30pm
Soronel Haetir (mail):
Ben D,

I have been looking through torturingdemocracy as you suggest and have yet to come across anything claiming that what happened at AG was condoned. Even the claim that the military wanted the authority to conduct such activities in Iraq doesn't fill that void.
11.21.2008 11:39pm
Litigator-London:
Part 3 - Proxy War in Afghanistan - Carter Administration

The Digital National Security Archive has a paper: Afghanistan: The Making of U.S. Policy (1973-1990). The paper contains the following assertion:-

"In March 1979, Afghans in the western city of Herat responded to rebel calls for a jihad by massacring hundreds of DRA officials and Soviet advisors who were in charge of introducing the women’s literacy program there. Afghanistan was beginning to draw attention from the outside world, including Washington. At the White House, National Security Advisor Zbigniew Brzezinski warned President Carter that the Soviet Union, with its hundreds of advisors in Afghanistan to assist in reforms and counterinsurgency operations, had territorial designs on Afghanistan and possibly the whole South Asia region. Brzezinski and others worried that the USSR might take advantage of its presence in Afghanistan in order to influence events in neighboring Iran or Pakistan, two traditionally pro-American countries that for years had helped safeguard U.S. interests in the region, namely access to oil and the containment of the Soviet Union.

If the DRA were able to consolidate its power, Brzezinski argued, then the Soviet Union might turn Afghanistan into a launching pad for aggression in the region. Weeks after the Herat uprising and while President Carter was absorbed by the Iran hostage crisis, Brzezinski pushed a decision through the Special Coordination Committee (SCC) of the National Security Council (NSC) to be, as he put it, "more sympathetic to those Afghans who were determined to preserve their country’s independence."

Although deliberately vague as to what this meant, the evidence indicates that Brzezinski called for moderate covert support for Afghan dissident groups which had set up headquarters in Pakistan. Some, such as forces under the command of Rabbani and Hekmatyar, had been operating out of Pakistan without much outside aid for years. According to a former Pakistani military official who was interviewed in 1988, the U.S. Embassy in Islamabad had asked Pakistani military officials in April 1979 to recommend a rebel organization that would make the best use of U.S. aid. The following month, the Pakistani source claimed, he personally introduced a CIA official to Hekmatyar who, while more radically Islamic and anti-American than most Afghans, headed what the Pakistani government considered the most militant and organized rebel group, the Hizb-i Islami (Hekmatyar).

Freedom of Information Act requests for records describing these meetings have been denied. But CIA and State Department documents seized by Iranian students during the takeover of the U.S. Embassy in Tehran in November 1979, reveal that, starting in April 1979, eight months before the Soviet intervention and immediately following Brzezinski’s SCC decision, the United States had, in fact, begun quietly meeting rebel representatives. Although most of the cables and memoranda released to date show that U.S. officials politely turned down rebel requests for U.S. assistance, others reveal CIA support for anti-DRA demonstrations and close monitoring of Pakistani military aid for rebel parties based in Pakistan’s NWFP."


This suggests that Brzezinski pushed through the policy of assistance to the rebels without specifically informing the President what he and the CIA were up to. Then there is this astounding interview published in the French magazine, Nouvel Observateur and posted in translation on the web site of the Center for Research on Globalisation:-

The CIA's Intervention in Afghanistan - Interview with Zbigniew Brzezinski, President Jimmy Carter's National Security Adviser - Le Nouvel Observateur, Paris, 15-21 January 1998

Question: The former director of the CIA, Robert Gates, stated in his memoirs ["From the Shadows"], that American intelligence services began to aid the Mujahadeen in Afghanistan 6 months before the Soviet intervention. In this period you were the national security adviser to President Carter. You therefore played a role in this affair. Is that correct?

Brzezinski: Yes. According to the official version of history, CIA aid to the Mujahadeen began during 1980, that is to say, after the Soviet army invaded Afghanistan, 24 Dec 1979. But the reality, secretly guarded until now, is completely otherwise Indeed, it was July 3, 1979 that President Carter signed the first directive for secret aid to the opponents of the pro-Soviet regime in Kabul. And that very day, I wrote a note to the president in which I explained to him that in my opinion this aid was going to induce a Soviet military intervention.

Question: Despite this risk, you were an advocate of this covert action. But perhaps you yourself desired this Soviet entry into war and looked to provoke it?

Brzezinski: It isn't quite that. We didn't push the Russians to intervene, but we knowingly increased the probability that they would.

Question: When the Soviets justified their intervention by asserting that they intended to fight against a secret involvement of the United States in Afghanistan, people didn't believe them. However, there was a basis of truth. You don't regret anything today?

Brzezinski: Regret what? That secret operation was an excellent idea. It had the effect of drawing the Russians into the Afghan trap and you want me to regret it? The day that the Soviets officially crossed the border, I wrote to President Carter. We now have the opportunity of giving to the USSR its Vietnam war. Indeed, for almost 10 years, Moscow had to carry on a war unsupportable by the government, a conflict that brought about the demoralization and finally the breakup of the Soviet empire.

Question: And neither do you regret having supported the Islamic fundamentalism, having given arms and advice to future terrorists?

Brzezinski: What is most important to the history of the world? The Taliban or the collapse of the Soviet empire? Some stirred-up Moslems or the liberation of Central Europe and the end of the cold war?

Question: Some stirred-up Moslems? But it has been said and repeated Islamic fundamentalism represents a world menace today.

Brzezinski: Nonsense! It is said that the West had a global policy in regard to Islam. That is stupid. There isn't a global Islam. Look at Islam in a rational manner and without demagoguery or emotion. It is the leading religion of the world with 1.5 billion followers. But what is there in common among Saudi Arabian fundamentalism, moderate Morocco, Pakistan militarism, Egyptian pro-Western or Central Asian secularism? Nothing more than what unites the Christian countries.


Translated from the French by Bill Blum


People have suggested that this was just Brzezinski trying to steal the credit for a Reagan policy. But there are published on the CNN website the texts of two memoranda from Brzezinski to Carter which support his claims: Brzezinski Carter Memos

If the proposition that Brzezinski initiated the "Afghan Trap" is correct, and he certainly seems to claim that he did and there is documentary support for his claim, then in order to defeat Soviets and liberate his ancestral homeland (Poland rather than Canada), he was willing to inflict the Afghan War on the people of Afghanistan.

The Afghan War was one of the deadliest and most persistent conflicts of the second half of the 20th century. Nearly 2 million Afghans were killed (as well as at least 15,000 Soviet soldiers during the 1980s), and 600,000 to 2 million wounded.

More than 6 million Afghans fled to Pakistan and Iran, producing the world’s largest single refugee population since 1981, while at least 2 million more Afghans were internally displaced. More than 50 percent of Afghanistan’s indigenous population (estimated at 15 to 17 million persons at the war’s beginning, now estimated to be as many as 22 million) became casualties—killed, wounded, or made homeless by the war. The Soviet army in Afghanistan and the Afghan communist government planted an estimated thirty million mines throughout the country, most of them completely unmarked and unmapped.
11.21.2008 11:54pm
John Moore (www):

@Soronel Haetir

I agree there with you that is more than one class of detainees. I would suggest more - those whom the government extracted useful information from and now want to prosecute. Beyond that, there are those whom the government wants to prosecute where the evidence is highly classified and those where it is not. Further complicating this is the difficulty of acquiring evidence under exigent circumstances.

We should not let past mistakes confuse us about future solutions. The proposed solutions are what count - whatever the involvement by various branches of government.

The current approach that SCOTUS seems to be pushing (if anyone can figure out their intent) is to treat these people as ordinary American criminals. That is terribly foolish and dangerous.

@MarkField
We're in a situation in which we're trying to bring to justice some criminals who murdered 3000 of our fellow citizens. More importantly, though, we're in a battle for the hearts and minds of those who might be receptive to the lies of those criminals, and who might add to our burden by joining them. One of our principal goals in this struggle has to be that of reducing the pool of enemies. And the way we begin to do this is by acting in a way that even the potential recruits have to admit is fair.


The issue of bringing the murderers to justice is a small part of the problem. The harder problem, as you point out, is winning the war. However, it is a mistake to think that our standards of fairness have any significant effect in motivating or demotivating our enemy.

This is a fanatical enemy, not a band of armed lawyers. Most of its members are from cultures where fairness may just as likely seen as un-manly weakness as anything else.
Worse yet for your position, what's at issue in these hearings is whether these men were properly detained at all. That is, whether they are in fact dangerous to us at all. There must be a higher standard of fairness in such cases because the whole force of your argument disintegrates, even on its own terms, if the men are not our enemies at all. And what Judge Leon has held here is that the government lacks any reasonable basis to hold them.


The problem is with the word "properly." Properly by US Criminal Justice standards? Properly by Pushtun standards? Properly by Sharia standards? Properly by this or that treaty that we did or did not ratify?

There is too much of a push to use the extremely suspect-friendly standards of American criminal justice.

While these people are no longer on the battlefield, they are still enemy or probable enemy personnel in an ongoing war. Hence the application of standard American Habeus Corpus is absurd.

Instead, we need an adjudication system which places less emphasis on "innocent until proven guilty" and properly obtained evidence, etc, and one which strives to apply standards (i.e. fairness) in a manner consistent with the battle we are in. That does mean we need a formalized new system.

Furthermore, given the different nature of the prisoners, the system for prosecution should have more safeguards than the one for determining preventive detainment. Holding these people as de facto POW's is not nearly the harm as is threatened by prosecutions for war crimes and terrorism, and shouldn't have the same level of protection.

You say the situation should not be politicized, and then follow with this extremely partisan and controversial rhetoric:
Yet that's what the Bush Administration has done. It kidnapped these men for no good reason. It used them and others to scare the American people and hoped thereby to gain political advantage. That's unconscionable, and it's precisely why pre-existing standards of fairness are so important to demand in this situation.


You are not asserting fact. You are asserting a partisan opinon, and one I find frankly offensive. You are accusing the Bush Administration of sociopathic actions - using the confinement of presumed innocents for political goals. That is a very strong charge and not consistent with the evidence. It certainly is not an argument for using "pre-existing standards of fairness."
11.22.2008 12:00am
John Moore (www):
RPT:
What is of concern here is not a worship of procedure, it is the substantive disapproval of the incarceration and torture of people who are innocent of any wrongdoing and for whom there is no evidence, "classified" or otherwise, of such. Nothing. Factual innocence.


Nonsense on stilts. Where factual innocence has been discovered in some cases with the result that the detainee were released.

However, in a war, preventive detention of the enemy and suspected enemy is also normal, legal practice. A detainee in Guantanamo need not be "guilty" of direct crimes in order to remain a danger.

Beyond that, how do you explain the release of a significant number detainees who subsequently were found back in combat against us? That doesn't seem to be the actions of a malevolent administration fond of incarcerating and torturing innocents.

The imputation of vile motives against the Bush administration to be one of the most frustrating parts of this argument. Once the opponents is branded as evil, then hey, we need to stop whatever he is doing. Any explanation or reason he gives is suspect, because he is a bad guy with evil intent.

I often wonder whether this tendency comes from paranoia or projection. There is a reason for the term "Bush Derangement Syndrome."

I would love for someone to give me reasons why Bush and his evil fiends would do these vile deeds, given the inevitable political consequences for them. What is the motive for torturing innocents? What is the motive for holding them in prison? What was the subtle, sneaky motive for letting a bunch of them loose?

How about we stay away from this sort of BDS driven distractions and deal with the real, difficult issues.

Turning loose a bunch of terrorists, no matter how much you hate Bush, is not a good thing.
11.22.2008 12:11am
John Moore (www):
Oops, over-editing without adequate subsequent review produced a bunch of typos and gramatical no-nos. Sorry.
11.22.2008 12:14am
Matt_T:
Please explain the reason for your censorship. It was here this morning when I looked.

This "censorship" word - it doesn't mean what you think it does. A private party's refusal to subsidize your speech by providing you a no-cost forum to disrupt others' attempts t constructive debate isn't censorship under any meaningful definition of the word
11.22.2008 12:17am
Matt_T:
What we are looking at are the ashes of failed policy.

What we are looking at is a violation of anything approaching blog comment etiquette. When you post something that long, either link to it or post it on pastebin.
11.22.2008 12:19am
Litigator-London:
Part 4 - The Reagan Administration and Afghanistan - Pakistan

While President Carter will have had other things on his mind besides the situation in Afghanistan - the Iran hostage crisis for example - the same cannot be said of President Reagan and the people of his administration many of whom resurface in the George W. Bush Administration.

While under Carter the aid to the Afghan Rebels was quite limited, under Reagan, the brakes were taken off with a vengeance. Unable to obtain funding from the Congress, the Reagan Administration deliberately - and quite unlawfully - set out to subvert that restraint by creating "back-routes" to funding. A lot of relevant data came out during the Iran-Contra scandal which resulted in the indictment of a number of Reagan Administration officials. One important source of funds was Saudi Arabia as shown by this Bob Woodward 1987 Washington Post Story archived on Professor Juan Cole's web site.

Note the final paragraph: "Saudi Arabia has made substantial covert contributions to the anticommunist resistance in Afghanistan, Angola and Ethiopia that also are being assisted covertly by the CIA. In the case of support to the Afghanistan rebels, the two governments have a secret agreement to match each others covert contributions dollar for dollar. The latest reliable figures show that each is providing at least $ 280 million a year." The stinger missiles sent to Saudi Arabia found their way to Afghanistan.

By this time the latest of the Pakistani General to seize power in Pakistan was General Zia Ul Haq. The following comes from a paper by F.S. Aijazuddin - Islamisation under General Zia Ul Haq and Secularism under General Pervez Musharraf – The Pakistani Experience

"The fount of Zia’s Islamic ideology came from Maulana Maudoodi and his Jamaat-IIslami party. Zia shared his zealous belief that Islam was more than merely a religion. It was a complete code of life. Furthermore, it could not be contained within territorial boundaries. Islam was a religious transnational, cutting across borders. ‘Mawdudi understood the Islamic state not as a territorial but as a cultural and ethical entity. Its boundaries, values, goals, and citizens were defined in Islamic terms...

Zia’s power did not derive his power from the ballot box; it came from the barrel of the Pakistan Army. By remaining its Chief of Army Staff throughout the eleven years he stayed in power, Zia ensured that the machinery of the army would be available to him even to enforce his political civil agenda. In a speech he gave in 1984, he repeated his earlier resolve: “Pakistan’s armed forces were responsible for not only safeguarding the country’s territorial integrity but also its ideological basis.’ Bhutto’s biographer Stanley Wolpert believed that the Jamaat-I-Islami party of Maulana Maudoodi ‘had a “large following” in all ranks of the army, though no one really knew exactly how large it was or high in the topmost command its “sympathisers” went.’ To determine its extent and the degree of its loyalty, Zia introduced a requirement within the Armed Forces that the Annual Confidential Report every reporting officer had to complete on his subordinates must disclose religious affiliations, leanings, diligence in prayers, and observance of fasting....Gradually and selectively, through retirements, promotions, and indoctrination, Zia had managed to alter the architecture of the Pakistan Army from an earlier starched British model of mechanical regularity to a more broadly educated community of practising Muslims.

Cohen contrasted the impact of Zia’s influence on Pakistan and compared that with what had preceded it: ‘If the Pakistan movement and the first twenty-five years of the history of Pakistan can be characterized as a struggle to turn Indian Muslims into Pakistanis, the years since 1972 have seen an extension of the process: a struggle to turn Pakistanis into good Muslims.’ That was particularly true of the Pakistan Army under Zia Ul Haq.

Rather than using these ‘good Muslims’ though to fight a jihad against the godless Soviets directly, Zia used the subterfuge of a shadow force, the Inter Services Intelligence (ISI) wing of the Pakistan army. Over the eight-year campaign against the Soviets, the ISI covertly supplied the local Mujahideen with arms funded by the Saudis and the United States. ‘The close relationship with …the American military encouraged deferral of the issue of Islam and the military: it was enough that the army served an Islamic state’.

The ISI for its part showed history how easy it was to fight someone else’s war, using someone else’s money, and whenever the need arose, sacrificing someone else’s life"


CIA funding for Afghanistan was largely channelled through the ISI. Saudi Royal family money also went largely via Pakistan, but in addition, there was much money raised from wealthy Saudi families sympathetic to the Mujahiddin cause which went directly to the Mujahiddin.
11.22.2008 12:33am
Vanhattan (mail):
The president is not a king with unlimited powers under our constitution and for many very good reasons. The entire concept of limited power of the presidency is so that no one would have the authority to lock up anyone indefinitely without even pressing formal charges or a right to a trial.

This is exactly what has taken place here. We do not know the exact motives of the Bush administration for the 7 year detention without charges of people that even an extremely conservative judge would find appalling and without any merit whatsoever resulting in his decision to release them immediately. Time will tell, but if the Bush administration modus operandi is any indication, these "enemy combatants" were nothing more than propaganda fodder to instill and sustain fear in the republic to cover up their real goals and aims.

Others here have posted that these powers are necessary in times of "War". Without ever declaring war on anyone or any state, we now find ourselves in a never ending war. Why? So that the president can “legally” lock up anyone for life if he so chooses without any sustentative reason or charges. This was the very concept of George Orwell’s' 1984: A constant and never ending war to support and obfuscate the tyranny of the government over the masses.
11.22.2008 12:37am
MarkField (mail):

I certainly hope that an Obama administration will produce more pragmatic approaches to the problem and arguments to defend them than the dogmatic ones you in unison voice currently offer.


I consider it no dishonor to be considered dogmatic on the issue of fundamental fairness. Ich kann nicht anders.

If you have some suggestions, I'm happy to hear them. But in the context of this specific case, where, as RPT, emphasized, the judge has made a finding of factual innocence, it strikes me as pretty unreasonable to be defending the Administration.


However, it is a mistake to think that our standards of fairness have any significant effect in motivating or demotivating our enemy.


This mis-states my position in a very significant way. I have no illusion that someone who's already a member of Al Qaeda will observe our behavior and suddenly see the light of day. Stranger things have happened in this world, but I'm not holding my breath on this one.

No, my position is that people who are not yet members of Al Qaeda will observe our actions and decide that Al Qaeda is not for them. Better yet, maybe they'll trust us enough to cooperate in eradicating such criminal enterprises.


The problem is with the word "properly." Properly by US Criminal Justice standards? Properly by Pushtun standards? Properly by Sharia standards? Properly by this or that treaty that we did or did not ratify?


You're ignoring the facts of this case. The judge has found that there is no basis for holding these men. None, nada. The government has no case. And that's even in a situation where the government was able to give secret evidence to the judge which neither the defendants nor their lawyers could see. I'm not aware of any legal system anywhere in which someone could be held when there is no evidence. This particular case does not raise any issue of this or that legal system. It raises an issue of basic human rights.

Your suggested other systems of justice are bizarre under the facts of this case. These detainees are from Bosnia. They are not Pushtun; AFAIK, Sharia has nothing whatsoever to do with this.


There is too much of a push to use the extremely suspect-friendly standards of American criminal justice.


There is no such push. The "push" is to apply the standard of fundamental fairness in making the determination that these particular people are, in fact, our enemies. After all, we have no excuse for detaining them if they're not.


While these people are no longer on the battlefield, they are still enemy or probable enemy personnel in an ongoing war.


You've got your facts wrong. The particular detainees we're discussing were NEVER ON A BATTLEFIELD. I can't say it any louder, so I'll try saying it again: NEVER ON A BATTLEFIELD.

As for your claim that they are probable enemy personnel, you (i.e., the government) have no evidence. That's what the judge found. No evidence. You can't just throw someone into Gitmo on John Moore's say-so.


You are not asserting fact.


Yes, I'm asserting the exact facts of this particular case. These Bosnians were ordered freed by a court in Bosnia because the US failed to produce any evidence of their complicity. As they left the courthouse, they were seized without any legal authority. That's kidnapping.


You are asserting a partisan opinon, and one I find frankly offensive.


What's offensive is what the Bush Administration did in this case. The Administration failed to provide any evidence to hold these detainees when the case was heard in Bosnia. It failed to provide such evidence to Judge Leon. It clearly has no such evidence.

For seven years -- 7 years!! -- they've been held at Guantanamo, which, we were assured, was reserved for the "worst of the worst". That statement, as applied to these detainees, is flagrantly false, as, indeed, it was to over half of those sent there -- more than half of detainees having been released by the Bush Administration itself.

Their treatment at Guantanamo is described here. Bear in mind when you read this that, as I've said before, the judge has found that there is no evidence to support holding them.

You have a strange sense of "offensive" if you find my recital of basic facts more objectionable than the Bush Administration's behavior here.
11.22.2008 12:43am
Litigator-London:
Part 5 - Creation and Indoctrination

This is how the 9-11 Commission puts the participation of Bin Laden in the Afghan resistance to the Soviets (Chapter 2, pp 55-6):-

" Twenty-three when he arrived in Afghanistan in 1980, Bin Ladin was the seventeenth of 57 children of a Saudi construction magnate. Six feet five and thin, Bin Ladin appeared to be ungainly but was in fact quite athletic, skilled as a horseman, runner, climber, and soccer player. He had attended Abdul Aziz University in Saudi Arabia. By some accounts, he had been interested there in religious studies, inspired by tape recordings of fiery sermons by Abdullah Azzam, a Palestinian and a disciple of Qutb.

Bin Ladin was conspicuous among the volunteers not because he showed evidence of religious learning but because he had access to some of his family’s huge fortune. Though he took part in at least one actual battle, he became known chiefly as a person who generously helped fund the anti-Soviet jihad.

Bin Ladin understood better than most of the volunteers the extent to which the continuation and eventual success of the jihad in Afghanistan depended on an increasingly complex, almost worldwide organization. This organization included a financial support network that came to be known as the “Golden Chain,” put together mainly by financiers in Saudi Arabia and the Persian Gulf states. Donations flowed through charities or other nongovernmental organizations (NGOs). Bin Ladin and the “Afghan Arabs” drew largely on funds raised by this network, whose agents roamed world markets to buy arms and supplies for the mujahideen, or “holy warriors."†

Mosques, schools, and boarding houses served as recruiting stations in many parts of the world, including the United States. Some were set up by Islamic extremists or their financial backers. Bin Ladin had an important part in this activity. He and the cleric Azzam had joined in creating a “Bureau of Services” (Mektab al Khidmat, or MAK), which channeled recruits into Afghanistan.

The international environment for Bin Ladin’s efforts was ideal. Saudi Arabia and the United States supplied billions of dollars worth of secret assistance to rebel groups in Afghanistan fighting the Soviet occupation. This assistance was funneled through Pakistan: the Pakistani military intelligence service (Inter- Services Intelligence Directorate, or ISID), helped train the rebels and distribute the arms. But Bin Ladin and his comrades had their own sources of support and training, and they received little or no assistance from the United States."


Shorn of the verbiage, MAK was a recruitment agency, commissariat and logistics organisation. There was nothing particularly complex about either the financing or the supply chain. It is certainly true that MAK logistics operation received no financial assistance from the US Government. Their millions came from Bin Laden's own family and from fundamentalist charities and supporters in Saudi Arabia. But the recruitment in the Arab states was officially encouraged by US diplomacy and the military training was provided in both Pakistan and Afghanistan directly and indirectly by the CIA.

Over 45,000 non-Afghan volunteers ("Arab Mujahiddin") traveled to Afghanistan to fight the Russians. The Arab volunteers were recruited with CIA and Saudi money in poor Muslim countries, mainly Algeria, Egypt, Morocco and Yemen and sent to Afghanistan, usually via Pakistan.

Most of these poor recruits were identified in their home countries by salafist (islamist) organisations of long standing such as the Muslim Brotherhood in Egypt. An important part of their training was psychological indoctrination. Those organising the resistance to the Soviets well knew that they were up against one of the most advanced military machines in the world, moreover, one which was quite ruthless in exposing its own military personnel to danger. For all the training the Mujahiddin were to receive in the camps, there was no way that they would be militarily the equal of the Soviet Army. They had to be prepared to take very large numbers of casualties and to take extraordinary risks.

The solution was a form of brain-washing. It is well-known that one of the most powerful motivating factors is religion and in effect the aim of this psychological indoctrination was to convince the recruits that they were doing God's will and that if by chance they were to die, they would go directly to Paradise.

The US Well Spring Foundation is an organisation dedicated to the assistance of cult victims. In its Journal it has recently published a paper by Stephen Martin, Al Quaida and the Taliban: the Pattern of Cults. Martin concludes that the the Al-Quai'da and Taliban processes of recruitment, group dynamics, thought reform, and resulting personality changes are very similar to those of US cults. Martin points out that "Stephen Kent, a professor of the psychology of religion at the University of Alberta in Edmonton, Alberta, Canada, said that the teachings of any religion can be distorted for political gain. " Terrorists dip into the mainstream aspects of this tradition, extract an array of ideas on the value of martyrdom and use this to justify violent action."

The paper concludes: "Social support and supportive relationships are what people long for, and can be used for evil or for good. The fact that this happens in terrorist groups should open our eyes. If individuals do not find social support and supportive relationships in a culture, family, or religious organization, they will go somewhere else where they will find it - perhaps in a place of evil".

The fact that "mind control" techniques were used by terrorist leaders when training their recruits is further documented in an interesting MSc Thesis by Melanie J. Kreckovsky, Lt Commander US Naval Reserve: The fact that "mind control" techniques were used by terrorist leaders when training their recruits is further documented in an interesting MSc Thesis by Melanie J. Kreckovsky, Lt Commander US Naval Reserve: Training for Terror: A Case Study of Al-Quaida.

In other words, the salafist terrorism of today was a creation of the Reagan Administration. A classic example of the law of unintended consequences.
11.22.2008 12:45am
RPT (mail):
"Mr. Moore:

Where factual innocence has been discovered in some cases with the result that the detainee were released..........

Beyond that, how do you explain the release of a significant number detainees who subsequently were found back in combat against us?"

You have answered your own question. Those released were released because they were factually innocent and had never been in combat; hence they could not go "back" into combat. It is not difficult to imagine why someone falsely accused would want to retaliate in some way against the perpetrator.

Re the problem of vile intent, it is inferred from the acts themselves and the manner in which they were ingenuously and secretly rationalized by the "lawyers" who were recruited to be yes men (Yoo) or were the long time believers in their own righteousness (Addington). Yes, there is evil in the world, much of it outside our borders, but some of it right at home. "Shock and awe" against civilians. Why is that hard to accept? Your BDS acronym is just a way to avoid facing the facts and sordid reality. The perpetrators were the deranged, at least in the eyes of most of the civilized world.

Finally, what "inevitable political consequences"? They concealed their acts to avoid such, and they will almost certainly be pardoned and end up with lucrative positions at the Heritage Foundation, or the American Enterprise Institute. That is why the hoped for inquiry into the Holder Marc Rich pardon involvement will open the door to the Bush pardons.
11.22.2008 12:51am
jukeboxgrad (mail):
moore:

Most of its members are from cultures where fairness may just as likely seen as un-manly weakness as anything else.


When you say you're concerned that our fairness will be seen as weakness, this tends to create the impression that you see fairness as weakness. In other words, I think you're projecting.
11.22.2008 1:09am
jukeboxgrad (mail):
soronel:

Your argument would be made a lot stronger if you would drop the Abu Grahib abuses were condoned line.


Taguba is the two-star general who led the first investigation into what happened at Abu Ghraib. He said this:

I believe, even today, that those civilian and military leaders responsible should be held accountable.


And there's this:

senior defense officials were involved in directing abusive interrogation policies


You should tell us what you know that Taguba doesn't.
11.22.2008 1:09am
Soronel Haetir (mail):
RPT,

There may be at least some dispute with that statement. I may be wrong, but I thought at least some of the folks who were released were sent for confinment by that country and were subsquently released by that country as well. That process does not seem like it would state that the person was not engaged in activities that would warrent detention to begin with.
11.22.2008 1:13am
jukeboxgrad (mail):
moore:

Turning loose a bunch of terrorists, no matter how much you hate Bush, is not a good thing


Most of the people at Gitmo are not "terrorists." See this:

Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda.


Those claims are well-documented (pdf).
11.22.2008 1:14am
David Warner:
MarkField,

"But in the context of this specific case, where, as RPT, emphasized, the judge has made a finding of factual innocence, it strikes me as pretty unreasonable to be defending the Administration."

Your choice of context is a crucial part of your approach. Your theory of the present administration's actions and motivations is not made more plausible by ignoring the question of the severity and nature of the threats those policies were intended to address or the need for information (including agent identity) security.

Dismissing those questions out of hand is an inauspicious way to lay the groundwork for defending the policies of the coming Obama administration, which will not enjoy the luxury of ignoring them. I have some hope that that Administration will merit a lively defense.
11.22.2008 1:18am
Soronel Haetir (mail):
jukeboxgrad,

Sorry, but 'a sense' even by a two-star shunted out of his job just doesn't cut it. Especially when all of the really incinderarey stuff in that regard I've seen since Ben D gave me the torturingdemocracy link were made by the low level soldiers already caught up in a shitstorm. They had every reason to try and shift some blame.

There were a couple statements made by others, but not rising to nearly the degree of those made by the accused.
11.22.2008 1:24am
Soronel Haetir (mail):
jukeboxgrad,

That report has been the topic of prior VC discussions, its impartiality on the topics leaves much to be desired.

I'm not even sure what the least bad option for what to do with these folks is at this point. Perhaps airlift all those not intended for prosecution to someplace really remote and hope no-one finds them?

At least if it were limited to people being prosecuted the way forward could be made clearer far easier.
11.22.2008 1:32am
John Moore (www):
@Vanhattan - once again, you make thae accusations against Bush. If you are going to impute these absurd desires to Bush, at least give us a reason why Bush has such bizarre desires. You are sounding paranoid:
Why? So that the president can “legally” lock up anyone for life if he so chooses without any sustentative reason or charges.


@MarkField
No, my position is that people who are not yet members of Al Qaeda will observe our actions and decide that Al Qaeda is not for them. Better yet, maybe they'll trust us enough to cooperate in eradicating such criminal enterprises.

No, I exactly understand that position. I also was referring to potential enemies, not those already decided. You are assuming that our standards are recognized by those potential enemies. This may be true for some, but not for a large number.

The most dangerous terrorists come from well educated and middle class backgrounds, and have a history of being drawn into Islamist ideology by acquaintances. Al Qaeda has a very high percentage of engineers and other technical professionals. Their motivations have been studied and the treatment of prisoners by us is a very tiny part of that.

You're ignoring the facts of this case

A miscommunication. I'm sorry. I am referring to the overall issue of applying normal US legal protections to people who are approximately POWs.

In this case in particular, the judge found, using normal US criminal justice procedures, that people captured outside of the US police system, outside of situations where normal evidence gathering would take place, and outside of our country, could not be proven to require detainment. That simply illustrates, as Mukasey writes, the difficulty of using our current inappropriate system. The judge did not find "no evidence" - the judge found "insufficient evidence/" Insufficient by which standard?

Perhaps the judge was right. Fine. But we need a system designed for these circumstances.

One needs to ask... why would the Bush administration hold these people if it knew they were innocent? We have captured thousands, but only hold a couple of hundred in Guantanamo. What was different about these folks?

It is possible that these particular detainees are being held for nefarious reasons - such as CYA by whoever caused their capture in the first place. Perhaps it is just normal bureaucratic functioning. It is likely that the Administration believed that they constituted a danger, and the judge simply disagreedt.

I do not assert that Guantanamo detainees are all guilty and dangerous. That would be naive. However, in trying to provide justice to those who deserve to be released, we run a very real risk of doing far more harm in release dangerous terrorists - if not these men, then others.
11.22.2008 2:04am
John Moore (www):
@RPT:
You have answered your own question. Those released were released because they were factually innocent and had never been in combat; hence they could not go "back" into combat. It is not difficult to imagine why someone falsely accused would want to retaliate in some way against the perpetrator.

Re the problem of vile intent, it is inferred from the acts themselves and the manner in which they were ingenuously and secretly rationalized by the "lawyers" who were recruited to be yes men (Yoo) or were the long time believers in their own righteousness (Addington).


Okay, let me see here... they found people innocent and sent them back. But they kept some other innocents due to some secret, unknown vile intent; an intent, btw, that you casually attribute to the existence of evil in the world. Would you care to explain how these vile people chose which of the innocent to release and which of the innocent to keep?

@Jukeboxgrad,
When you say you're concerned that our fairness will be seen as weakness, this tends to create the impression that you see fairness as weakness. In other words, I think you're projecting.


So if I report that widely known cultural attitudes have relevance to this discussion, I have those attributes?

Please.
11.22.2008 2:17am
lucklucky (mail):
@RPT:
You have answered your own question. Those released were released because they were factually innocent and had never been in combat; hence they could not go "back" into combat. It is not difficult to imagine why someone falsely accused would want to retaliate in some way against the perpetrator.


You don't know what you are talking about and your lack of willingness to think is outstanding. They could have been released by many reasons even if they were combatants. That happened many times. For example in Iraq. Comon if they could convince Military they were fighting only for money.


"Denbeaux, who has worked with Seton Hall University's Law School in studying the Guantanamo detainees' cases, said that 55 percent have never been accused of committing a hostile act against the United States or its allies and that 60 percent were neither fighters for the Taliban nor for al-Qaeda."

How do fix the bias issue? Military will tend to see danger everywhere. Lawyers and legal people will try expand any legal reach. So it is not suprising what they saw specially since they didn't had access to classified information...
11.22.2008 3:03am
Litigator-London:
The point of the necessarily lengthy posts about how today's salafist (islamist) terrorists came to be created is that there is a highly respectable argument that many of them have been "brainwashed" and like members of cults, they may indeed need deprogramming before they are safe to be returned to their communities.

The Yemen has such a program which one understands has had some degree of success and Saudia Arabia is thought to be starting one up.

There was and is therefore a case to be made for the preventative detention of persons thought to have been infected with the salafist virus but against whom no specific crime could be proven to a proper standard.

There is very little doubt that the Bush Administration had the knowledge about the techniques which were used to indoctrinate salafist terrorists in both Pakistan and Afghanistan.

When the Bush Administration determined that it ought to go into Afghanistan to eliminate the threat, a UN Security Council mandate was there fore the asking. Such mandates routinely provide authority for the detention and internment of persons apprehended whom the military commanders determine to pose a threat to peace and security, subject only to the requirement that their continued detention is reviewed at 6 monthly intervals by an an appropriate review process and that the detention conditions are humane.

Therefore, when the decision was made to go into Afghanistan, if a UN Mandate had been sought, it would have been perfectly lawful as a matter of international law to set up a properly organised detention facility either in Afghanistan or if the battlefield conditions made that impossible, it could have been located across the Durand Line in Pakistan.

With a UN Mandate there was no need to bring any prisoners to Guantanamo Bay at all.

There would, of course, have needed to be a process of triage to separate the goatherds and the like caught up in the fog of war from the combatants and sympathisers.

There could have been rehabilitation and deprogramming facilities. With all its experience of weird cults the USA has perhaps the world's best reservoir of talent in that field.

Preventative detention until a person was deemed safe to release on review would have been perfectly lawful.

Why then was a UN Mandate not sought? Well, because of the reluctance of the Bush Administration to deal with the UN at all, and I also suspect, but cannot prove, that the Administration had determined almost on day one that it wanted to invade Iraq and did not want the UN involved with that.

But another reason may well have been that the Bush administration (particularly those who were Reaganites) did not want to make any admission that Al Quaida and similarly minded salafist groups are the product of the Reagan proxy war with the Soviet Union.

So what was devised was more of the same "cowboy" approach - go into Afghanistan, sweep up all and sundry, offer bounties to impoverished people to finger suspects - snatch suspects wherever else regardless of the sovereignty of other nations and transport them to legal black holes - in Afghanistan, at Guantanamo and at who knows what other black sites. Use whatever interrogation means will obtain information - these people are not citizens, they are outside the USA - the rules do not apply.

The only problem was that by operating with such blatant disregard for law, the lawyers of the administration miscalculated.

If they had done their research, into habeas corpus, they would have found that this common law remedy devised in English law is held to operate not in rem but in personam - if there is a person within the jurisdiction of the court who controls the prisoner, then the writ will run. After some hesitation, the US Supreme Court held that similar principles applied. The prisoners in Guantamamo were not in a legal black hole but had a constitutional right to bring habeas corpus proceedings.

Shock horror in the Administration - records they had though to be immune from outside scrutiny now have to be produced and they are undoubtedly of very variable probative value.

One can read the panic writ large in the sworn declaration of Gordon England, Deputy Secretary of Defense, annexing other declarations all conveniently found on Scotusblog here all to the effect that the authorities cannot comply with the case management timetable the Court set - or anything like it.

What one gets from all the appeals and manoeuvres is a clear desire to kick everything into touch until 20th January 2009 at which point the problems will pass to others to resolve.

Judge Mukasey's prepared remarks has to be recognised for what it was - an able piece of special pleading before a very carefully selected jury of the Bush Administration conservative faithful.

"We changed the balance of the federal judiciary to the kind of people you like - we have kept America safe - and if we made errors they were made in good faith under enormous pressure and there was no intentional wrong-doing."

What on earth did anyone expect him to say?

Buried within is an invitation, almost a plea to the next administration and the next congress - backed with a threat:

"When 56 Members of Congress request a criminal investigation of the professionals and lawyers, they should have no doubt that those lawyers, and certainly their successors, will get the message: if they support an aggressive counterterrorism policy based on their good faith belief that such a policy is lawful, they may one day be prosecuted for it.

But that makes two bold assumption (i) that the policies were in fact devised with a "good faith belief that the policies were lawful" and (ii) whether there were reasonable grounds for such beliefs".

A member of the Flat Earth society may have a good faith belief that the earth is flat, it does not follow that his belief is reasonable.

One has to say that what is thus far in the public domain rather points away from a good faith belief, the problem is that without proper enquiry we shall never know.
11.22.2008 3:15am
Litigator-London:
Practically, how can matters be resolved:-

1. Separate the detainees into two groups: those where there is a case to answer for a criminal offence and those where there is not.

2. For the first category legislate to try them before
Federal Judges in the US civil courts, or (ii) if on arraignment it appears to the Federal Court that there will be a need to make extensive use of classified material that cannot safely be redacted or summarised and disclosed to a jury, before Courts-Martial sitting as Military Commissions but operating to the same procedural rules which apply to Courts-Martial save that the sentencing regime shall be that applicable in Federal Court.

3. Legislate to provide that where on habeas review it is determined that there are good national security grounds (to the civil standard of proof) for temporary detention, to provide for this to take place in a secure facility in humane conditions to be as nearly as possible those appropriate for prisoners of war with appropriate psychiatric and education facilities and with i) provision for supervised departure forthwith if a country of origin or a third country is prepared to accept them (ii) six monthly status reviews before an appropriate tribunal to determine whether an individual still presents a national security threat; (iii) if there is no appropriate other country to which supervised departure/deportation is possible within 1 year, a process of phased insertion into the community to take place.
11.22.2008 4:03am
Public_Defender (mail):

He should not be permitted to jump the immigration line and enter this country.


Didn't we basically drag these guys blindfolded across the line? If we wrongfully snatched innocent men (and at lease a few of them will fit in that category), we owe them bigtime.
11.22.2008 6:05am
davod (mail):
"Bosnia is not a battlefield in the war on AQ unless you can prove some constructive control of that territory."

WTF does this meann?
11.22.2008 7:45am
Anderson (mail):
This is a fanatical enemy, not a band of armed lawyers. Most of its members are from cultures where fairness may just as likely seen as un-manly weakness as anything else.

First, prove that the enemy are untermenschen; then, of course, you can do whatever you like. Nice.

I seriously doubt that any al-Qaeda terrorist is more fanatical or more heavily indoctrinated than any Japanese soldier circa 1942-44, but we didn't resort to torture or abuse with them ... where they surrendered, which was rare.
11.22.2008 10:19am
jukeboxgrad (mail):
warner:

Your theory of the present administration's actions and motivations is not made more plausible by ignoring the question of the severity and nature of the threats those policies were intended to address


You haven't shown that anyone is "ignoring the question of the severity and nature of the threats those policies were intended to address." You also haven't shown that Bush et al did something other than grievously exaggerate and falsify "the severity and nature of the threats those policies were intended to address."
11.22.2008 10:46am
jukeboxgrad (mail):
soronel:

Sorry, but 'a sense' even by a two-star shunted out of his job just doesn't cut it.


You're basically telling us that your personal preference is to favor the Rush Limbaugh version of events, over the Gen. Taguba version of events. Even though only one of those people actually led the first investigation into what happened.

… low level soldiers already caught up in a shitstorm. They had every reason to try and shift some blame


OK, I get it. The little guys "had every reason to try and shift some blame" onto the big shots, but the same is not true in reverse. Makes perfect sense. Nice to see how you support the troops.

And please note that when big shots are interested in shifting blame downward, they typically have lots of power to do so (as compared with the opposite). By definition.

That report has been the topic of prior VC discussions, its impartiality on the topics leaves much to be desired.


As I said, the facts in the report are well-documented. Can you show us where anyone has lifted a finger to dispute those facts? You can start here to see several occasions when the report was mentioned at VC. What you will find is that the typical response (other than ignoring it) is to dismiss it reflexively (like you just did), while making no effort to challenge the underlying facts that are documented.

And let us know when you can find any similarly detailed study of the issue. Extra credit if there are no potential questions regarding "impartiality."
11.22.2008 10:46am
jukeboxgrad (mail):
moore:

give us a reason why Bush has such bizarre desires


There's nothing "bizarre" about the impulse to lock up people you don't like, even if they might be innocent. It's wrong, but it's not "bizarre." It's been happening since the beginning of time.

Aside from that, Bush indeed has a long track record as a bully and a sadist. google bush rugby punch. Then google bush frogs firecracker. Then google bush mocking karla faye tucker.

The most dangerous terrorists come from well educated and middle class backgrounds


You're describing the leaders. You're not necessarily describing the 'troops.' You're also not necessarily describing the social infrastructure that gives aid and support to both the leaders and the troops.

Their motivations have been studied and the treatment of prisoners by us is a very tiny part of that.


It's going to take years before we can see the full ramifications of "the treatment of prisoners by us." We've helped to create a whole new generation of enemies, and most of them are not quite ready to ring our doorbell.

why would the Bush administration hold these people if it knew they were innocent? We have captured thousands, but only hold a couple of hundred in Guantanamo. What was different about these folks?


Possibly nothing whatsoever. Once you create a facility like Gitmo, there's a lot of bureaucratic pressure to make sure it doesn't stay empty. Such a circumstance raises awkward questions. So we were in a hurry to put folks in there. And once folks are in there, there's a lot of bureaucratic pressure to avoid admitting that the reasons for putting them there were not very good.

You correctly pointed out that there is such a thing as "normal bureaucratic functioning."

It is likely that the Administration believed that they constituted a danger, and the judge simply disagreed


Except that this Administration has a long track record of making statements that turned out to be false, and the judge doesn't. Therefore the two views are not equal in credibility.

in trying to provide justice to those who deserve to be released, we run a very real risk of doing far more harm in release dangerous terrorists - if not these men, then others


You can apply the exact same reasoning with regard to criminals. Rapists and child abusers and serial killers are all indeed quite "dangerous." Nevertheless we still usually manage to avoid hysteria and uphold the importance of making sure innocent people are not locked up. Even though this means we accept some increment of risk, that "dangerous" people might go free.

These are basic principles of morality and humanity.

Would you care to explain how these vile people chose which of the innocent to release and which of the innocent to keep?


There are all sorts of perfectly plausible answers to a question like this. Maybe you release people at random, simply because there's a lot of institutional pressure to release people (because it's become widely understood that most of the people are innocent, but it's simply too awkward to release most of the people). Or maybe you release the people who you can place most easily in various countries. Or maybe you release the people who behave obnoxiously, and are a nuisance to manage. Or maybe you do the opposite of this. Or maybe you release the people where the absence of evidence is most brazen and offensive. Your question is not hard to answer.

So if I report that widely known cultural attitudes have relevance to this discussion, I have those attributes?


Your unsupported claim about what's "widely known" doesn't mean much. And your statements about fairness and weakness do indeed create the impression that you are revealing your own attitudes about fairness and weakness.
11.22.2008 10:46am
jukeboxgrad (mail):
luck:

So it is not suprising what they saw specially since they didn't had access to classified information...


Denbeaux based his conclusions on data that was released by DoD. Can you or anyone else dispute the underlying facts that he documented and presented? I've been asking that question here for over a year, and there's never been an answer.

You're basically saying that any facts you don't like can be reflexively dismissed, because you have faith that someone, somewhere, has some secret information which proves the opposite. Interesting approach to reality.
11.22.2008 10:47am
Oren:

"Bosnia is not a battlefield in the war on AQ unless you can prove some constructive control of that territory."

I mean that you cannot claim to have captured someone on the battlefield unless you they were captured in an area that is or was contested militarily. I cannot, at least for my part, rationalize designating detainees captured in Bosnia as being captured on the battlefield.
11.22.2008 10:58am
Oren:
JBG, its much preferable, IMO, to consider that Bush earnestly is trying to protect his country even if we disagree with the means. Calling him a sadist is so utterly counterproductive that I'm surprised you would stoop to such idiocy.
11.22.2008 10:59am
jukeboxgrad (mail):
oren:

its much preferable, IMO, to consider that Bush earnestly is trying to protect his country


Being realistic is more important than choosing what's "preferable." The various potential motivations are far from mutually exclusive, and "idiocy" is a good word for the impulse to imagine that they are. It's entirely possible "that Bush earnestly is trying to protect his country," and is also someone personally inclined to thuggery. The three incidents I cited are all remarkable, troubling, and undisputed. Those incidents should not be exaggerated, but they should also not be denied.

It's appropriate to assume perfect good faith until evidence appears to the contrary. Bush is in the latter category.
11.22.2008 11:15am
MarkField (mail):

Your choice of context is a crucial part of your approach. Your theory of the present administration's actions and motivations is not made more plausible by ignoring the question of the severity and nature of the threats those policies were intended to address or the need for information (including agent identity) security.


Well of course context is important. If the Bush Administration had followed its current policies and only the guilty had been seized, we wouldn't be having this argument. It's precisely because the Administration failed that we need to consider context. The whole point of procedural protections is that sometimes governments grab the wrong people. We need a way, one that's fundamentally fair, to sort those people.

I should add that the evidence of the Administration's behavior does not support a claim that it was following a well-designed policy. Instead, it seems to have rounded up the usual suspects out of panic. I actually understand that, up to a point, and would cut them or anyone some slack in the immediate aftermath of 9/11. All the more reason, though, to have procedural safeguards in place.

The Administration further destroyed its credibility by (a) refusing to acknowledge the need for any safeguards until forced to do so; and (b) abusing if not torturing the detainees. Without even getting into the argument about the "benefits" of torture for intelligence gathering, I assume that we all agree that there's no excuse whatsoever for abusing/torturing an innocent person. Yet the Administration's response has not been remorse or the acceptance of responsibility, but instead denial and the assertion of legal arguments so fatuous that the most conservative judges in the country are angered by them.

Nothing I've said in this thread or elsewhere, at any time, diminishes the threat we face. I may not think it as serious as some of the bedwetters here, but it is serious and we do need to deal with it. But we need to deal with it in a serious way, not with tough guy talk inspired by the dialogue of "24", but in a way that enhances American values instead of corrupting them.


The most dangerous terrorists come from well educated and middle class backgrounds, and have a history of being drawn into Islamist ideology by acquaintances. Al Qaeda has a very high percentage of engineers and other technical professionals. Their motivations have been studied and the treatment of prisoners by us is a very tiny part of that.


I wouldn't deny this, but it doesn't really answer my point. Yes, many of the worst do come from such backgrounds and are not persuadable by most reasonable means.* But lots of those who work for the hard core are not themselves unreachable. A good example is Hamdan, who was simply a driver. By an odd chain of circumstance, he ended up chauffering bin Laden. In a different world, he might well have turned down the job. That's who might be reached.

In addition, you need to consider the ecology of terrorists. To paraphrase the old adage, they're like fish in water. We need to deprive them of the tacit or actual support they get from the surrounding populations. Those populations can be persuaded; we see this time and again. I can't say this often enough: we will never succeed by multiplying our enemies, only by dividing them.


In this case in particular, the judge found, using normal US criminal justice procedures, that people captured outside of the US police system, outside of situations where normal evidence gathering would take place, and outside of our country, could not be proven to require detainment. That simply illustrates, as Mukasey writes, the difficulty of using our current inappropriate system. The judge did not find "no evidence" - the judge found "insufficient evidence/" Insufficient by which standard?

Perhaps the judge was right. Fine. But we need a system designed for these circumstances.


I'm not sure how to respond to this. It's untenable to claim that the judge's finding means that we need a better system. That's simply saying "I think these guys are guilty regardless of the facts".

As for a needing a better system, I'm open to suggestions. But what evidence do you think the government had which it was unable to provide to the court (remember that it got to do so ex parte)? The government itself has never suggested that it has double-secret evidence which it can't disclose even to the judge; it gave the judge what it had. Whatever that evidence was, it failed to show any reasonable basis for holding these men. There's no "tweak" to the system needed for such a case.


One needs to ask... why would the Bush administration hold these people if it knew they were innocent? We have captured thousands, but only hold a couple of hundred in Guantanamo. What was different about these folks?

It is possible that these particular detainees are being held for nefarious reasons - such as CYA by whoever caused their capture in the first place. Perhaps it is just normal bureaucratic functioning. It is likely that the Administration believed that they constituted a danger, and the judge simply disagreedt.


I pretty much answered this above. The Administration adopted policies which were likely to result in the seizure of innocent persons. We know this now for the obvious reason that even the Administration itself has released over half of those sent to Gitmo. We reasonably should have forseen this in advance because its tactics were those which, in the past, have had the same result.

We thus have the following facts: (1) The Administration adopted policies which were likely to result in false positives and which we know did result in false positives; (2) The Administration has admitted that many of these men were treated in ways which (my characterization) are abusive or torturous. So yes, I think that CYA and bureaucracy are better explanations than the suggestion that an extremely conservative judge, one appointed by Bush himself, arbitrarily decided to release dangerous individuals.

*Surely you'd agree they're persuadable to some extent. After all, they don't go around flying planes into Nepalese skyscrapers.
11.22.2008 11:17am
Litigator - Madrid (mail):
Litigator - London:

I was hoping you might answer a personal question, are you over 60?

It's just that I have a theory about the relationship between age, length//frequency of postings, and responses to such postings. I'm worried I'll be one sigma out on the right one day.
11.22.2008 11:33am
Ken Arromdee:
we will never succeed by multiplying our enemies, only by dividing them.


But if we set up zones dedicated to ethnic groups around their homes, and make sure the zones have four equal sides, then they could have square roots.

I never believed in proof by pun.
11.22.2008 11:50am
Litigator-London:
Anderson: Re your 10.19 am

Those who have "graduated" from the training camps are as fanatical as they come - in effect 'kamikaze' prepared to immolate themselves for the cause - brinwashed (cult fashion) into the belief that by so doing they will enter paradise. Unless deprogrammed, they are potentially very, very dangerous. So in effect, within the detainee population you might have (i) the wholly uninvolved, (ii) the criminal,(iii) the fanatic and (iv) the status uncertain.

We know not who may be in 'black holes' as yet unrevealed, but as for as Guantanamo, one would expect the Administration to have a very good idea of the category into which each fits.

Now the situation of the Algerian/Bosnians is instructive (i) because they had already been acquitted in Bosnia and were illegally snatched from there and (ii) because for some months the Administration has been trying to send them to Algeria but with a demand that the Algerians commence proceedings against them, withdraw their passports and place them in detention - which the Algerian government has refused to do because there is no evidence to justify that course being taken.

Now a US District Court Judge has found after sight of everything the Government chose to provide has held there was no cause to detain in 5 of the 6 cases. After 7 years!

At the conclusion of the hearing Judge Leon said:

"The Court appreciates fully that the Government has a right to appeal its decision as to these five detainees whose petitions I have granted. I have a right, too, to appeal to the senior-most leadership at the Department of Justice, Department of Defense, and the CIA and other intelligence agencies. My appeal to them is to strongly urge them to take a hard look at the evidence, both presented and lacking, as to these five detainees. Seven years of waiting for our legal system to give them an answer to a question so important, in my judgment, is more than plenty. The appellate process for these five detainees would, at a minimum, constitute another 18 months to two years of their lives. It seems to me that there comes a time when the desire to resolve novel, legal questions and decisions which are not binding on my colleagues pales in comparison to effecting a just result based on the state of the record.".

Read that as judicial code for "You have no case, you never had one, and you damn well ought to have known that a long time ago and certainly before you chose to defend this application".

Unsurprisingly in the immediate aftermath of 9-11 the judiciary started out being very, very deferential to the executive.

But were I a judge, I would be beginning to draw inferences from the way the Administration has behaved as a number of cases have approached crunch time. The Boumedienne case is not the only one where assertions of a strong case have evaporated into thin air.

In those circumstances Judge Mukasey's assertions that everything has been done "in good faith" ring hollow, don't they?
11.22.2008 12:22pm
MikeS (mail):

Beyond that, how do you explain the release of a significant number detainees who subsequently were found back in combat against us?


Are you really asking why people who were kidnapped and held incommunicado for indefinite periods that turned into years, all the while suffering abuse and torture, would wind up enemies of the country that did this to them?

Anyway, this "significant" number has been, unsurprisingly, exaggerated for polemical effect:

As we developed in detail in The Meaning of “Battlefield,” these other “recidivists”
included the Tipton Three (who recounted their Guantánamo experiences for Michael
Winterbottom’s commercial film, The Road to Guantánamo) whose speech was apparently
viewed as problematic and five (5) Uighur’s who remained detained in a refugee camp in
Albania but who had an editorial submitted on their behalf which was critical of the US
Guantánamo policy.
11.22.2008 12:36pm
jukeboxgrad (mail):
madrid:

I have a theory about the relationship between age, length//frequency of postings, and responses to such postings


I realize you addressed someone else, but I'll chime in with an opinion. I care a lot about the relevance and quality of what someone writes, and not very much about whether their comments happen to be short or long. Therefore I would encourage you to emulate him, and not the other way around.
11.22.2008 12:58pm
David Warner:
Oren,

"JBG, its much preferable, IMO, to consider that Bush earnestly is trying to protect his country even if we disagree with the means. Calling him a sadist is so utterly counterproductive that I'm surprised you would stoop to such idiocy."

This tactic has proven itself neither counterproductive nor idiotic for those who have employed it over the past 7 years. I surprised that you would be surprised, as JBG has shown himself to be a master in the league of Rove at mere tactics. At this point*, however, I'm more concerned with strategy than tactics.

* - in anticipation of Jan 20th
11.22.2008 1:26pm
Potted Plant (mail):
JukeBoxGrad -- There are enough legitimate examples of Bush's poor judgment or behavior; don't bother with the "rugby punch" example. It's pretty clear that the photo shows not a punch, but a high tackle from behind, where the ball carrier suddenly stopped and Bush was trying to hang on to the carrier as Bush's momentum carried him past the carrier. The angle of Bush's body and the fact that both his feet were off the ground demonstrate that he wasn't throwing a punch, although a superficial glance makes it appear as if he was.

Also, there's really no reasonable opportunity to throw a punch from a headlock position at a ball carrier in rugby, since the ball carrier is usually running full speed.

In short, while the photo is real, it doesn't show what you argue it does.
11.22.2008 2:05pm
John Moore (www):
@Anderson

First, prove that the enemy are untermenschen; then, of course, you can do whatever you like. Nice.

I seriously doubt that any al-Qaeda terrorist is more fanatical or more heavily indoctrinated than any Japanese soldier circa 1942-44, but we didn't resort to torture or abuse with them ... where they surrendered, which was rare.


Bad analogy. The Japanese soldier was part of an organized (iv vicious) military of a sovereign nation. He wore a uniform. He did not have potential access to weapons of mass destruction.

BTW, the untermenschen assertion is incorrect and offensive. It also violates the blog rules of good sense: never drag in the Nazis!

@jukeboxgrad

Your entire argument about Bush's motives seems to be that Bush is bad, so he does random silly and evil things.So Bush likes to imprison innocent people, perhaps because it's aTexas red-neck party trick or something. In other words, if you can't show a motive, assert that none is needed.

There's nothing "bizarre" about the impulse to lock up people you don't like, even if they might be innocent. It's wrong, but it's not "bizarre." It's been happening since the beginning of time.


So Bush somehow took a dislike to these few foreigners, of the billions of folks on earth, and locked them up. And it's not bizarre - people have been doing it for a long time. Right.

You're describing the leaders. You're not necessarily describing the 'troops.' You're also not necessarily describing the social infrastructure that gives aid and support to both the leaders and the troops.


Take a look at the background of people who carry out terror in the west: the 9-11 hijackers, the British subway bombers, etc. It matches the profile. Even Palestinian suicide bombers have higher average income and education than Palestinians in general. For that matter, look at what passes for media in the Middle East - it often makes no difference what you really do - it's what Al Jazeera (and many others) say you did.

Once you create a facility like Gitmo, there's a lot of bureaucratic pressure to make sure it doesn't stay empty. Such a circumstance raises awkward questions. So we were in a hurry to put folks in there. And once folks are in there, there's a lot of bureaucratic pressure to avoid admitting that the reasons for putting them there were not very good.


That doesn't square with the facts. We had a lot of these folks before Gitmo. We released a whole bunch from Gitmo, so that its population is down substantially from the peak.

And your statements about fairness and weakness do indeed create the impression that you are revealing your own attitudes about fairness and weakness


Do you deny that there are substantial cultural differences between Western values and Middle Eastern values? Are you aware of the deep divide in some areas? Is it "projecting" to take into account well known(except for you, I guess) characteristics of those cultures?

You can apply the exact same reasoning with regard to criminals. Rapists and child abusers and serial killers are all indeed quite "dangerous."


But with criminals, we have a long established system for dealing with them - from investigation to apprehension to adjudication to imprisonment. Critically, the system for investigation and apprehension are molded to fit our judicial environment. That cannot be done for the Gitmo detainess, because of the dramatic differences in circumstances.
11.22.2008 2:41pm
MarkField (mail):

I never believed in proof by pun.


But I'm sure you do believe that there's a difference between an aphorism and a pun.
11.22.2008 3:19pm
John Moore (www):
As for a needing a better system, I'm open to suggestions. But what evidence do you think the government had which it was unable to provide to the court (remember that it got to do so ex parte)? The government itself has never suggested that it has double-secret evidence which it can't disclose even to the judge; it gave the judge what it had. Whatever that evidence was, it failed to show any reasonable basis for holding these men. There's no "tweak" to the system needed for such a case.


There is both the issue of classified evidence, and the issue of the quality of the evidence and the procedures used to obtain it? Do normal exclusionary rules prevail in this case? If so, that's really dumb. So one anwer to your question is to have a system with standards of evidence proportional to the situation - classification, difficulty in acquiring evidence, difficulty in proving validity of evidence, etc.

As to classified evidence, anyone who has ever worked with classified material knows that a mere security clearance is just one of the steps needed to secure it. Another principle, especially critical in intelligence areas and areas of controversy, is to limit the number of people who get access to the information (need to know). Every time you add a "cleared" judge and a "cleared' lawyer, you increase the risk of release of that information.

To give an example of how critical intelligence data is protected, consider the Coventry Bombing of WW-II. Churchill knew, from decrypted German messages, that they planned a devastating revenge raad on Coventry, and he knew when. However, the fact that these messages were decryptable (see ULTRA) was so important that Churchill decided not to warn Coventry, at a potential cost of thousands of civilian deaths - of his own people.

Another issue is how to weight the harm of false positives and false negatives under these radically different conditions.

(1) The Administration adopted policies which were likely to result in false positives and which we know did result in false positives; (2) The Administration has admitted that many of these men were treated in ways which (my characterization) are abusive or torturous. So yes, I think that CYA and bureaucracy are better explanations than the suggestion that an extremely conservative judge, one appointed by Bush himself, arbitrarily decided to release dangerous individuals.


In the situation the country found itself in, it was appropriate to choose false positives over false negatives. If you put your mind back to 2002, you would see the country strongly supported our approach or more extreme modes of operation. That some of the men were subjected to harsh interrogation was likewise appropriate to the situation. Note that the harsh interrogation was significantly reduced as the immediate anxiety waned, the threat ebbed, and enough intelligence was gathered to be much more selective in both who was captured and who was strongly interrogated.

I don't assert that mistakes were never made or that things could have been done better. Good grief, a quick look at history shows that wars always have excesses (the allied bombings of civilian centers in Germany?) and enormous mistakes are made (Churchill's Gallipoli campaign).

To complicate matters further, there are a number of categories who deserve treatment other than that of suspected terrorists.

The Taliban and Islamist terrorist groups including Al Qaeda are allies and are our enemy. However, their makeup and goals are different.

Most members of the Taliban are best treated as low ranking soldiers, or mercenaries. Al Qaeda members, however, are part of a fanatical terrorist conspiracy, and are all likely to be dangerous. For example, Bin Laden is unlikely to want even a driver who does not share his fanatical goals - for security reasons.

Another category is detainees who have honestly changed their viewpoint while in Guantanamo.

Finally, we have the really strange cases like the Uighur.

@Oren
JBG, its much preferable, IMO, to consider that Bush earnestly is trying to protect his country even if we disagree with the means. Calling him a sadist is so utterly counterproductive that I'm surprised you would stoop to such idiocy.


Succinctly and well put! You have isolated the central issue underlying too much of the controversy..
11.22.2008 3:23pm
Oren:

Every time you add a "cleared" judge and a "cleared' lawyer, you increase the risk of release of that information.

You are coming very close to accusing the bar and bench of either gross negligence in the handling of classified material or, worse, willful disclosure of same. These judges and lawyers are just as patriotic and worthy of clearance as anyone at the DOD, NSA and CIA. Denigrating them in this manner is not helping your argument.


Finally, we have the really strange cases like the Uighur.

To me, it's actually quite clear cut -- they are not and have never had any intent of waging war on the USA. Therefore they fail to be included in the 9-11 AUMF and must be released immediately (failing that, Congress can amend the AUMF to include groups waging war on China, in which case I imagine we'd have to arrest most of the Tibetan exile community).
11.22.2008 3:43pm
Litigator - Madrid (mail):
Jukebox,

No malice on my part. I was simply thinking about the way different people interact with the internet. Would you want everyone who wrote his/her senior thesis on a subject related to the post to include the entire text in their post, even if it were relevant and insightful? Should I copy and paste all of a WSJ opinion piece that I think is relevant? I didn't say LL COULDN'T or SHOULDN'T post a five part treatise in the comments section. I said I had a THEORY about age and the way people post. Younger people would be, in my theory, more likely to make a short opinion and link it to somewhere else with the full text (personal blog, newspaper), whereas older people seem to include everything in their posts.
11.22.2008 3:46pm
Oren:


Succinctly and well put! You have isolated the central issue underlying too much of the controversy..


Thanks for the compliment, of course, but is that really the central issue? I see BDS and its variants as distracting from the main issue -- how can we neutralize AQ in a manner most consistent with our core values.
11.22.2008 3:50pm
John Moore (www):
@oren

You are coming very close to accusing the bar and bench of either gross negligence in the handling of classified material or, worse, willful disclosure of same. These judges and lawyers are just as patriotic and worthy of clearance as anyone at the DOD, NSA and CIA. Denigrating them in this manner is not helping your argument.


Sorry I was not more clear.

I did not mean to impugn those judges and lawyers. My point was that adding ANY "cleared" people at any time increases security risks. This is a *fundamental* axiom of security.


Thanks for the compliment, of course, but is that really the central issue? I see BDS and its variants as distracting from the main issue -- how can we neutralize AQ in a manner most consistent with our core values.


Sigh. I meant the central problem of the controversy. The problem remains as you stated - the key word being *most* in "most consistent" as opposed to many who would use "absolutely."
11.22.2008 5:33pm
MarkField (mail):

There is both the issue of classified evidence, and the issue of the quality of the evidence and the procedures used to obtain it?


Oren responded to this as I would. Lawyers and judges deal with confidential material all the time. I see no problem in demanding security clearances for those involved in these cases.


Do normal exclusionary rules prevail in this case?


You're over-analyzing this. The basic rule is simple: the procedure must be fundamentally fair in light of the circumstances. That doesn't mean that all the rules applicable in the US need apply; that's obviously silly when someone is actually seized on a battlefield. But rules against torture, for example, must apply.


In the situation the country found itself in, it was appropriate to choose false positives over false negatives.


As I said above, I understand that within some limits. The very fact that this is a natural reaction to emergencies is precisely why we have rules of procedure to rectify the mistakes as soon as possible. The Bush Administration refused to even acknowledge this, much less agree.


That some of the men were subjected to harsh interrogation was likewise appropriate to the situation.


No, there is no excuse for this. Not ever.


For example, Bin Laden is unlikely to want even a driver who does not share his fanatical goals - for security reasons.


From everything we know of Hamdan -- and that's quite a bit at this point -- your assumption is not true. Hamdan was just a driver. That's why he's due for release in January.
11.22.2008 5:43pm
David Warner:
Oren,

"Thanks for the compliment, of course, but is that really the central issue? I see BDS and its variants as distracting from the main issue -- how can we neutralize AQ in a manner most consistent with our core values."

Yep, yep. I'd say we also need to look beyond AQ.
11.22.2008 5:43pm
Oren:

Yep, yep. I'd say we also need to look beyond AQ.

Absolutely agreed, just make sure to ask Congress for an AUMF (if they aren't already covered in the current one).
11.22.2008 5:58pm
Eli Rabett (www):
Oren asks what the central issue is, well it is the same issue as confronted Japanese and German people after WWII, and the communists/Russians after the fall of the Soviet Union, the white South Africans after their government collapsed and more, the necessity of admitting that evil things were done by your government in your name, and figuring out how to make amends.

Given the history of the US with respect to Native Americans, black slaves (after the civil war) and blacks after the fall of Jim Crow, one cannot be optimistic. The refusal to face facts is a clue. It has been repeatedly pointed out that Judge Leon finds there was no reason to hold these people and there is no reason to hold these people.

Before the outraged screams of "we were attacked" start, Eli would remind you that other people's bad behavior is no excuse for yours.
11.22.2008 6:54pm
Richard Aubrey (mail):
John Moore.
Juke is a liberal. It is not at all uncommon when pointing out something nasty to be accused of favoring it.
I have no idea why they think it's useful, but they certainly seem to think it makes a point.
Whatever it is.
11.22.2008 7:09pm
Anderson (mail):
Bad analogy. The Japanese soldier was part of an organized (iv vicious) military of a sovereign nation. He wore a uniform. He did not have potential access to weapons of mass destruction.

Yes, and the Japanese soldier also had narrower eyes. None of which comes anywhere near to a justification for torture or for denial of fundamental due process.

As for the Nazis, I quaintly think that the Nazis remain relevant when people on the internet are arguing in favor of ACTING LIKE NAZIS.

Though I'm sure that those people would love to forbid any comparisons to the Nazis.
11.22.2008 7:27pm
Oren:
Anderson, it's not that Nazi references are forbidden, it's that they are the end of the discussion -- nobody reasons with a Nazi. You are discounting anything anyone else has to say about the matter before even hearing it.

Eli, stipulating to whatever sins you want, I still have no idea how to craft the policy that most effectively balances military need with judicial norms.
11.22.2008 8:10pm
John Moore (www):
I strongly agree we need to look beyond AQ. This is not just a war with AQ. It is a war against jihadist Islamists, and we need to make that clear.

It is not a war against a tactic ("terrorism") but rather those who threaten major damage to us through the combination of that age old tactic and modern technology. Unfortunately, while jihadist Islamists are the most dangerous and numerous current enemy, even if that threat dies, the threat of WMD terrorist attacks remains, with the concomittant need to be pre-emptive.

It is also not clear what sort of authorization Congress needs to provide and an administration needs to seek.

The Cold War, in which we were far more vicious (but terribly tame compared to our adversary), did not have an AUMF, although theaters of conflict (Vietnam and Korea) presumably did.

When only part of the battle is military, how do you deal with the rest of it - such as the controversial counter-intelligence techniques? Is the CIA using a predator to launch missiles against a target in a country we are not at war with covered by an AUMF? I think more is needed.

We need to respect the tripartite nature of our government, but we also should avoid shoving this unusual conflict into the wrong category.


@Anderson
I suggest you study at least a little bit of history, before you start asserting equivalencies between my position and that of Nazi's. A sense of proportion appears to be utterly lacking in your reasoning.

Though I'm sure that those people would love to forbid any comparisons to the Nazis.

No, we don't want to prohibit our opponents from demonstrating the weakness of their reasoning.
11.22.2008 8:10pm
John Moore (www):

@Eli Rabett
Given the history of the US with respect to Native Americans, black slaves (after the civil war) and blacks after the fall of Jim Crow, one cannot be optimistic.


Give it a rest. That is such a poor way to judge or predict the behavior of modern America that I am amazed you would mention it. Shall we next predict the Italians' behavior because they used to crucify people?

@Richard Aubrey
I confess to having used a similar tactic in this discussion, wondering whether the odd motives attributed to the Bush Administration by its harsher critics are not indicative of what they would do in that position. Sometimes it's a valid supposition.
11.22.2008 8:12pm
John Moore (www):
@Oren

I still have no idea how to craft the policy that most effectively balances military need with judicial norms.


That's a good starting point. But I think we need to include intelligence, counter-intelligence and covert action in the mystery, as they play a greater part in this war than any previous one.

Our reaction in the Cold War, btw, was to so hobble our intelligence agencies that they became worthless for all but technical intelligence. CIA HUMINT was effectively destroyed by the Church Committee's over-reaction, grandstanding and scapegoating. The Clinton Administration rule preventing field officers from recruiting various foreign undesirables as informants was insane. One of the CIA's most effective officers in Latin America had his career destroyed by John Kerry, who seemingly never met an enemy of the US he didn't like.

That's the sort of thing that happens when people are more afraid of embarrassment in front of the European elite than they are with the need for that dirty business called espionage.
11.22.2008 8:19pm
jukeboxgrad (mail):
potted:

The angle of Bush's body and the fact that both his feet were off the ground demonstrate that he wasn't throwing a punch, although a superficial glance makes it appear as if he was


In other words, I shouldn't believe what I can see with my lying eyes.

The photo is here. I see a man's fist very close to another man's nose. It looks like a punch to me. Saying it's not a punch is kind of like saying you're upset about the damage I did to your fist when I struck it with my nose.
11.22.2008 8:38pm
jukeboxgrad (mail):
moore:

In other words, if you can't show a motive, assert that none is needed.


I didn't say that "none is needed," and I haven't failed to show a motive. A very plausible scenario is that Bush thought he was protecting his country from dangerous, evil people, and also that Bush is someone who doesn't care much about playing by the rules, respecting the rule of law, or acting humanely and morally. Which means he was inclined to be too comfortable erring in the direction of imprisoning and abusing innocent people, when the time came to make careful choices in that regard.

Is it "projecting" to take into account well known(except for you, I guess) characteristics of those cultures?


Proof is always helpful. I guess you don't have any. By the way, a "well known" characteristic of our own culture is our willingness to let ourselves off the hook by practicing denial, and by exempting ourselves from the rules we want to apply to everyone else. As Eli said:

Given the history of the US with respect to Native Americans, black slaves (after the civil war) and blacks after the fall of Jim Crow, one cannot be optimistic. The refusal to face facts is a clue.


Unfortunately that history is still quite relevant, because we still see a distinct "refusal to face facts," and we still see a distinct disrespect for the rights of others.
11.22.2008 8:39pm
jukeboxgrad (mail):
madrid:

Would you want everyone who wrote his/her senior thesis on a subject related to the post to include the entire text in their post, even if it were relevant and insightful?


I see your point, and it's a fair point. But in my case, the answer is yes, if the material is truly both "relevant and insightful," and also not available elsewhere. Recycled electrons are cheap, and scrolling is easy.

Should I copy and paste all of a WSJ opinion piece that I think is relevant?


I think we're talking about a fundamentally different situation if the material is already available elsewhere. Then I think pasting the whole thing in is almost always inexcusable.

I didn't say LL COULDN'T or SHOULDN'T post a five part treatise in the comments section.


I thought you were implying that, but if I misinterpreted you, that's my mistake.
11.22.2008 8:39pm
jukeboxgrad (mail):
moore:

It is not a war against a tactic ("terrorism") but rather those who threaten major damage to us through the combination of that age old tactic and modern technology. Unfortunately, while jihadist Islamists are the most dangerous and numerous current enemy, even if that threat dies, the threat of WMD terrorist attacks remains, with the concomittant need to be pre-emptive.


In the long run, we're not going to be safe without winning lots of hearts and minds (which doesn't mean that bad guys no longer exist; it just means they find it much harder to achieve deep, sustained supported from their surrounding communities). Unfortunately, our current policies achieve the exact opposite of that.

We make the problem worse when we act as if force is the universally proper and sufficient solution.

A sense of proportion appears to be utterly lacking in your reasoning.


I think the one who lacks "a sense of proportion" is you. We currently spend as much on defense as the rest of the world combined. Nevertheless, you're essentially taking the position that a bunch of nuts in a cave represent an existential threat to us. That's silly. They are only that if we let them do what they've actually managed to do: get us to bankrupt ourselves by spending money we don't have on a war we don't need.

They're smart enough to realize that they don't need to destroy us by blowing up our buildings. They can destroy us more effectively by getting us to run up a huge credit-card bill with China. And by getting us to isolate ourselves internationally, which is what happens when we treat the rest of the world as inferior to ourselves.
11.22.2008 8:39pm
Anderson (mail):
You are discounting anything anyone else has to say about the matter before even hearing it.

Well, yes. When people are comfortable with locking up folks for seven years on no plausible evidence, or torturing prisoners to make them talk, then I discount their justifications. What do *you* do?

Anyone can toss around gobbledygook about Unique Threats Never Before Faced by Man, but the bottom line remains that any intel worth acting on is going to meet minimum standards for denying a habeas claim, and that torturing people is a second-rate method for finding out about threats to our security.

Our national security is too important to trust to macho torture fans like Cheney and Addington, or to the spineless bureaucrats like Tenet who skip to their masters' tune. We need an intel operation run by grown-ups who pay some attention to what works best.

Perhaps the single best clue that the federal government is not serious about our national security is the absence of major investment in Arabic language/culture education. The feds should be tossing some of their billions in that direction, to give us a broader pool of potential diplomats, analysts, spies, etc., not to mention other evident benefits.
11.22.2008 8:45pm
John Moore (www):

In the long run, we're not going to be safe without winning lots of hearts and minds (which doesn't mean that bad guys no longer exist; it just means they find it much harder to achieve deep, sustained supported from their surrounding communities). Unfortunately, our current policies achieve the exact opposite of that.


History would seem to indicate that minds hearts and minds are harder to win than people are to defeat in warfare. But a reasonable approach would combine actions in all areas - public diplomacy, counter-espionage and warfare - with constraints as appropriate


We make the problem worse when we act as if force is the universally proper and sufficient solution.


Yes, if we indeed did that, we would indeed make the problem worse. But we don't, we just get accused of it.

We currently spend as much on defense as the rest of the world combined. Nevertheless, you're essentially taking the position that a bunch of nuts in a cave represent an existential threat to us. That's silly. They are only that if we let them do what they've actually managed to do: get us to bankrupt ourselves by spending money we don't have on a war we don't need.

They're smart enough to realize that they don't need to destroy us by blowing up our buildings. They can destroy us more effectively by getting us to run up a huge credit-card bill with China. And by getting us to isolate ourselves internationally, which is what happens when we treat the rest of the world as inferior to ourselves


How many ways is this wrong... let me count... aw, never mind. A few facts:

1) Our defense spending as a percentage of our GDP is near record post-depression lows.

2) We are a unique target, and a lot of the world free-rides on our military's back.

3) The bunch of nuts include a lot of engineers, physicians and (until we caught her) a highly trained virologist. They represent a serious threat. 9-11 is just the start.
4) Al Qaeda isn't getting us to run up a huge credit-card bill with China, as my statistic about defense spending shows. That's our own actions.
5) We are not isolated internationally. We are a handy scapegoat for the European elite. You may care. I say "screw 'em"
11.22.2008 9:00pm
MarkField (mail):
I agree with Anderson that Nazi references are perfectly appropriate, indeed necessary, when discussing things like torture. The point to be kept in mind is that the reference is not to the extent of Nazi crimes, but to their essential evil on an individual level. Still, if it really bothers people to read the Nazi references, I'd be happy to switch to Stalin or Mao, they being the sources of the CIA techniques under discussion.
11.22.2008 9:27pm
RPT (mail):
"Mr. Moore:

So one anwer to your question is to have a system with standards of evidence proportional to the situation - classification, difficulty in acquiring evidence, difficulty in proving validity of evidence, etc."

And, of course, it is ok to have the current administration's standard of "lock 'em up with no evidence whatsoever just because we can".

Certain things are always wrong and never justified. As you will see in the new January episodes, Jack Bauer does not hesitate to acknowledge before the Congressional hearing that what he did was illegal and that he should be punished for it. That is an honesty and integrity, however fictional, which the current perpetrators do not share.
11.22.2008 10:09pm
jukeboxgrad (mail):
moore:

a reasonable approach would combine actions in all areas - public diplomacy, counter-espionage and warfare - with constraints as appropriate


Fair enough. In my opinion, our recent policy did not intelligently "combine actions in all areas," and did not apply "constraints as appropriate."

Our defense spending as a percentage of our GDP


Why is "percentage of our GDP" the relevant measurement? Military spending, when measured in inflation-adjusted dollars, is at its highest level since WWII. We're a lot richer than we once were (when measured in a certain way), so therefore a lot more money has to be spent keeping ourselves safe? It's a bit like saying I've doubled my income, so therefore I need to eat twice as much food. It's a non sequitur. The appropriate level of spending is what's needed to keep us safe, not what we can manage to afford because we have more money than we used to (by certain measurements).

What is the rational basis for believing that we're not safe unless we spend as much as everyone else put together (because that's what we're doing, currently)? What magically makes that the right number? And how do you know the right number isn't 2x or 5x that number? And how do you know the right answer isn't 0.5x? What number would we come up with if we applied the concept of zero-based budgeting?

a lot of the world free-rides on our military's back


Why are we obliged to accept that scenario? I think we accept it mostly because it helps certain people get rich.

The bunch of nuts include a lot of engineers


We used to face thousands of ICBMs, with over 10,000 warheads. Try applying some perspective.

Al Qaeda isn't getting us to run up a huge credit-card bill with China, as my statistic about defense spending shows. That's our own actions.


The real cost of the war, in the long run, is probably somewhere in the vicinity of $1-3 trillion (e.g., we have a lot of vets we're going to be taking care of for a long time, and we have a lot of equipment that's completely worn out). Treating that as something other than very serious money is another example of how you've lost your perspective.

We are not isolated internationally


More denial. Anti-Americanism is growing. That ultimately costs us, in many different ways.
11.22.2008 10:30pm
CharleyCarp:
Plenty of errant nonsense above, little of which is worth responding to. I'd note, though, that releases from GTMO have not been based on finings on innocence, or that someone isn't a combatant. It's a completely different criteria. Second, when you hear policy makers talk about classified information, remember that the following, if in a prisoner's file, would be classified:

Interrogator: What does your father do for a living?
Prisoner: He is a stone cutter from Taiz.
11.23.2008 12:32am
John Moore (www):
@jukeboxgrad

I'm not going to debate the Iraq war with you. It's way off subject.

We used to face thousands of ICBMs, with over 10,000 warheads. Try applying some perspective.


We dealt with that threat by spending huge amounts of money. We still deal with that still existing threat by spending huge amounts of money, among other things.

HOWEVER, nobody has ever nuked us. Does that mean we shouldn't try to prevent it?

The perspective that's appropriate here is recognizes the real change in circumstances. No matter how much people try to ignore it, the real danger (from terrorism) is not another 9-11, it is a WMD attack or other attack using unprecedented force multiplication - of which 9-11 was a small version but demonstrated the principle.

The experts in the field of terrorism are genuinely worried about two things: nuclear terrorism and biological attacks. Both could be devastating - damage beyond anything the US has ever faced before. Both are or will be within the reach of terrorists - especially bio attacks.

You assert that since the Islamists do not threateneus with nuclear destruction, they do not constitute a threat worth spending lots of money on. Would you say that after they nuked downtown Manhattan or loosed a contagious, bio-engineered virus on us? Do you deny the real possibility of either of those within the next 10 years?

What is the rational basis for believing that we're not safe unless we spend as much as everyone else put together (because that's what we're doing, currently)? What magically makes that the right number?


There is no rational basis for believing that formulation forever. Why do you bring it up? Do you think security can be readily measured in dollars.

As for anti-Americanism, it has been growing since well before the start of the WOT. It had reached significant levels under Clinton, the most Euro-elite friendly President I can remember. But the question is the level of import of that anti-Americanism. Does it translate into objective problems for us, or is it just a natural reaction to our existence?

As far as I can tell, the thing that riles up middle eastern Muslims the most is our television programming, not our foreign policy. Think about that a bit.
11.23.2008 12:46am
John Moore (www):
@RPT...

There you go again...
And, of course, it is ok to have the current administration's standard of "lock 'em up with no evidence whatsoever just because we can


Nonsense.
11.23.2008 12:48am
jukeboxgrad (mail):
Does it translate into objective problems for us, or is it just a natural reaction to our existence?


Anti-Americanism does indeed "translate into objective problems for us," because the kind of problems that you're describing are going to be much more difficult to solve to the extent that we need to solve them alone. Thinking we don't need allies is a dangerous form of foolishness. What we've been doing is converting allies into enemies. That process must be reversed.

And if Anti-Americanism was "just a natural reaction to our existence," it would not have gotten dramatically worse in the last few years. Trouble is, it has.
11.23.2008 1:42am
Litigator-London:
It seems to me that a lot of the comments above proceed from adoption of two false premises (i) that one can legally have a state of war against a non sovereign state and (ii) that Al Quaida style terrorism poses a significant threat to "the life of the nation".

Taking the second proposition first, atrocious as 9-11 was, as were the Madrid train bombings or the London Underground bombings, while they were undoubtedly criminal acts committed with terrorist motives, is there a threat to the life of our respective nations?

This was discussed by the UK House of Lords in A &Ors v. Secretary of State for the Home Department [2004] UKHL 56 and I would invite reflection on these words in the speech of Lord Hoffman:

"Freedom from arbitrary arrest and detention is a quintessentially British liberty, enjoyed by the inhabitants of this country when most of the population of Europe could be thrown into prison at the whim of their rulers. It was incorporated into the European Convention in order to entrench the same liberty in countries which had recently been under Nazi occupation. The United Kingdom subscribed to the Convention because it set out the rights which British subjects enjoyed under the common law.

The exceptional power to derogate from those rights also reflected British constitutional history. There have been times of great national emergency in which habeas corpus has been suspended and powers to detain on suspicion conferred on the government. It happened during the Napoleonic Wars and during both World Wars in the twentieth century. These powers were conferred with great misgiving and, in the sober light of retrospect after the emergency had passed, were often found to have been cruelly and unnecessarily exercised. But the necessity of draconian powers in moments of national crisis is recognised in our constitutional history. Article 15 of the Convention, when it speaks of "war or other public emergency threatening the life of the nation", accurately states the conditions in which such legislation has previously been thought necessary.

Until the Human Rights Act 1998, the question of whether the threat to the nation was sufficient to justify suspension of habeas corpus or the introduction of powers of detention could not have been the subject of judicial decision. There could be no basis for questioning an Act of Parliament by court proceedings. Under the 1998 Act, the courts still cannot say that an Act of Parliament is invalid. But they can declare that it is incompatible with the human rights of persons in this country. Parliament may then choose whether to maintain the law or not. The declaration of the court enables Parliament to choose with full knowledge that the law does not accord with our constitutional traditions.

What is meant by "threatening the life of the nation"? The "nation" is a social organism, living in its territory (in this case, the United Kingdom) under its own form of government and subject to a system of laws which expresses its own political and moral values. When one speaks of a threat to the "life" of the nation, the word life is being used in a metaphorical sense. The life of the nation is not coterminous with the lives of its people. The nation, its institutions and values, endure through generations. In many important respects, England is the same nation as it was at the time of the first Elizabeth or the Glorious Revolution. The Armada threatened to destroy the life of the nation, not by loss of life in battle, but by subjecting English institutions to the rule of Spain and the Inquisition. The same was true of the threat posed to the United Kingdom by Nazi Germany in the Second World War. This country, more than any other in the world, has an unbroken history of living for centuries under institutions and in accordance with values which show a recognisable continuity.

This, I think, is the idea which the European Court of Human Rights was attempting to convey when it said (in Lawless v Ireland (No 3) (1961) 1 EHRR 15) that it must be a "threat to the organised life of the community of which the State is composed", although I find this a rather dessicated description. Nor do I find the European cases particularly helpful. All that can be taken from them is that the Strasbourg court allows a wide "margin of appreciation" to the national authorities in deciding "both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it": Ireland v United Kingdom (1978) 2 EHRR 25, at para 207. What this means is that we, as a United Kingdom court, have to decide the matter for ourselves.

Perhaps it is wise for the Strasbourg court to distance itself from these matters. The institutions of some countries are less firmly based than those of others. Their communities are not equally united in their loyalty to their values and system of government. I think that it was reasonable to say that terrorism in Northern Ireland threatened the life of that part of the nation and the territorial integrity of the United Kingdom as a whole. In a community riven by sectarian passions, such a campaign of violence threatened the fabric of organised society. The question is whether the threat of terrorism from Muslim extremists similarly threatens the life of the British nation.

The Home Secretary has adduced evidence, both open and secret, to show the existence of a threat of serious terrorist outrages. The Attorney General did not invite us to examine the secret evidence, but despite the widespread scepticism which has attached to intelligence assessments since the fiasco over Iraqi weapons of mass destruction, I am willing to accept that credible evidence of such plots exist. The events of 11 September 2001 in New York and Washington and 11 March 2003 in Madrid make it entirely likely that the threat of similar atrocities in the United Kingdom is a real one.

But the question is whether such a threat is a threat to the life of the nation. The Attorney General's submissions and the judgment of the Special Immigration Appeals Commission treated a threat of serious physical damage and loss of life as necessarily involving a threat to the life of the nation. But in my opinion this shows a misunderstanding of what is meant by "threatening the life of the nation". Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

"Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governours"

This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda. The Spanish people have not said that what happened in Madrid, hideous crime as it was, threatened the life of their nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community"
.

I think those were wise and prescient words which apply just as much to the USA as they do to the UK. Our institutions are made of the sternest stuff.

As Lord Hoffman says, it is necessary to guard against the natural tendency of the executive to over-react. I think most Americans would agree that the wholesale internment of Japanese-Americans in WW2 was such an over-reaction. We did the same with Italians (until Churchill discovered the impact on his preferred restaurants).

Faced with an atrocity such as 9-11, there would have been a natural tendency for any government to over-react. As we now know, the terrorists exploited the then extraordinary vulnerability of the US air transportation system - vulnerabilities which were capable of remedy. It might even be said that some of the remedies have been an over-reaction in that "Flying While Muslim" seems to have become akin to an indictable offence.

It is my contention that the so-called "global war on terror" was just such an over-reaction, not least because it was legally impossible.

Here I am not speaking about the constitutional provision whereby the power to declare war is reserved to the Congress because how war is declared or commenced is a matter for the internal constitutional order of a nation (in the UK the power is technically that of the Queen in Council). What I refer to is the proposition that a state of war can only exist between sovereign states. This has been a question the Supreme Court has thus far ducked although there have been some words expressing doubt.

Part of the problem is that under its "global war" misconception, the USA has considered itself entitled to violate the sovereignty of other states for example of Italy, Bosnia, the Gambia - by snatching suspects on their territory instead of seeking extradition, of most of Europe by unlawfully overflying and using landing or base rights for illegal rendition flights - the list of Us violations is far from complete.

I accept that practice under previous administrations of both parties has been to pay scant regard to sovereignty issues when it has suited the United States to do so - largely because the reality is that there is often not much the other country can do. Grenada did not declare war on the USA for the unlawful invasion of its sovereignty. Nicaragua took its dispute to the ICJ - but the USA simply ignored the verdict - etc.

But this propensity to act unilaterally and pay no heed to international law has seriously diminished the standing of the USA internationally and I really do have a concern about whether it has been worth it in terms of results.
11.23.2008 3:21am
Litigator-London:
John Moore wrote:

"In this case in particular, the judge found, using normal US criminal justice procedures, that people captured outside of the US police system, outside of situations where normal evidence gathering would take place, and outside of our country, could not be proven to require detainment. That simply illustrates, as Mukasey writes, the difficulty of using our current inappropriate system. The judge did not find "no evidence" - the judge found "insufficient evidence/" Insufficient by which standard?"

Sorry, in relation to the Algerian/Bosnian detainees, they were actually captured and detained in Bosnia, investigated and proceeded against there, with the full participation of the US authorities and therefore any relevant evidence could and should have been adduced there and then. When they were set free by the decision of the Bosnian Supreme Court, the USA should have respected the sovereignty of that country's legal process.

Or do you think it would be acceptable for, say, the British Secret Service to go clandestinely into the USA, select someone acquitted in a US District Court, bribe the US Marshals into handing him over, fly him secretly to, say, Ascension Island, and claim the right to incarcerate him at Her Majesty's pleasure without judicial process?

Or do you think judicial review by way of habeas corpus should lie to compel those responsible to give an account of their actions?

You may be reassured to know that in the UK habeas would issue, that it can be applied for 24 hours a day 365 days a year and that the hearings will take precedence over virtually all other judicial business. Certainly not 7 years. And if the detention were to be found to have been unlawful, damages would follow the event of the finding.
11.23.2008 5:04am
Soronel Haetir (mail):
Litigator London,

I have far fewer problems where the rendition is to the US, though these cases were of course designed to not be to the US, the administration just guessed wrong. Most of that seven years was spent hashing out that particular mistake, though I am dismayed with the speed that the habeas cases are now being dealt with. I find the cases of sending people from country A to country C far more troubling.

I actually wish the US would be less respectful of national borders regarding people being sought for trial. US courts have a long tradition of caring only whether the current conditions of confinement are legal and not caring one whit about how the person ended up in that situation.
11.23.2008 8:34am
Eli Rabett (www):
@Oren

I still have no idea how to craft the policy that most effectively balances military need with judicial norms.


what has to be added to that is "in a way that retains or increases our moral authority"

Oren, your formulation reduced the entire matter to a procedural one. It is minimally that, because the procedural context is set by the moral one.

As to Eli's laundry list of countries that have to deal with the shame brought by immoral behavior the important point is how they have done so or not and how that affects their relations with others and themselves. For a good example of how poison propagates see South Korea and Japan. Finally, if anyone thinks the US has an excellent record in this regard, remember that miscegenation laws were outlawed, what, 40 years ago, and many (still?) remain(ed) on the books, only unenforceable.
11.23.2008 11:13am
Oren:
LL, the question goes to whether the Bosnian Supreme Court is credible in this matter. In their case, yes. When it's the Taliban Supreme Whatever "acquitting" Bin Laden and refusing to extradite him to the US for trial over the 911 plot (as happened in Oct 01), then we have a different matter entirely.

You cannot claim that every court system on this earth is worthy of the deference you claim. Or do you think we should have accepted the Taliban's offer to try Bin Laden themselves?
11.23.2008 11:14am
Oren:
Eli, so long the antecedent 'moral authority' is modified by the verb phrase 'effectively balanced ...', that's fine (although I consider it redundant w/ judicial norms).

Moral authority is not the end-all of our foreign policy goals, even if we are trying to make up for the last administration's total disregard for international opinion.
11.23.2008 11:22am
jukeboxgrad (mail):
oren:

Or do you think we should have accepted the Taliban's offer to try Bin Laden themselves?


The answer is no. But it is rarely remembered "How Washington Funded the Taliban." Bush handed a $43 million grant to the Taliban in 5/01. Given that we thought they deserved a gift like that, it becomes harder for us to explain why we didn't take their courts seriously. But I see your broader point about how all court systems doesn't deserve equal deference.
11.23.2008 11:50am
John More (mail) (www):
@Litigator-London
Taking the second proposition first, atrocious as 9-11 was, as were the Madrid train bombings or the London Underground bombings, while they were undoubtedly criminal acts committed with terrorist motives, is there a threat to the life of our respective nations?


No, those acts were not.

The fact that they were part of an international jihad, which had committed mass murder with the express intent of causing maximum damage to the United State, should give us pause.

The fact that a fatwa was sought and issued, giving Al Qaeda the authority to kill millions of innocents to achieve their goals should provide additional concern.

The fact that there are tens of thousands of nuclear weapons in the world, not all known to be accounted for, and that Al Qaeda is actively seeking them adds more ammunition.

The fact that unstable and rogue nations have sought (Iraq, Libya) and are actively progressing towards or possess (Iran, North Korea) nuclear weapons is ominous.More critically, all of those nations supported or directly engaged in terrorism. North Korean agents set off a bomb which almost killed the President of South Korea (a clear act of war). Iran has waged war against Israel via Hezbollah, and has frequently threatened the US. Iran has a leadership which may be religiously dedicated to causing a great holocaust in order to bring the 12th Imam. The (now defunct) regime of Iraq supported many terrorist organizations (not including Al Qaeda, although they had some links). We don't know what other nations may have nuclear weapons - South Africa, during its transformation, gave up 8 nuclear weapons and a full biological weapons program.

The fact that Al Qaeda has the knowledge to create an easily smuggled nuclear weapon, and is missing ONLY highly enriched uranium, is certainly a threat.

The fact that epidemiologists and other experts have stated that some pathogens could devastate our society, killing a large percentage, should be weighed in conjunction with Al Qaeda's intention to use biological weapons. We recently captured Al Qaeda's biological weapons head, a highly trained PhD specialist in those fields. Knowledge is the primary factor needed by a large terrorist group in order to weaponize certain pathogens - the costs and equipment for genetic engineering is following a Moore's law curve. A $50,000 facility (assuming one isn't scrupulous about accidental releases of pathogens) and a budget of a few thousand per month for supplies is sufficient. Many nations, including Iraq and South Africa, once had active biological weapons programs and could have supplied untraceable pathogens to terrorists speaks for itself.

The fact that, if MI5 hadn't stopped them, Al Qaeda would have simultaneously destroyed up to a dozen jumbo jets over heavily populated US cities in August, 2006 should give pause. The casualties would have been significantly greater than 9-11. Note that the architect of that attack was killed last week by US forces, acting in a foreign country (Pakistan) with whom we are not at war, and not acting in a covert-action rather than military way (An armed Predator is an assassin's weapon in this circumstance).

The fact that Al Qaeda is only the most visible of the Islamist terrorist threat should give pause, as should their viral recruitment techniques of people in Western countries.

Add it all up and you have a very significant threat. Not existential, but far beyond any criminal threat. From the US perspective, it is important to note that 9-11 killed more Americans in our territory than any attack by foreigners the history of our nation!

I think those were wise and prescient words which apply just as much to the USA as they do to the UK. Our institutions are made of the sternest stuff.

As Lord Hoffman says, it is necessary to guard against the natural tendency of the executive to over-react.


At a minimum, the threat is to our form of government. We could lose many of our civil protections.

If you think we over-reacted to 9-11, imagine what would happen if a was hit with a small (Hiroshima sized) ground-burst nuclear explosion, and then another a week later?

What do you think our citizens would demand of its government? In Britain, you already live in a surveillance state, probably because you have (last I checked) the highest crime rate and contact crime rate in the first world, and because of the non-existential former threat from the IRA.

Imagine what would happen in the US. Do you think our citizens would give a fig about the rights of foreigners, about torture, or about any of the lesser concerns discussed in this thread? Would Muslims and middle easterners be safe in our country after that? And, of course, there would be the (populace demanded) nuclear retaliation against the perpetrators, or any state that may have aided them - a terrible consequence.

It is better to prevent such an occurrence through pre-emptive actions (including these) that go beyond criminal justice norms than to deal with the hasty actions the citizens would force the government to take afterwards.

Sorry, in relation to the Algerian/Bosnian detainees, they were actually captured and detained in Bosnia, investigated and proceeded against there, with the full participation of the US authorities and therefore any relevant evidence could and should have been adduced there and then. When they were set free by the decision of the Bosnian Supreme Court, the USA should have respected the sovereignty of that country's legal process.


Once again, I agree with Oren - significantly: You cannot claim that every court system on this earth is worthy of the deference you claim.
11.23.2008 1:01pm
John More (mail) (www):
Eli Rabett
what has to be added to that is "in a way that retains or increases our moral authority"

This really caught my eye. Oren nails it succinctly "Moral authority is not the end-all of our foreign policy goals"

Finally, if anyone thinks the US has an excellent record in this regard, remember that miscegenation laws were outlawed, what, 40 years ago, and many (still?) remain(ed) on the books, only unenforceable.


An old law from my own state: An ordinance prohibits anyone from playing cards with pregnant women "lest they acquire a taste for gambling." We must be moral cretins!
11.23.2008 1:04pm
John Moore (www):
For a very different perspective on the Guantanamo situation, read Power Line blog posting.
http://www.powerlineblog.com/archives/2008/11/022130.php
11.23.2008 1:33pm
Litigator-London:
Oren wrote:

"LL, the question goes to whether the Bosnian Supreme Court is credible in this matter. In their case, yes."

Well, in that case, do you concede that the USA was wrong to kidnap the Bosnian/Algerians on Bosnian territory, take them to Guantanamo Bay and detain them and interrogate them for 7 years? Do you concede that this was a violation of Bosnian sovereignty? Do you agree that he persons participating in the kidnapping should be extradited to stand trial in Bosnia, or do you think "I was only following orders" should be a Defence?

Do you agree that Judge Leon's decision to order the Bonnian/Algerians' release was proper? Do you concede that accordingly their detention was an abuse of their human rights and in that case what measure of damages/compensation would you consider appropriate?

Oren also wrote: "You cannot claim that every court system on this earth is worthy of the deference you claim. Or do you think we should have accepted the Taliban's offer to try Bin Laden themselves?"

Where have I done so? The international law principle in the absence of a convention on extradition is "aut dedere aut punire", but the Taliban government of Afghanistan was not recognised by the USA. As I have written above, the USA should have accepted the UN Mandate to go into Afghanistan and deal with the threat to international peace and security. It should, of course, have done wih a sufficient number of "boots on the ground" - which to this day it has failed to do - recognising the well known permeability of the Durand Line and taken steps to effectively close the border (probably from the Pakistan side).

John Moore wrote:-

"From the US perspective, it is important to note that 9-11 killed more Americans in our territory than any attack by foreigners the history of our nation!"

Still far fewer than die each year in automobile accidents and perhaps salutary in that for far too long the USA has rested on the illusion that it was utterly immune from the consequences of its often inane foreign policy because of the safety provided by its two shining seas. Of course it was not safe. But when all those Marines were killed in Beiruit under the Reagan administration did the USA start to question its foreign policy?

"The fact that a fatwa was sought and issued, giving Al Qaeda the authority to kill millions of innocents to achieve their goals should provide additional concern."

The "fatwa" to which you refer was issued by Bin Laden. He has no religious authority to issue any such document. Unfortunately, Salafist terrorism we have to fight today was, as I have posted in some detail above (to the annoyance of some), the unintended consequence of the Reagan Administration's decision to fight a proxy war with the Soviets in Afghanistan without using American forces. The decision to recruit in Algeria was especially fateful. At that point Algeria was the only Arab state which had fought and won an asymetric war against a Western Power (France).

The USA has to learn that in a global world the power it projects outside its borders may and often will have unintended consequences. While a lot of what you write is irrelevant fearmongering, it is worth pointing out that:-

(i) the rise of the Ayatollahs in Iran was the direct consequence of US intervention in Iran earlier against Mossadeq ditto the Baath takeover in Iraq - both with the objective of preserving the interests of oil companies and US access to Gulf oil;

(ii) biological weapons and the means to deliver them were supplied to Saddam Hussein under the Reagan Administration for use in the Iran-Iraq war and were also used against the Kurds after the USA (George HW Bush) had encouraged uprisings and then left those same Kurds without support.

(iii) the South African nuclear and biological weapons programmes were developed under the Apartheid regime (supported by by the Reagan Administration) with the assistance of which other nuclear state?

I have never denied that Salafist terrorism poses a significant threat. I know it does. As a fairly aged lawyer I see the cases going through the Old Bailey, I have relatives and friends in the judiciary who try terrorists and as a Muslim I see and hear quite a lot in other places throughout Europe and North Africa.

Based on that personal experience, I can assure you that if the Bush Administration had deliberately set out to develop a programme which would alienate Muslim sentiment world-wide, facilitate the recruiters and vastly increase the world-wide risks from Salafist terrorism, it could hardly have devised a better policy.

Jukeboxgrad posted above a reference to Andrew Kohut's evidence to the U.S. House Committee on Foreign Affairs; Subcommittee on International Organizations, Human Rights, and Oversight based on the findings of the Pew Global Attitudes Survey. Did you read it?

"To give you some sense of the magnitude of the problem, favorable attitudes toward the U.S. declined in Germany, from 78% in 2000 to 37% currently. The numbers are similar in France, but even worse in Spain, where only 23% have a favorable view, and in Turkey, where it is 12%. Most people in these countries held positive views of the U.S. at the start of the decade....

Second, while anti-Americanism is a global phenomenon, it is clearly strongest in the Muslim world. For instance, in all five predominantly Muslim countries included in our 2006 study, fewer than one-third of those surveyed had a favorable view of the U.S. Moreover, with the Iraq war, anti-Americanism spread to parts of the Muslim world where the U.S. had previously been relatively popular. In Indonesia, for example, between 2002 and 2003 America's favorability rating dropped from 61% to only 15%. In Turkey it plunged from 52% in the late 1990s to 15% by 2003.

After Iraq, many in Muslim countries began to see the U.S. as a threat to Islam, and what had perhaps been loathing for the U.S. turned into both fear and loathing. A 2005 Pew study found that in all five majority Muslim countries surveyed, solid majorities said they worried that the U.S. might become a military threat to their country. This includes 65% in Turkey - a longstanding NATO ally.

Third, among many people, anti-Americanism is an intensely held opinion, which makes it difficult to change. The first eye opener for me was a 2003 European Union poll that 53% of people in EU countries saw the U.S. as a threat to world peace. Strikingly, Europeans were as likely to say this about the U.S. as they were to say it about Iran and North Korea.

The 2006 Pew survey had similar findings. The British, French, and Spanish publics were all more likely to say the U.S. presence in Iraq poses a great danger to regional stability and world peace than to say this about the current governments of Iran or North Korea.

A fourth feature of contemporary anti-Americanism is that it is no longer just the U.S. as a country that is perceived negatively, but increasingly the American people as well, a sign that anti-American opinions are deepening and becoming more entrenched. In countries such as Spain, Jordan, Indonesia, and Turkey, favorable views of Americans have declined significantly in recent years.

There are a number of factors driving anti-Americanism around the world. Among Muslims, first and foremost is thinking that American policy is too supportive of Israel at the expense of Palestine. Even in Kuwait - an Arab and Muslim country that is relatively pro-American - 77% in a May 2003 poll said the U.S. favors Israel too much.

The U.S.-led war on terrorism is also perceived quite negatively throughout much of the Muslim world. Our recent polling has found declining support for America's anti-terrorism efforts in many parts of the globe, but the war on terror has always been largely unpopular in Muslim countries, where it is seen as an American campaign specifically against unfriendly Muslim governments.

All of this has created a situation in which anger at the U.S. is pervasive throughout much of the Muslim world. Overwhelming majorities in countries such as Egypt, Indonesia, Jordan, Pakistan, and Turkey continue to dislike the United States. And dishearteningly, America's most visible enemy, Osama bin Laden, is viewed favorably by a significant number of people in many places, including nations such as Pakistan and Jordan that are key partners in America's efforts to combat al Qaeda and similar terrorist groups - the 2006 Pew poll indicated that 38% of Pakistanis and 24% of Jordanians have a lot or some confidence in bin Laden to do the right thing in world affairs.

The 2005 Pew poll found that many in Muslim countries believe suicide attacks against Americans and other Westerners in Iraq are justifiable. Just over half of Moroccans (56%) and 49% of Jordanians think such attacks are justifiable. Even in Turkey, where bin Laden is unpopular and support for terrorism is generally low, about one-in-four say suicide bombings against Americans and Westerners in Iraq can be justified.


These are the (I hope unintended, but I sometimes wonder) consequences of the Bush Administration's policies.

If you think the USA is winning the fight against terrorism, you and many others on this blog have made the potentially fatal mistake of believing the present administration's propaganda. The fight against terrorism is not going to be won by unilateral actions which alienate the whole world.
11.23.2008 3:42pm
RPT (mail):
Mr. Moore:

@RPT...

There you go again...

And, of course, it is ok to have the current administration's standard of "lock 'em up with no evidence whatsoever just because we can.

Nonsense."

John: Denial does not restore the lost lives. That is what happened and it continues, and it appears you support the practice, which is the basis for the appeal of the D.C. release decisions for the Uighurs (sp). We can expect a similar appeal for these releases. Never admit error or fallibility.
11.23.2008 4:08pm
John Moore (www):
@Litigator-London:
"From the US perspective, it is important to note that 9-11 killed more Americans in our territory than any attack by foreigners the history of our nation!"

Of course it was not safe. But when all those Marines were killed in Beiruit under the Reagan administration did the USA start to question its foreign policy?


The USA is constantly questioning its foreign policy. Furthermore, as Administrations change, the policy changes. However, the US retreat from Beirut was significantly worsened the threat from Islamists, because it made us seem cowardly. The decision to intervene there was probably a mistake.

As for the "blowback" from our aid to the Afghanistan rebellion, I disagree that it is a major effect. The Afghanis, as is their history, would have fought the Soviets in any case, gaining combat experience and radical recruits from around the world. We simply helped them win. It is ironic that we get no credit for helping free people from the rule of the Soviet invader!

We did fail to recognize the danger of the Taliban. Would you have had us wage pre-emptive warfare to prevent the Taliban from gaining power, given their subsequent human rights atrocities and their continuing alliance with Al Qaeda?

The USA has to learn that in a global world the power it projects outside its borders may and often will have unintended consequences.
Yeah, but we're a bunch of ignorant colonials. Thank you for introducing us to The Law of Unintended Consequences. I'm sure our leaders will want to consult you immediately so they can add this new idea to their deliberations.

While a lot of what you write is irrelevant fearmongering

Only to those with their heads in the sand. Do you deny the reality of the threat?

The "fatwa" to which you refer was issued by Bin Laden. He has no religious authority to issue any such document.


The point is the intent shown by the request for this fatwa, which was not issued by Bin Laden but rather by some random radical cleric. It will be accepted as valid by those who are otherwise motivated to launch mega-attacks against the West.

How do you define a "religious authority?" Which flavor - Sunni, Shia, Sufi?

-----------------------

Now to answer your irrelevant US bashing........
the rise of the Ayatollahs in Iran was the direct consequence of US intervention in Iran earlier against Mossadeq ditto the Baath takeover in Iraq - both with the objective of preserving the interests of oil companies and US access to Gulf oil


This is gross extrapolation. The causes of the rise of the Ayatollahs were complex. Would you care to apply the same extrapolation to a Soviet puppet takeover of Iran?

biological weapons and the means to deliver them were supplied to Saddam Hussein under the Reagan Administration for use in the Iran-Iraq war and were also used against the Kurds after the USA (George HW Bush) had encouraged uprisings and then left those same Kurds without support.


This is completely false (except for GHWB's unforgiveable encouragement of uprisings). Here are the facts:

1) A number of pathogens were purchased from a US based non-profit scientific organization which, in those days, supplied them freely to any scientists.
2) The US did not supply the means to deliver any kind of weapon. The USSR did that. The US government cooperation with Iraq in the Iran-Iraq was was limited to intelligence.
3) Biological weapons were not used against the Kurds. Chemical weapons (not supplied by the US) were - BEFORE the Gulf War, not after.

Really, if this sort of rubbish is what motivates your anti-US tirades, then you need to do the most basic research (Google would do just fine);

the South African nuclear and biological weapons programmes were developed under the Apartheid regime (supported by by the Reagan Administration) with the assistance of which other nuclear state?


Your point? Relevance to this discussion? BTW, although I suspect collaboration with the Israelis, I've never seen proof.

Based on that personal experience, I can assure you that if the Bush Administration had deliberately set out to develop a programme which would alienate Muslim sentiment world-wide, facilitate the recruiters and vastly increase the world-wide risks from Salafist terrorism, it could hardly have devised a better policy.


The Muslim world needs to get its house in order, and quit blaming its problems, its failures and its misdeeds on others. Is it an accident that the majority of the conflict in the world today is at the periphery of the Muslim world, from Indonesia and Thailand to Europe? Is it an accident that other major religions such as Christians, Buddhists, Jews, Hindus, Shintoists are not involved in expansionist, religious based warfare?

To blame this on America is to be disingenuous. Also, the lack of democracy and human rights in most of the Muslim world is shocking.

Among Muslims, first and foremost is thinking that American policy is too supportive of Israel at the expense of Palestine.


I find no problem with that support. The behavior of the Arab world towards Israel (and towards Palestinians) has been terrible, from the initial unprovoked invasion of the nascent state of Israel to the widespread approval of the most vile forms of terrorism, such as the use of mentally challenged suicide bombers whose shrapnel is coated with a chemical agent (Coumadin) to prevent blood clotting.

The 2005 Pew poll found that many in Muslim countries believe suicide attacks against Americans and other Westerners in Iraq are justifiable. Just over half of Moroccans (56%) and 49% of Jordanians think such attacks are justifiable.


This says a heck of a lot more about the values in those societies than America. I can't think of any cause in which Americans, in any significant percentage, would support terrorist attacks against civilians.

These are the (I hope unintended, but I sometimes wonder) consequences of the Bush Administration's policies


Hardly. You have cited causes leading back 50 years. Polls have shown the growth of anti-Americanism started well before Bush. You might be surprised to know that we have high approval among those countries which have been recently freed from Soviet rule. Interesting, eh?

As for unintended - of course they are unintended. To suppose otherwise is insane.
11.23.2008 4:26pm
John Moore (www):
@RPT:

Look at the wording of your comment that I objected to. It is unsupportable.
11.23.2008 4:27pm
Oren:

Well, in that case, do you concede that the USA was wrong to kidnap the Bosnian/Algerians on Bosnian territory, take them to Guantanamo Bay and detain them and interrogate them for 7 years? Do you concede that this was a violation of Bosnian sovereignty? Do you agree that he persons participating in the kidnapping should be extradited to stand trial in Bosnia, or do you think "I was only following orders" should be a [sic] Defence?

First of all, it's conceded that this is a violation of Bosnian sovereignty. The question is whether that violation was justified* in that instant case. That depends on whether there existed, at the time, specific evidence that those individuals were, in fact, enemy combatants covered by the AUMF. That judgment is entirely independent of anything the Bosnian Courts have said. Liability for the officials is possible if the evidence at the time was such that no reasonable person could conclude that these individuals were EC.


Do you agree that Judge Leon's decision to order the Bonnian/Algerians' release was proper? Do you concede that accordingly their detention was an abuse of their human rights and in that case what measure of damages/compensation would you consider appropriate?

He's seen the evidence, I haven't, so I defer to his judgment. However, the question of whether we continue to hold them and whether we were unreasonable to have held them to begin with are two very different question (the delay to get habeas is yet a third matter). It is quite possible that the officials that originally ordered them captured were reasonable yet incorrect in their initial assessment.

Of course, if they were unreasonably incorrect, then we can consider damages. That does not appear to be the case (or at least that case has yet to be made).

* NB that I explicitly reject the "national sovereignty over all" position that seem implicit in your argument. The Serbian Courts could have exonerate Milosevic 100 times over, and it would still be perfectly proper for the international community to "kidnap" him to stand trial for war crimes. The exact limits of national sovereignty are a topic for a totally different discussion.
11.23.2008 5:06pm
Litigator-London:
John Moore wrote:-

Yeah, but we're a bunch of ignorant colonials. Thank you for introducing us to The Law of Unintended Consequences. I'm sure our leaders will want to consult you immediately so they can add this new idea to their deliberations.

I would not dream of calling any American 'a colonial". Obviously, many of your Founding Fathers were originally loyal subjects of the Crown in British North America who were also products of the European enlightenment and who believed in the theory of the "social contract" between Monarch and People. They felt that the then British Monarch had broken his contract with his American subjects. That is why the Declaration of Independence, drafted by British trained lawyers contains a lengthy series of recitals of the breaches in justification of the rescission of the contract. As for 'ignorant', there are still some ignorant people in the USA just as there are anywhere.

In matters of foreign policy, it is a great pity that the precepts set out in George Washington's Farewell Address to the Nation have since 1945 been more honoured in the breach than in the observance, particularly as regards Israel.

1. Do you deny that the CIA (and SIS) intervened covertly to bring down Mossadeq - the CIA acronym for the operation being Operation Ajax? Do you deny that the consequence was brutal abd pro-American rule by the Shah? Do you deny that that in turn brought about the deposition of the Shah by the Islamic Republic in 1979? Are you saying that the CIA/SIS intervention was intended to result in the Islamic Republic?

2. Do you deny that the US decided to topple the Iraqi President Quassim because he adopted a non-aligned foreign policy - participated in the founding of OPEC and nationalsed the Iraq Petroleum Company? Do you deny that the CIA's first contact with Saddam Hussein was the abortive coup of 1959 and that the CIA was just as involved in the Baath take-over in 1963?

3. Would you deny the following timeline:-

September, 1980. Iraq invades Iran. The beginning of the Iraq-Iran war.

February, 1982. Despite objections from congress, President Reagan removes Iraq from its list of known terrorist countries.

December, 1982. Hughes Aircraft ships 60 Defender helicopters to Iraq.

1982-1988. Defense Intelligence Agency provides detailed information for Iraq on Iranian deployments, tactical planning for battles, plans for air strikes and bomb damage assessments.

November, 1983. A National Security Directive states that the U.S would do "whatever was necessary and legal" to prevent Iraq from losing its war with Iran.

November, 1983. Banca Nazionale del Lavoro of Italy and its Branch in Atlanta begin to funnel $5 billion in unreported loans to Iraq. Iraq, with the blessing and official approval of the US government, purchased computer controlled machine tools, computers, scientific instruments, special alloy steel and aluminum, chemicals, and other industrial goods for Iraq's missile, chemical, biological and nuclear weapons programs.

October, 1983. The Reagan Administration begins secretly allowing Jordan, Saudi Arabia, Kuwait, and Egypt to transfer United States weapons, including Howitzers, Huey helicopters, and bombs to Iraq. These shipments violated the Arms Export Control Act.

November 1983. George Schultz, the Secretary of State, is given intelligence reports showing that Iraqi troops are daily using chemical weapons against the Iranians.

December 20, 1983. Donald Rumsfeld , then a civilian and subsequently Defense Secretary, meets with Saddam Hussein to assure him of US friendship and materials support.

July, 1984. CIA begins giving Iraq intelligence necessary to calibrate its mustard gas attacks on Iranian troops.

January 14, 1984. State Department memo acknowledges United States shipment of "dual-use" export hardware and technology. Dual use items are civilian items such as heavy trucks, armored ambulances and communications gear as well as industrial technology that can have a military application.

March, 1986. The United States with Great Britain block all Security Council resolutions condemning Iraq's use of chemical weapons, and on March 21 the US becomes the only country refusing to sign a Security Council statement condemning Iraq's use of these weapons.

May, 1986. The US Department of Commerce licenses 70 biological exports to Iraq between May of 1985 and 1989, including at least 21 batches of lethal strains of anthrax.

May, 1986. US Department of Commerce approves shipment of weapons grade botulin poison to Iraq.

Late 1987. The Iraqi Air Force begins using chemical agents against Kurdish resistance forces in northern Iraq.

February, 1988. Saddam Hussein begins the "Anfal" campaign against the Kurds of northern Iraq. The Iraq regime used chemical weapons against the Kurds killing over 100,000 civilians and destroying over 1,200 Kurdish villages.

April, 1988. US Department of Commerce approves shipment of chemicals used in manufacture of mustard gas.

August, 1988. Four major battles were fought from April to August 1988, in which the Iraqis massively and effectively used chemical weapons to defeat the Iranians. Nerve gas and blister agents such as mustard gas are used. By this time the US Defense Intelligence Agency is heavily involved with Saddam Hussein in battle plan assistance, intelligence gathering and post battle debriefing. In the last major battle with of the war, 65,000 Iranians are killed, many with poison gas. Use of chemical weapons in war is in violation of the Geneva accords of 1925.

August, 1988. Iraq and Iran declare a cease fire.

August, 1988. Five days after the cease fire Saddam Hussein sends his planes and helicopters to northern Iraq to begin massive chemical attacks against the Kurds.

September, 1988. US Department of Commerce approves shipment of weapons grade anthrax and botulinum to Iraq.

September, 1988. Richard Murphy, Assistant Secretary of State: "The US-Iraqi relationship is... important to our long-term political and economic objectives."

December, 1988. Dow chemical sells $1.5 million in pesticides to Iraq despite knowledge that these would be used in chemical weapons.

4. Do you deny that this chronology can be summarized in this way: The United States used methods both legal and illegal to help build Saddam's war against Iran. The US supplied chemical and biological agents and technology to Iraq when it knew Iraq was using chemical weapons against the Iranians. The US supplied the materials and technology for these weapons of mass destruction to Iraq at a time when it was know that Saddam was using this technology to kill his Kurdish citizens. The United States supplied intelligence and battle planning information to Iraq when those battle plans included the use of cyanide, mustard gas and nerve agents. The United States blocked UN censure of Iraq's use of chemical weapons?

5. Do you deny that the US Centers for Disease Control and Prevention and the non-profit American Type Culture Collection sent samples of live germ warfare agents to Iraq? Remember that when he was asked about this in a Senate hearing by Senator Byrd, Donald Rumsfeld denied all knowledge to be met with this observation from the Senator: "We have a paper trail. We not only know that Iraq has biological weapons, we know the type, the strain, and the batch number of the germs that may have been used to fashion those weapons. We know the dates they were shipped and the addresses to which they were shipped. We have in our hands the equivalent of a Betty Crocker cookbook of ingredients that the US allowed Iraq to obtain and that may well have been used to concoct biological weapons."

6. Do you deny that the Reagan administration authorised the expert of crop-spraying aircraft to Iraq and that these were used for the delivery of biological/chemical agents against the Kurds?

I suggest that before expressing the opinion that I need to do some research, you should not assume that I have not done so. As it happens, I have some Iraqi Kurdish connections.

American policy over the decades has vastly contributed to the present Anti-Americanism. Sure it started well before Bush, but it has peaked under the Bush Administration.

I suggest you are in denial. You are like the fond mother watching her son march off the parade ground at a passing out parade who turns to her neighbour and says, "Look, dear, they're all out of step except my little Johnny?"
11.23.2008 6:15pm
Oren:
What does this semi-historical diatribe have anything to do with current policy?
11.23.2008 6:27pm
Litigator-London:
Oren:

I note that you concede some points. I am not a proponent of "national sovereignty over all". I do believe that that the UNSC can authorise interventions which would otherwise be unlawful as a matter of international law. As I pointed out there was a UN Mandate on offer for Afghanistan. The Iraq invasion was, however, plainly unlawful as a matter of international law.

Actions taken taken in violation of the sovereignty of other third countries in the so-called "war on terror" arrogates to the USA a power it may have de facto but does not have de jure.

I think I have referred to a speech of one of the UK's most eminent jurists on this topic, The Rt Hon Lord Bingham of Cornhill KG, PC on another thread.

He used as an example the 'serious violation of international law' by the United States, the United Kingdom and others in invading Iraq in 2003, which, he said, despite the genuine beliefs of many of those involved that it was lawful, nevertheless the effect was to 'undermine the foundation on which the post-1945 consensus had been constructed'.

Lord Bingham commented that 'however attractive it might be for a single state to be free of all the legal constraints that bind all other states, they are unlikely to tolerate such a situation for very long and in the meantime the solo state would lose the benefits and protections that international agreement can confer. The rule of the jungle is no more tolerable in a big jungle'.
11.23.2008 6:30pm
Litigator-London:
Oren:

You wrote:

"What does this semi-historical diatribe have anything to do with current policy?"

Hardly a diatribe on my part, simply a recital of facts.

The relevance is that past mistakes should inform current policy.
11.23.2008 6:33pm
Oren:
I recall no provision in the Constitution that arrogates any authority to the UNSC over our military policy. That power rests with the American People, in Congress Assembled, and absolutely nowhere else.

Moreover, the idea that the UNSC has created any post-1945 consensus is absurd on its face. When it is convenient, the great powers invoke the council -- when it is inconvenient, they ignore it altogether. Britain, for example, had no problem waging war on Argentina without UNSC approval. (In fact, the Falklands war was prosecuted in direct contravention of UNSC resolution 502, which demanded an immediate cessation of hostilities by all parties).

(Aside: I was against the invasion of Iraq since January 2003. That doesn't meant that I have to endorse every silly argument against it).
11.23.2008 6:41pm
John Moore (www):
@Litigator-London

We are getting way off the subject, but to return to your original assertion, Iraq did not use biological weapons against the Kurds.

If one takes you whole list of "can you refutes" - I am not going through the whole thing.

However, your continued use of the provision of biological agents to Iraq as a club to beat the US with leads me to suspect the spin you put on the rest.

It was routine for CDC and ATCC to ship cultures all over the world. In hindsight, of course, it was naive - it was based on the supposition that scientists would use them for good. To retrospectively treat this as evidence of intentionally facilitating bio-weapons development is absurd.

The same chemicals that are nerve weapons precursors are routinely used to make organophosphate pesticides. It is ironic that we are criticized for selling these, while those who claimed Iraq had no WMD capabilities ignored the pesticide plant producing organophosphates and another producing Bacillus Thuringensis. Both plants were trivial convertible to producing nerve agents and Anthrax respectively.
11.23.2008 6:45pm
Oren:
A recitation of hand-picked facts, without any attempt to place them in proper context, can qualify as a diatribe if it is done with the intent of providing an incomplete story.

Of course, I've long been of the opinion that American foreign policy is both contradictory and counterproductive. The leap from there to rationalizing surrender of foreign policy prerogatives enjoyed by every government since the dawn of time to some undemocratic and unaccountable international organization, however, is just too much to bear (neglecting for the time being the necessity of amending the Constitution to accomplish such a goal).

As I said before, it's also quite unhelpful in coming up with positive foreign policy for the future.
11.23.2008 6:47pm
Oren:

It is ironic that we are criticized for selling these, while those who claimed Iraq had no WMD capabilities ignored the pesticide plant producing organophosphates and another producing Bacillus Thuringensis. Both plants were trivial convertible to producing nerve agents and Anthrax respectively.

You can produce the nerve agents and biologicals themselves rather easily (any introductory Chemistry/Biology student can do it, in fact a reporter from WIRED did so with a few grand in surplus bio equipment bought on ebay). Delivering them in a weaponized form, however, requires consider technical knowledge that is peculiarly military (in the sense that it's not easy fungible from general knowledge of these things).
11.23.2008 6:50pm
Oren:
Incidentally, according to your conception of international law, the NATO operation against Milosevic was unlawful. Would the world be a better place if he had free hand (aided, as he was, by a Russian veto at the SC) to cleanse Kosovo?
11.23.2008 6:52pm
John Moore (www):
@Oren,


Delivering them in a weaponized form, however, requires consider technical knowledge that is peculiarly military


This is true, if the intended use is military.

Iraq, of course, already had that knowledge and had demonstrated it in prior use of chemical weapons. According to Saddam after his capture, he had his WMD program in a holding status, ready to start up again as soon as he could get away with it.

However, weaponization is less of an issue for some terrorist use's A terrorist, for example, could fairly easily kill a thousand or two by spraying Sarin into an air intake. This requires no military equipment or knowledge. A binary Sarin artillery round like that which injured two US EOD soldiers in 2004 would be enough for a terrorist attack, and the binary nature makes it much easier.

The 2001 Anthrax attacks apparently used either a non-weaponized version, or one which had been partially weaponized (treated to prevent spore clumping but not modified for antibiotic resistance). The reports aren't clear. They didn't kill many, but it was sure an effective terrorist attack (or "vaccination," considering the apparent perpetrator).


Contagious biologicals have little military use. They are too likely to get out of control, hurting the attacker as much as the target.

However, for the apocalyptic terrorist (Iranian government, perhaps, or Aum Shinrikyo, or some variant of Islamic or Christian extremist), this is not a problem. The whole point is to cause massive death, and it matters not who gets killed.

Finally, the spread of and equipment for genetic engineering increases the abilities for terrorists to increase the lethality or contagion of agents (SARS, perhaps).

Of all the terrorist scenarios, the two most concerning to US officials are nuclear explosive and contagious biological. The other threats pale in comparison.
11.23.2008 9:13pm
Eli Rabett (www):
Oren and John Moore, you appear to believe that the government needs to maintain moral authority only to support its relationships with other governments and people. Far more important is that a government have moral authority so that the society may function with the consent and support of the people.

If moral authority is present, the society functions on a substantially voluntary basis, if not, then only force and suppression allow it continue. The SED state in the DDR is a muster example for the latter. Anyone who has experience of such a government knows that corruption flourishes, and no law, regulation or social more is observed that is not enforced at the point of a gun.

This is why Eli considers the Grover Norquistian campaign against the US government a sin bordering on a crime.
11.23.2008 10:10pm
John Moore (www):
@Eli,

Oren and John Moore, you appear to believe that the government needs to maintain moral authority only to support its relationships with other governments and people.



On the contrary, I think a government needs moral authority primarily within its own society. It's moral authority with other governments and people is a far lesser concern. It is unclearwhat you mean by the "Grover Norquistian" campaign, since as far as I know, Norquist has/had no campaign against the US government.
11.23.2008 10:41pm
Oren:
However, for the apocalyptic terrorist (Iranian government, perhaps, or Aum Shinrikyo, or some variant of Islamic or Christian extremist), this is not a problem. The whole point is to cause massive death, and it matters not who gets killed.

As an aside, the Iranian government always struck me as the kind of people to send others to their certain doom than to martyr themselves.

Far more important is that a government have moral authority so that the society may function with the consent and support of the people.
That's putting the cart way out in front of the horse. The government's moral authority is derived from the consent of the governed. Insofar as it executes the will of the people, the government can do no wrong (e.g. any moral culpability for a democratically enacted policy must fall squarely on the people).
11.23.2008 11:26pm
Eli Rabett (www):
John, good that we agree, but as to the second point Grover's famous sayings include "I don't want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub." Eli thinks that is pretty clear. If you want more colorful quotes from Norquist and fellow travellers they can be provided.

Oren, the government's moral authority and the consent of the governed are somewhat like the chicken and the egg. One requires the other. As z has it see also my forthcoming paper: "Chickens do not lay eggs, because they have been observed to hatch from them".
11.23.2008 11:46pm
jukeboxgrad (mail):
moore:

Imagine what would happen in the US. Do you think our citizens would give a fig about the rights of foreigners, about torture, or about any of the lesser concerns discussed in this thread? Would Muslims and middle easterners be safe in our country after that? And, of course, there would be the (populace demanded) nuclear retaliation against the perpetrators, or any state that may have aided them - a terrible consequence.

It is better to prevent such an occurrence through pre-emptive actions (including these) that go beyond criminal justice norms than to deal with the hasty actions the citizens would force the government to take afterwards.


This is the heart of your argument. English translation: 'we need to be evil and immoral now, in order to avoid needing to be even more evil and immoral later.' Sorry, I don't buy it. This 'reasoning' is fundamentally corrupt, and can be used by any tyrant at any time in order to justify any crime. It's very much like 'we had to destroy the village in order to save it.'

A number of pathogens were purchased from a US based non-profit scientific organization which, in those days, supplied them freely to any scientists. … The US government cooperation with Iraq in the Iran-Iraq was was limited to intelligence.


Wrong. Proof here. In that comment, and in other comments in that thread.

Is it an accident that other major religions such as Christians, Buddhists, Jews, Hindus, Shintoists are not involved in expansionist, religious based warfare?


It is not utterly irrational to view our own efforts as "Christians … involved in expansionist, religious based warfare." And the evidence goes way beyond just what Coulter said:

We should invade their countries, kill their leaders and convert them to Christianity


In the National Review, no less, arguably the leading conservative journal. And then Coulter is repeatedly invited to CPAC, where she shares a platform with Romney, who has this to say about her (video):

I am happy to hear that after you hear from me, you will hear from Ann Coulter. That is a good thing. Oh yeah!


Try to stretch your perspective enough to imagine what this looks like to someone who is not an American.

I can't think of any cause in which Americans, in any significant percentage, would support terrorist attacks against civilians.


Of course not. Except when we repackage it as "shock and awe," and "collateral damage." And make sure to avoid actually keeping track of civilian casualties. And make sure to also adopt very self-serving definitions with regard to words like "terrorist" and "civilian."

To more than a trivial extent, war is simply "terrorism" with a large budget.

And even if you don't share this view, try to imagine why non-Americans might adopt this view. And try to imagine how this ends up costing us.

A binary Sarin artillery round like that which injured two US EOD soldiers in 2004 would be enough for a terrorist attack, and the binary nature makes it much easier.


It would be very hard to use such a shell except in the way that it's designed to be used: fired from a gun. If it's not fired from gun, it's not going to spin, and if it doesn't spin, the two precursors are not going to mix well. If the two precursors don't mix well, the shell will explode, but you won't get much actual sarin.

Norquist has/had no campaign against the US government.


He's the guy who made the remark about drowning the government in a bathtub. If he had a secret plan to destroy the government, we would call him a subversive. Because he talks about the plan openly, we call him a Republican.
11.23.2008 11:52pm
Oren:

Oren, the government's moral authority and the consent of the governed are somewhat like the chicken and the egg. One requires the other.

No. It's a one way street -- the government's moral authority is created, whole cloth, from the consent of the governed. Consent creates moral authority to govern but government does not (emphatically) create consent.
11.24.2008 12:36am
John Moore (www):
@Eli
So Norquist is a small government conservative, with a flair for the dramatic. I guess that makes me somewhat of a fellow traveler. What that has to do with moral authority re: terrorism is beyond me.

@jukeboxgrad
This is the heart of your argument. English translation: 'we need to be evil and immoral now, in order to avoid needing to be even more evil and immoral later.'

We need to prevent rather than retaliate.


It's very much like 'we had to destroy the village in order to save it.'

Ah, that old Vietnam myth.

Coulter is the right's Michael Moore, except she's a lot funnier. Nobody on the right takes her seriously. We do often enjoy her, when she isn't embarrassing us.

It would be very hard to use such a shell except in the way that it's designed to be used: fired from a gun. If it's not fired from gun, it's not going to spin, and if it doesn't spin, the two precursors are not going to mix well. If the two precursors don't mix well, the shell will explode, but you won't get much actual sarin.

Do I have to refute that again? Okay...here goes in simple steps: remove the reagents from the shell and store them separately. Later, when ready to use it, mix the reagents in a container. Shake vigorously. Spray down air intake. Die.

@Oren
As an aside, the Iranian government always struck me as the kind of people to send others to their certain doom than to martyr themselves.


That is certainly a reasonable hypothesis. However, it's also reasonable to posit that Ahmadinejad is a real nut job who means what he says. He has a lot of power and gives every indication of being an Apocalyptic.
Iranian President Mahmoud Ahmadinejad says that when he delivered his speech at the UN General Assembly in September, he felt there was a light around him and that the attention of the world leaders in the audience was unblinkingly focused upon him.


This man may not be a rational actor. Ignoring threats from dictators has an unfortunate history.
11.24.2008 1:17am
John Moore (www):
@Oren

BTW, regarding Iran, if:

1) An Iranian leader with sufficient power is an apocalyptic or otherwise un-deterable, and

2) When (not if) Iran acquires the ability to make a fission explosive and to launch a satellite.

Then, Iran becomes a true existential threat to any nation on earth.

#2 is sufficient to enable an HEMP attack (with zero warning time) that could destroy our infrastructure to the point of total economic devastation, mass starvation, and dramatic social and political upheaval.

When they get close to that capability, I'm gonna stock my "Mormon closet" (no offense intended).
11.24.2008 1:24am
Oren:



That is certainly a reasonable hypothesis. However, it's also reasonable to posit that Ahmadinejad is a real nut job who means what he says. He has a lot of power and gives every indication of being an Apocalyptic.

He can't take a shit without permission from the Ayatollah (well, the Supreme Council). They are the ones with true power (and not so eager to martyr themselves, it seems).
11.24.2008 2:32am
Litigator-London:
John Moore and Oren:

So you are in denial about the past errors in US policy which have vastly exacerbated the threat the whole world faces from Salafist terrorism and you seek to justify the unlawful actions of the present Administration on the grounds that they are justified by US national security.

It's rather a strange mentality which seeks to argue on the one hand that a potential terrorist can easily acquire the means to commit horrible crimes, which is true, and at the same time pursue policies which facilitate the recruitment of such terrorists.

Nothing terribly sophisticated is required to cause explosions which will kill or maim large numbers of people. The basic ingredients for a crude explosive can be acquired in any agricultural supplies outlet (the IRA called the mixture "Paxo"). Add in some nails, stuff the lot into some pipe, add a remote detonator (parts available at Radio Shack or similar)and you have the material for an effective bombing campaign.

Consider the lesson of Vietnam. Consider the lesson of the misbegotten Enterprise of Iraq, designed to create a pro-US regime in Baghdad, which instead will leave an unstable pro-Iranian once the US declares victory and leaves, and consider the situation in Afghanistan/Pakistan which is deteriorating by the hour. The Project for the New American Century has failed - abysmally.

The idea of encouraging democracy, law and order, peace and security throughout the world is a laudable one - but it is a long term enterprise, an exercise in winning hearts and minds, an exercise in development and not destruction.

I am hopeful that the next US Administration will start to put matters right and that the United States of America will soon again become the "beacon in the hill" leading the free would by example.

Let's hope that can be accomplished in what remains of my lifetime.
11.24.2008 2:40am
Oren:
(1) I never denied anything. Look up my 11.23.2008 6:47pm post again -- our foreign policy has often been counterproductive.

(2) There is nothing unlawful about a US military action taken with the approval of Congress. Absent an amendment to the Constitution, Congress simply cannot be stripped of that authority.

(3) You are repeatedly changing the subject, refusing to debate the issues you brought up and then, days later, returning to the same subject with a substantially similar point.

This is immensely frustrating.
11.24.2008 10:16am
Litigator-London:
Oren:

There is a distinction between what may or not be lawful as a matter of domestic law and what is lawful or unlawful as a matter of (i) international law and (ii) the domestic laws of other states.
11.24.2008 10:40am
Oren:
And by what authority do either (i) or (ii) have to impinge of the prerogatives of the US Congress?
11.24.2008 10:47am
Oren:
I should add that the American government ought very much to take into consideration international law and world opinion when shaping their policies. That said, considering that input is not the same as surrendering our decision-making.
11.24.2008 12:15pm
John Moore (www):
@Oren
He can't take a shit without permission from the Ayatollah (well, the Supreme Council). They are the ones with true power (and not so eager to martyr themselves, it seems).


This is only the official legal position in Iran. The reality is significantly different. Ahmadinejad has his own substantial power base, especially in the security, intelligence and paramilitary forces. Whether he has the capability (as opposed to formal authority) to cause a catastrophic attack is not known. Remember, as an apocalyptic, he doesn't need to worry about punishment, only about creating the initial catastrophe.

OTOH Rafsanjani has made inflammatory statements that would indicate that he might not be deterred, but he and his family are wealthy and probably prefer their survival and comforts over martyrdom.

We can hope that Iran is deterrable. We cannot count on Iran and other rogue nuclear states continuously remaining deterrable and in control of their nuclear resources forever.
11.24.2008 12:31pm
John Moore (www):
@Litigator-London:

I completely agree with Oren's responses to you. No need to elaborate.
11.24.2008 12:32pm
Oren:
John, I was lead to believe that the President does not control the armed forces, only the domestic police.
11.24.2008 12:45pm
RPT (mail):
"Mr. Moore:

@RPT:

Look at the wording of your comment that I objected to. It is unsupportable."

Whatever, the motives of the perpetrators, my description was is factually correct. Factually innocent people, whose innocence was known beforehand, were incarcerated and tortured, and continue to be. This is indefensible to me, although I recognize that not everyone agrees. To some, the fact of the 9.11 attack justifies anything against anyone in retaliation.
11.24.2008 1:10pm
Oren:
RPT, to caricature the opposing argument in such a way is absurd. I don't know anyone that has endorsed "anything against anyone".
11.24.2008 1:42pm
jukeboxgrad (mail):
moore:

Norquist is a small government conservative, with a flair for the dramatic … Ahmadinejad is a real nut job who means what he says


I'm juxtaposing those two statements because the irony is obvious and rich. When a guy you like says something unacceptable and offensive, you have a nice alibi for him (that he has "a flair for the dramatic"). But when a guy you don't like says something unacceptable and offensive, your interpretation is that he is someone "who means what he says."

Someone with biases different than yours could easily treat the two statements in the opposite manner.

When we fail to have the capacity to even imagine the way others view things (both friends and enemies), we're being self-destructive. I think you're overlooking the importance of that capacity.

We need to prevent rather than retaliate.


But when we decide it's impossible to "prevent" without sacrificing our values, then the battle and the war are lost before we even begin.

Ah, that old Vietnam myth.


Except that it's not a myth. Mona Charen's 'debunking' has been debunked. See here:

After following the link you posted, I am persuaded that Mona Charen appears to have been mistaken.


The other comments in that thread which are relevant are here, here, here, here, here and here.

Speaking of things that aren't myths even though you wish they were, I notice you haven't addressed the proof I presented regarding the help Reagan gave Saddam.

Coulter is the right's Michael Moore, except she's a lot funnier. Nobody on the right takes her seriously.


Given that lots of people buy her books, and given that she repeatedly gets invited to places like CPAC, where she shares a stage with someone like Romney, what's not to be taken seriously is your claim that "nobody on the right takes her seriously." Again, I'm asking you to contemplate what this looks like to an outsider.

remove the reagents from the shell and store them separately. Later, when ready to use it, mix the reagents in a container.


If it was as easy as you say, it would be done, or at least attempted, more often. When was the last time that happened? Never?
11.24.2008 2:03pm
Litigator-London:
Oren: What we are talking about is conflict of laws and jurisdiction.

Any United States person within the territory of the United Kingdom is subject to UK law. Ignoring questions of diplomatic immunity suppose for example an officer of the FBI or the CIA takes somebody into custody directly without involving the UK authorities. He may well be acting lawfully as a matter of US law, but as a matter of English law that will be unlawful conduct for which he is liable to be arrested and tried and, if convicted, jailed. He will also be personally liable in damages.

If that person is thereafter tortured or subjected to inhuman and degrading treatment whether in the UK or in any place outside the UK, it matter not a damn whether that conduct was lawful under US law, authorised under US law or pardoned under US law. Our courts will take ius cogens jurisdiction and seek the extradition of any person involved if found in any of the 25 countries operating the European Arrest Warrant, any commonwealth country under the Fugitive Offenders Act or any other country with which we have an extradition treaty.

Such jurisdiction could attach to a former President, Secretary of Defence or other high official - see the Pinochet case.

So when an government proceeds internationally in breach of another jurisdiction's laws, it had better reflect on the possible consequences under that law as well as under its domestic law.

Now take the case of Binyan Mohammed a UK resident, though not a British national, detained in Guantanamo whose case has been before the English Courts. It transpired that our Secretary of State had had persons observing his interrogation and who received intelligence papers from US sources. Solicitors for the Applicant applied to the English Court for disclosure, his US lawyers having failed to get such disclosure in the US.

John Bellinger, a State Department lawyer, wrote a letter in effect threatening that if the Court ordered disclosure it would imperil intelligence co-operation between the USA and the UK. I cannot really think of many communications better calculated to get up the nose of an English court.

The Court simply said that it had considered the papers, it considered that they were vital to the proper conduct of the case and in the USA and if they were properly disclosed in the US proceedings that would be and end of the matter, otherwise the Court would consider making an order against the UK Secretary of State in the interests of justice. The US Government backed off and the papers were disclosed in the US proceedings.

The Secretary of State also sent the papers to the UK Attorney General, Baroness Scotland, for her to investigate the circumstances of the detainee's arrest, detention, rendition to a third country, alleged torture there, and further rendition to Guantamo thereafter see whether any offences had in fact been committed.

Thus in both criminal and civil proceedings official conduct arguably lawful as a matter of US law may have repercussions outside the USA.

This may give you an idea of the cans of worms being opened up as matters proceed in these detainee cases.
11.24.2008 2:09pm
John Moore (www):
@jukeboxgrad
I'm juxtaposing those two statements because the irony is obvious and rich. When a guy you like says something unacceptable and offensive, you have a nice alibi for him (that he has "a flair for the dramatic"). But when a guy you don't like says something unacceptable and offensive, your interpretation is that he is someone "who means what he says."

In the absence of other knowledge, including the context in which things were said, that would be true. But it isn't
...destroy the village in order to save it...


My source is Burkette directly, not Charon. And Arnett is hardly the paragon of unbiased reporting - especially about Americas wars. The (rare) practice of bombing villages was rather different, as the VC would infiltrate, the villagers would leave, and they would beg for the village to be destroyed. Not only would that get rid of the dangerous VC, but it would also get them a brand new village, since they were recompensed for those bombings.

If it was as easy as you say, it would be done, or at least attempted, more often. When was the last time that happened? Never?


Very poor excuse for an argument. In psychology, that's known as "normalcy bias." On 9/10, nobody expected some terrorists to kill thousands armed only with box-cutters, either.

The lack of access to those shells is most likely the reason. The Iraqi army intentionally did not mark CW shells. Also, until that incident, nobody knew they had binary weapons, which may mean they only had a few or that they got rid of the rest before the war.

Had the round been marked as CW, the people who found IT probably would have sold it at a nice price to AQ, rather than rigging it up as an explosive IED.

Given that lots of people buy her books, and given that she repeatedly gets invited to places like CPAC, where she shares a stage with someone like Romney, what's not to be taken seriously is your claim that "nobody on the right takes her seriously." Again, I'm asking you to contemplate what this looks like to an outsider.


Actually, it's a heck of a lot more important how it looks to insiders. If you want to assert that Ann Coulter speaks for me and all other conservatives, have at it. It would be dumb, but...
11.24.2008 3:36pm
jukeboxgrad (mail):
moore:

My source is Burkette directly, not Charon. And Arnett is hardly the paragon of unbiased reporting


It seems that you're paying no attention whatsoever. The very credible eyewitness source I cited is not Arnett, and has nothing to do with Arnett.

On 9/10, nobody expected some terrorists to kill thousands armed only with box-cutters, either.


You're a virtual cornucopia of popular mythology. There's no evidence that box cutters were used. Many people have pointed this out, including Richard Miniter, who I think is fairly well-respected in right-wing circles:

A classic case of government spin is the myth that the September 11 hijackers used “box cutters” to take control of the four planes. The tapes of calls from flight attendants and passengers, as well as the black boxes (when they were recovered) do not mention box cutters. In fact, there is a suggestion that other weapons—including acid and a gun—were used.


That "box cutter" meme is hard to kill.

The Iraqi army intentionally did not mark CW shells. … Had the round been marked as CW, the people who found IT probably would have sold it at a nice price to AQ, rather than rigging it up as an explosive IED.


I'm quite familiar with all that. But it's not just that an Iraqi shell has never been used that way. It's that (as far as I know) no binary sarin shell has ever been used that way. Are all binary sarin shells ever made in the world currently inside Iraq? Because they have never been made by anyone else? I don't think so.

it's a heck of a lot more important how it looks to insiders


Really? Why? The way the rest of the world perceives us ends up having a substantive effect on our well-being. You seem determined to deny this.

If you want to assert that Ann Coulter speaks for me and all other conservatives


When you use an overstatement like that, you're being silly. We all know that there is no one in the world who speaks for "all" conservatives. Or for "all" of any group. With the possible exception of the Pope, and Catholics.

I notice you're not addressing the proof regarding Reagan and Saddam.
11.24.2008 4:30pm
Eli Rabett (www):
Moi

Oren, the government's moral authority and the consent of the governed are somewhat like the chicken and the egg. One requires the other.


Oren
No. It's a one way street -- the government's moral authority is created, whole cloth, from the consent of the governed. Consent creates moral authority to govern but government does not (emphatically) create consent.


The government gets its moral authority from the consent of the governed (constitution, US, as in We the people, divine right of Kings, etc.). It RETAINs that authority by moral behavior which does not include torture and the attorney general defending torture. Chicken, egg. Simple stuff really except for those who would defend torture and of others
11.24.2008 8:08pm
Eli Rabett (www):
John, when you say
So Norquist is a small government conservative, with a flair for the dramatic. I guess that makes me somewhat of a fellow traveler. What that has to do with moral authority re: terrorism is beyond me.


You not only are saying my guy good, your guy bad, but you are neglecting the corrosive effects of such nonsense as the government is not the answer, the government is the problem and other such cute saying which have provided us incompetent leaders whose highest good is to help their friends loot the treasury. The government is the people.

If you like living in a dystopia Somalia appears to be on offer. There is a significant difference between saying the government is not working and the government cannot work.
11.24.2008 8:17pm
John Moore (www):
@jukeboxgrad
A classic case of government spin is the myth that the September 11 hijackers used “box cutters” to take control of the four planes. The tapes of calls from flight attendants and passengers, as well as the black boxes (when they were recovered) do not mention box cutters. In fact, there is a suggestion that other weapons—including acid and a gun—were used.


A distinction without a difference. In the context of this discussion, what in the world is the relevance of this?

The very credible eyewitness source I cited is not Arnett, and has nothing to do with Arnett.


Very interesting. Well, since you gave me a link that led to a thread that led to a link to Arnett, I suppose it shouldn't be surprising. I also suspect that Burkette never knew of that source either. Certainly that trope has been used for the last 40 years an a way to trash our efforts in Vietnam. As a Vietnam vet, I find that offensive.

So I'll give you that one, but not the sense in which that quote is normally used and in which you used it.

I'm quite familiar with all that. But it's not just that an Iraqi shell has never been used that way. It's that (as far as I know) no binary sarin shell has ever been used that way. Are all binary sarin shells ever made in the world currently inside Iraq? Because they have never been made by anyone else? I don't think so.


Duh. How many countries possess binary Sarin (not many) that also went into a state of anarchy where terrorists could possibly get hold of them.

You are trying hard, but completely failing to refute the danger of terrorists + WMD. Here's a few questions, actually on the topic of the threat of terrorism (which informs how to deal with terrorists) - time frame: the next 10 years:
1) Is there a real threat of chemical warfare attacks against the United States by terrorists (state directed or otherwise)?
2) Is there a real threat of biological warfare attacks...?
3) Is there a real threat of nuclear explosive attacks...?
4) Does the presence of highly dangerous objects in our society (such as fuel laden 747's or chemical plants or...) change the nature of the terrorism threat compared to traditional terrorism?

I notice you're not addressing the proof regarding Reagan and Saddam.
It isn't even remotely related to the subject of this thread. If you want to go bash America, or Republicans or Bush or whatever, wander over to Kos, or wait for a thread that is related to that issue.

If you like living in a dystopia Somalia appears to be on offer. There is a significant difference between saying the government is not working and the government cannot work.


You seem to have mistaken me for an anarchist or a libertarian. I ask again - what is the relevance to this thread?
11.24.2008 8:59pm
jukeboxgrad (mail):
moore:

A distinction without a difference. In the context of this discussion, what in the world is the relevance of this [that box cutters weren't used]?


It's relevant for two reasons. First, it's one of many indications that you have difficulty getting your facts straight. Second, it's relevant for the reason that Miniter explained. Let's recall what you said:

On 9/10, nobody expected some terrorists to kill thousands armed only with box-cutters, either.


And now note what Miniter said:

box cutters were a pleasing myth; these knives were approved for air travel prior to September 11. If the hijackers used them, it meant that the airports, airlines, private security, and the FAA all did their jobs. Al Qaeda used a loophole. If the terrorists used banned weapons, as some of the doomed passengers and crew said, then it means someone in authority failed.


The point of the 'box cutter' meme (including the way in which it was used by you) is to suggest that we need to be terribly afraid, because 9/11 happened even though everyone did their job, and therefore another 9/11 can happen even though everyone does their job. Therefore we're in extreme danger, and we need to take extreme measures.

The key word in your sentence is "only" ("armed only with box-cutters"). Here's what that means: 'look how terribly vulnerable we are.' Trouble is, you're exaggerating how vulnerable we are. It was not possible to achieve 9/11 "armed only with box-cutters." You're exaggerating how easy it was to accomplish 9/11, just like you're exaggerating how easy it is to use a binary sarin shell without firing it from a gun.

you gave me a link that led to a thread that led to a link to Arnett


No, I did not. I advised you to look at comments here, here, here, here, here, here and here. All those comments are in the same thread. Those comments, in aggregate, provide this many links "to Arnett:" zero. Those comments, in aggregate, provide two links. One is a link to Mona Charen, who is promoting the same misinformation you promoted (when you said the quote I offered is a "myth"). The other link is to Michael D. Miller, Former Captain, US Army Corps of Engineers, Commander, Task Force Builder, 1968, 46th Engineer Battalion, 159th Engineer Group. Miller points out that you and Charen and Burkett are wrong, and that the quote I offered is not a myth.

Certainly that trope has been used for the last 40 years an a way to trash our efforts in Vietnam.


Except that it's not a "trope." A "trope" is a figure of speech, or a metaphor. By calling it a "trope," you're suggesting, again, that the statement is a myth, rather than an authentic quote. Trouble is, it is an authentic quote.

So I'll give you that one, but not the sense in which that quote is normally used and in which you used it.


Except that the way that I used it is perfectly appropriate. Your argument, essentially, is that we have to sacrifice our values in order to save them.

How many countries possess binary Sarin (not many) that also went into a state of anarchy where terrorists could possibly get hold of them.


At one time the US had more than 258,000 M687 binary sarin shells. Therefore it's not surprising to discover that the USSR also had this technology, and transferred this technology to Syria. In all likelihood, therefore, there are more than a trivial number of such shells hidden in the former USSR, and in Syria. And I imagine that you would be among the first to remind us that this means "terrorists could possibly get hold of them." After all, we're very concerned about terrorists getting hold of USSR nukes, right? A sarin shell is much easier to hide and transport. And, according to you, utilize as a terrorist weapon. Trouble is, it's never been done. Which suggests that using it without a gun is harder than you claim.

Is there a real threat …


None of the threats you're describing are existential. This issue was addressed above:

Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community


Except if we let it. Which is exactly what you're advocating.

It [proof regarding Reagan helping Saddam] isn't even remotely related to the subject of this thread


You're joking, right? I suppose it must have been an entirely different John Moore who recently said this:

1) A number of pathogens were purchased from a US based non-profit scientific organization which, in those days, supplied them freely to any scientists.
2) The US did not supply the means to deliver any kind of weapon. The USSR did that. The US government cooperation with Iraq in the Iran-Iraq was was limited to intelligence.


For some strange reason, you had no trouble posting that misinformation, even though "it isn't even remotely related to the subject of this thread." But when I respond with proof that your statements are bogus, you are suddenly very strict about sticking to "the subject of this thread." Interesting how that works. Your operative principle seems to be that it's perfectly OK to make statements that aren't "even remotely related to the subject of this thread," but only if they're false.
11.24.2008 11:05pm
Oren:

It RETAINs that authority by moral behavior which does not include torture and the attorney general defending torture. Chicken, egg. Simple stuff really except for those who would defend torture and of others

In your hypothetical, does the government have continued democratic support for their policies?
11.24.2008 11:08pm
John Moore (www):
@jukeboxgrad

Boxcutters, whatever...

You continue to nit pick, without dealing with the real issue. The obvious conclusion is that you are unable to refute the fact that modern terrorism is far more deadly than in the past, to the point requiring a different classification and different reactions.


Your continuing to reinforce your normalcy bias is tedious. I'm not going to debate it any more.

Nor am I going to go back and forth with you on the trivia of who does or doesn't have binary Sarin, etc. You are determined to prove, by waving your hads, that terrorists will not get hold of binary Sarin, simply because they haven't already. I hope you don't drive your car with the same kind of caution.

None of the threats you're describing are existential

Then you aren't paying attention. You are also hung up on the word existential, as if a threat which merely killed a few tens of millions, while not utterly destroying our nation, is not to be considered.

However, the bio threat IS existential.
11.25.2008 1:27am
jukeboxgrad (mail):
Your continuing to reinforce your normalcy bias is tedious


When trying to make a forecast about future events, it's appropriate to take into account whether or not a particular event has ever happened before. Prior to 9/11, WTC had already been attacked. Also, prior to 9/11, there had been multiple attempts to use an aircraft as a missile. And, needless to say, there had been many hijackings. Therefore, even though we are frequently told that 9/11 could not have been anticipated, that's baloney.

On the other hand, here's something that has never happened: a terrorist attempting to use a binary sarin shell as a chemical weapon. That doesn't mean it can't or won't happen. It just means it's appropriate to consider what we might be able to learn from the fact that it's never happened.

You continue to nit pick


English translation: 'you insist on noticing that I can't get my facts straight.' When you start with bogus facts, you're going to arrive at bogus conclusions. And it's become obvious that you have no interest in correcting your bogus facts, even after they've been proven bogus.
11.25.2008 4:07am
Eli Rabett (www):
Eli
It RETAINs that authority by moral behavior which does not include torture and the attorney general defending torture. Chicken, egg. Simple stuff really except for those who would defend torture and of others


Oren
In your hypothetical, does the government have continued democratic support for their policies?


Obviously the government can manufacture support over some period of time for such policies (Chile, DDR, Sadaam, etc.), but in the end it will require more and more suppression, torture and gulags to do so. At some point popular support collapses as the nature of the government becomes clear. If a people is lucky it does so at a point where the government is still constrained to honor electoral change (US vs Zimbabwe).

Robbing the government of moral authority is the first goal of terrorists. Terror is their tactic to force broad repression which alienates the people. The Norquistian nonsense has the same goal, to alienate the people from their government so that it will collapse. There is a commons, it is necessary unless you favor gang leaders, warlords and dystopias.
11.25.2008 9:06am
Oren:
Manufactured consent is not consent. So I'll ask again (I'm really not trying to be trite here): does the government in your hypothetical have genuine consent for its policies?
11.25.2008 11:22am
Eli Rabett (www):
Oren:
Manufactured consent is not consent.


You serious? Google Colin Powell UN for a start.
11.25.2008 12:09pm
Oren:
There is no notion of the "consent of the people" at the UN because the UN is not a democratic organization. I have no idea what Colin Powell's prevarications have anything to do with this debate.

Please answer the question I posed at 11:22, and, followup question: does your sense of international justice entitle you to contravene the direct desires of our democratically functioning government? In other words, is there some principle that you regard as being superior to the sovereignty of the people?

If the answer is yes, please elucidate that principle.
11.25.2008 3:46pm
Eli Rabett (www):
Geez, looks like you were not around when Powell prevaricated about Iraqi WMDs and manufactured consent for a war both internally and externally (see Cohen, Richard for a particularly pitiful example). As to where the UN gets its authority from, Eli strongly suggests you actually read the charter:


WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDS

to practice tolerance and live together in peace with one another as good neighbours, and

to unite our strength to maintain international peace and security, and

to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used,save in the common interest, and

to employ international machinery for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS

Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.


You can certainly argue that the execution has been imperfect (OTOH Eli would argue that much of the disregard for the UN arises from this loss of moral authority), but you can't pretend it is not there.

Finally, Eli would recommend you read a bit about international opinion in the 1850s and slavery in the US if you are wondering when a sense of international justice should have contravened the direct desires of our democratically functioning government. Really, this is getting too simple.
11.25.2008 6:09pm
Oren:
(1) Stop talking about yourself in the third person. We're going to start thinking you are mental or something.

(2) The UN is, be design, not democratic. It does not operate on the principle of proportional representation nor does it even claim to be based on the consent of the governed. In fact, it usually makes demands that it insist must be respected contrary to the desires of the governed.

(3) If you want to argue that the invasion of Iraq was illegitimate by virtue of the public being deceived, that's fine, but LL was arguing on entirely different grounds. Given how fast we are switching between arguments here, it's becoming quite difficult for me to remember to what argument exactly I'm responding.

(4) Slavery was a problem in the United States that needed to be resolved by the People of the United States. The relevance of international opinion is lost on me.

Of course, for the period of time in which slavery was a democratically ratified policy, the People bear the responsibility for that sin. The government, on the other hand, was simply fulfilling its duty to act as the agent of the People's will and is blameless. We created the problem, we'll solve the problem -- how this is anyone's business is entirely beyond me.
11.25.2008 7:43pm
Oren:
Ironically (and unfortunately for you guys), the ECJ ruled recently that UN security council resolutions "cannot have the effect of prejudicing [regional] constitutional principles" and that "international law can permeate [the European Community] legal order only under the conditions set by the constitutional principles of the Community."

So the European countries must, in fact, ignore the UN Charter in certain cases (let alone merely having the option of doing so).

This is the usual state of affair -- we hold our values dearly and the Europeans hold their values dearly. International Law, so far it is in conflict with those values, must yield.
11.25.2008 7:49pm