{"id":9968,"date":"2006-10-04T06:30:10","date_gmt":"2006-10-04T13:30:10","guid":{"rendered":"http:\/\/hill-kleerup.org\/blog\/wp\/2006\/10\/04\/allow-me-a-brief-rant-if-you-will.html"},"modified":"2006-10-04T06:30:10","modified_gmt":"2006-10-04T13:30:10","slug":"allow_me_a_brief_rant_if","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2006\/10\/04\/allow_me_a_brief_rant_if.html","title":{"rendered":"Allow me a brief rant, if you will"},"content":{"rendered":"

I listened to an interview with John Yoo <\/a> this morning on NPR. Yoo is a law professor at Berkeley<\/a>, He also served as a deputy attorney general 2001-03, and helped formulate many of the Bush Administration’s policies on dealing with enemy combatants.<\/p>\n

The interview — which was prompted by his new book, War by Other Means<\/em>, and which focused on the new Detainee Bill recently passed by Congress — confirmed for me any number of worries I’ve had over the legal and existential foundation of the Administration’s War on Terror. They center on the whole concept of our being at war, and thus needing (or being able) to act as though we are at war.<\/p>\n

Metaphorically, the description works. Dealing with groups that vary from armed, bomb-setting militant guerrillas to suicidal terrorist cells, violent action against the US, its allies, and its interests is something that cannot be treated purely as a reactive police and criminal justice matter.<\/p>\n

But traditionally war is distinguished by, among other things, an identifiable organization (usually a government) that we are trying to defeat, defeat being either killing them all, robbing them of their ability to act against us (e.g., through occupation), or making them realize their efforts to continue aggressions are more costly than beneficial.<\/p>\n

The War on Terror is something very different. There is no definable, encompassing target. If every member of Al Qa’eda were taken out tonight, the WoT would continue, because other organizations would arise in their place. In both Afghanistan and Iraq, let alone the other locations that terrorist or terror-supporting folks operate, we’ve seen that the prospects of killing them all, occupying them to prevent their aggressions, or getting them to realize that their aggressions will cost them
\nmore than they will benefit them, are passingly slender. We have, at best, scored some victorious battles. <\/p>\n

The war, though, is no closer to being won, because it can never be won<\/em>. There’s no country to occupy. There’s no munitions industry to bomb. There’s nobody to negotiate with, or sign a treaty alongside. It is not a war<\/em>, it is a security condition<\/em>. It’s dangerous as all hell, and action needs to be taken, but it’s not something that lends itself any better to wartime strategies (roll in the tanks, unleash the bombers) than police strategies (round up the
\nusual suspects).<\/p>\n

The problem is, by calling it a war, by getting war powers, the Administration has taken upon itself any number of further abilities and tactics that were not designed to deal with the current situation. Which brings us around to the Yoo interview, which is chillingly worth listening to<\/a>, and which can be summarized in two points:<\/p>\n

    \n
  1. \nThe current “enemy combatant” legal system, as now defined by Congress, isn’t perfect, but neither is the criminal justice system, so it should be given a pass.<\/li>\n
  2. \nWhat we’re doing is substantively no different from what has been done during war in the past.<\/li>\n<\/ol>\n

    The first point is ludicrous. Granting that no human or judicial system can be perfect, that does not excuse flaws that can be addressed. The restrictions placed by Congress, though (and apparently supported by Yoo and by the Administration), not only are flawed, but the cripple the feedback loop that identifies problems in other systems and allows the opportunity for correction, by severely limiting the appeals process if someone’s situation is not being addressed properly. Yes, if everyone
    \ndoes their job right, honestly, wisely, and diligently, we won’t have too many problems. To build a system around such an assumption, though — a system that relies on such an assumption — is foolish at best, and a grave miscarriage of justice waiting to happen.<\/p>\n

    The second point, though, is where the wheels come off in my opinion. It’s best seen here:<\/p>\n

    \n

    “Well, it’s not a criminal trial,” says Yoo. […] “This is part of the way the rules of war have worked for a long time,” he says. “The military proceedings to determine if you’re an enemy combatant usually don’t require as much proof. You know, the point of the war is not to collect evidence and solve crimes. It’s to fight and defeat the enemy. So I think this sort of flexible process reflects the demands and the nature of warfare.”<\/p>\n<\/blockquote>\n

    Except it’s not warfare<\/em> in the traditional sense. <\/p>\n

    Leaving aside the whole issue of the greater fuzziness of who’s an “enemy combatant” vs. a “prisoner of war” (which, itself, is telling), and which means that folks being so accused may be found and identified as ECs in far more ambiguous circumstances than a guy in uniform defending a bunker with an enemy flag over it, one can argue at the very least that someone identified as an “enemy” during, say, WWII, faced at best a few years in prison, even if innocent. Ditto for WWI, Korea, etc. Those wars
    \nhad defined end points (even if they weren’t predictable at the time). Someone wrongly accused of being an EC in WWII faced what turned out to be a five year sentence, tops.<\/p>\n

    Someone wrongly deemed to be an EC now<\/em>, in the War on Terror, faces a life sentence<\/em>. Or a sentence of convenience, until the Powers that Be decide the person is no longer a threat, at which point, assuming that anyone will take him or her back, the person is sent away. That could be tomorrow. That could be a decade, two decades, three, four away. <\/p>\n

    The irony is, that in a traditional war, a more “flexible process” is necessary because you simply don’t<\/em> have the time on the battlefield to deal with every specific case. But we’ve set up a system where there’s all the time in the world, a lifetime in fact — and where all that time can be simply ignored because it’s too costly or inconvenient to do anything with it.<\/p>\n

    That’s just wrong.<\/p>\n

    What’s the answer? Damned if I know — but some sort of middle ground is certainly necessary to deal with the very real threat that groups like Al Qa’eda pose, and will continue to pose, whether it be on quasi-traditional battlefields, on airplanes, or on back streets around the world. That threat isn’t something that can be ignored, but it isn’t something we can afford to treat like traditional war, either in our military tactics or in our expedited judicial handling of those accused<\/em> of
    \nbeing our enemies.<\/p>\n

    There. A nice “brief” rant. Harrumph. Please be about your business, citizens.<\/p>\n","protected":false},"excerpt":{"rendered":"

    I listened to an interview with John Yoo this morning on NPR. 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