Saturday, May 23, 2009

Wars must be won

We are at war.

We can play word games, squabbling over whether it's a war "on terror" or against Islamofascism. We can embrace absurdity by speaking of "man-made disasters" and "overseas contingency operations." None of this changes the reality that there is a large group of people who are actively trying to exterminate us. They are fanatical. They are irrational. They are unrelenting. And they absolutely want us dead.

We are at war.

So it's maddening when so many people fail to understand that we are at war, or persist in thinking that the social framework we've adopted to manage our internal affairs are adequate to defeat those who are not bound by that framework and will do anything to destroy it.

Case in point: Anthony Romero, executive director of the ACLU, who does a Q and A with The American Prospect.
Were you assuaged at all by the president’s explanation for reinstating the military commissions?

No. It really is an enormous mistake to continue with the failed military commissions. The mistake that George Bush made in trying to jury rig a legal system and create a new one from whole cloth appears to be the same mistake that President Obama is intent on making. These military commissions will never render justice. Because of their failed work over the last eight years, they are essentially radioactive, they lack any credibility. Obama's efforts to make them a little more just, provide a little bit more due process, and make them a little less offensive, is not going to carry the ball at the end of the day.
I'm neither a lawyer nor an historian, but these are troublesome remarks. First, to speak of "failed military commissions" is grossly unfair. According to Wikipedia, only three cases have been brought against suspected terrorists. The first was settled with a plea bargain, and the other two were dismissed on jurisdictional grounds. The only sense in which the program can be judged a failure is that it hasn't been allowed to proceed due to legal challenges from groups like the ACLU.

Second, it's simply false that Bush tried to "jury rig a legal system and create a new one from whole cloth." The use of military commissions dates back to the 17th century. Here in the U.S, George Washington used them, as did Andrew Jackson, Abraham Lincoln and FDR. This is not to say that there haven't been challenges to them historically, but to claim that Bush pulled them out of his hat is unfair.

Third, in 2006, Congress passed The Military Commissions Act, which not only authorized the use of these commissions, but designated a system for appealing their decisions. In establishing the commissions, the Department of Defense addressed objections raised by the Supreme Court.

So, given that military commissions have been around "forever," and that all three branches of government were involved in crafting their current incarnation, and that no convictions have yet been made, Romero is way off base in characterizing them as jury-rigged, unjust, or failed.
Do you intend to challenge the president’s preventive detention policy in court?

Yes. The stated need for a new statutory regime, enacted by Congress and signed by any president that would allow the government to indefinitely detain individuals without charge is a momentous departure from American jurisprudence. Under established American law, we have to charge, convict, then detain, and if a conviction is not received we must release. We have never allowed that system to be tampered with in any significant way. And to now propose a lawful strategy for securing the same indefinite detention powers as George Bush is completely wrongheaded. He might get the process right, but the outcome will be the same.
Like many others, Romero fails to see a distinction between maintaining order in a free and civil society and fighting an existential war. Prosecuting captured combatants as domestic criminals is foolhardy in the extreme. The battlefield doesn't allow for things such as Miranda rights, crime scene investigation, chain of custody procedures, presumption of innocence and the host of other protections required by our criminal justice system.

Furthermore, extending constitutional protections to foreign combatants is not only impractical, it is inappropriate. Our criminal justice system is primarily internal and reactive. It's designed to catch bad guys and prosecute them for acts that violate the social charter under which we (and they) live and operate.

War is a different game entirely, with different rules and objectives. The goal, quite simply, is to win. To do this we must be proactive, seeking out and destroying an enemy that, left alone, will seek out and destroy us. Administering justice after the fact is inadequate. It is a losing strategy.

Those who are, right now, plotting the next 9/11 attack do not live under our social contract. They have no claim to it, nor do they have any reasonable expectation of protection under it. Our constitution exists to govern America and those within it, not those who would destroy it from without.
What do you think of the the president’s assertion that there are people we have to detain, but can’t convict either in military commissions or federal courts?

I don’t believe that’s the case. I think the proliferation of laws enacted after September 11th give the government a remarkable array of law enforcement tools to use in prosecuting individuals. And if the government after eight years of work, with all of its vast resources [and] agencies working together, has not been able to render evidence that would reliably stand up in court to convict someone, then they did something wrong. And that means individuals who are not convicted must be released. The biggest mistake would be to tinker with the American legal system in an effort to hang on to 20 or 30 individuals that can’t be processed. Guilty people walk every day in American criminal courts because the system breaks down, or prosecutors fail to have the evidence, or law enforcement officials bend the rules in those prosecutions. That doesn’t make us less safe, it makes us stronger as a country when we adhere to legal principle, and a system of rules that are not changed for a preordained outcome.

This last part is just silly. Setting guilty people free most certainly makes us less safe. I suspect Romero simply let his words get away from him while trying to make the larger point that our legal system is up to the task of protecting us. Unfortunately, this larger point is also silly. Our criminal justice is indeed an important tool in keeping us safe, but it wasn't designed to defend us against terrorism, and if we rely on it to do so, we will be defeated.

The question, which Romero didn't adequately answer, is what to do with hardcore terrorists who can't be convicted under our conventional legal system. To simply release them, as he suggests, would be foolish. Why give them a second chance to rejoin the war and take more innocent lives? There have been numerous reports of exactly this happening even among the "less dangerous" detainees which were released under the Bush administration. You don't win wars by letting captured prisoners return to the battlefield. You hold them until the war is won, and then decide what to do with them.
Jack Goldsmith, who was a lawyer for the Office of Legal Counsel during the Bush administration, suggested that there was very little practical difference between the Obama administration and the Bush administration on anti-terrorism policy other than a consciousness of public opinion. Did you hear anything that you found reassuring in Obama’s speech yesterday?

Yes. I think what’s meaningfully different between the dueling speeches of President Obama and former Vice President Cheney is that we recognize torture has occurred. That torture is wrong and it was not an effective way to deal with the interrogation needs of the government. The second difference between Obama and Cheney is that the president has shown a willingness to have greater scrutiny and subject himself to greater control of Congress and the courts. It’s not the same old unitary executive arguments that we’re heard from Bush and Cheney.

Torture is a loaded word, and we can argue forever about what it means and where to draw the line. But Romero is repeating a common argument that is contradicted by the known facts. Those who have seen the classified data--Republicans and Democrats; Obama, Bush, or Clinton appointees--agree that high value information was acquired through the interrogations in question, and that innocent lives were saved because of it.

As for Bush subjecting himself to Congressional scrutiny, if news reports are to be believed, Congress was briefed on and approved of both the military commissions and the interrogation techniques Romero speaks of, so his assertion that Bush exceeded his authority on these issues rings hollow.

I remain at a loss as to why people such as Romero can't distinguish between fighting domestic crime and fighting a war, or why they insist that enemy combatants are entitled to constitutional protections. I don't think these people hate America, and I believe they are trying to do what is right. But I feel sadly certain that they are harming America, and costing innocent lives.

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