Keeping our hands clean: what the law has to say about it
I was listening to a talk show last night in the car and heard an impassioned defense of the SCOTUS decision in Boumedine (see yesterday’s post for my opinion of the merits of the case).
The caller was not only in favor of the Court’s ruling to extend habeas corpus rights to noncombat enemy aliens in Guantanamo, he was clearly very moved by what he felt this meant for the country and the world.
I’m paraphrasing, but his statement went something like this:
This decision is a wonderful day for our country, not because of the legal issues or what it does for the prisoners. It’s about who we are as a country and a people. It’s about the fact that we haven’t lost our souls, that we champion human rights around the world, that we are a beacon for freedom, that fear has not stopped us from that. If we surrender those rights we become as bad as the enemy. We become what we hate.
This is what I have come to think of as the “clean hands” argument (discussed in a different context here). In the last few years I’ve noticed it used a great deal by the more idealistic wing of the Left, and it’s a compelling and attractive one in some ways.
Who wouldn’t want to extend every right we enjoy to every human being in all circumstances, if possible? Who wouldn’t want to be a country (or a person) above reproach, a light unto the nations? Who wouldn’t want to feel good about him/herself?
However, we exist in the real world where decisions and actions have consequences. The knowledge that good intentions can so often lead to terrible results is an ancient one. That’s one of the reasons we have law.
In the case of a Supreme Court decision, for example, the Justices are prohibited from merely deciding what is “good” in terms of the outcomes they want, or what they might think would be morally correct. They render “opinions,” it’s true—but not personal opinions about right and wrong.
For instance, in the case of abortion (a hotly contested moral issue if there ever was one), they are not supposed to apply their personal moral guidelines, they are merely supposed to apply the law and to interpret it. In Roe v. Wade, for example—whether you agree with the decision or not—the Court did not rule on whether abortion was right or wrong, or whether it was desirable or pernicious. It ruled on whether it was constitutional for a state to prohibit it. In order to do that, the Justices looked to the Constitution and found a right to abortion that came under the rubric of “privacy,” which the majority asserted to be a fundamental right under either the Ninth or the Fourteenth Amendment.
You can argue—and many, many, have—that this was a case of judicial overreach, inventing a right where one did not exist before. But my point is that courts are not supposed to base their decisions on moral arguments alone, only legal ones (hopefully, to achieve moral ends).
Most people are not Supreme Court Justices—or even lawyers, which is probably a good thing. Most people have reactions to court decisions based on their own moral belief systems. Therefore, very many people who disagree—or agree—with Roe v. Wade do so because they want abortion to be illegal or legal, based on their own needs and/or moral code rather than the law. Legal reasoning is complex, court opinions convoluted, and few people read or truly understand them; even legal scholars disagree mightily.
How many people, for example, know what Roe v. Wade was really about? That it didn’t actually legalize abortion, which was already legal in many states at the time? That what it did was to prohibit states from prohibiting it? That if the ruling were struck down, it would mean only that states have the right to prohibit it or legalize it, as they wish? That it depended on finding a right of privacy in the Constitution that is never explicitly stated, but that the Court felt was implied in the Fourteenth Amendment’s concept of personal liberty?
Much—but not all—of the reaction to Boumedine is along similar lines, in that most people outside of the legal profession disagree or agree with it based mostly not on the legal reasoning involved but on whether they like the result.
Some praise the decision because they feel it checks recent inroads made by the Bush Administration on “our rights.” But it’s hard to see how this decision could possibly affect the rights of anyone other than an illegal enemy combatant. Anyone making this point is really either using the “clean hands” argument (“the most important thing is for us to be morally pure”), or sees the denial of habeas corpus rights to these particular prisoners as a slippery slope (“first it will be denied them, then it will be denied us”).
The clean hands argument has the flaw of being ignorant of other adequate remedies readily available (the safeguards already provided by the Congressional statutes); and unrealistic in its assessment of the possible legal, moral, and practical consequences and risks of the SCOTUS ruling. For example, judicial overreach that violates the system of checks and balances in the Constitution has its own danger and its own slippery slope. If Congress, which is specifically granted the power to make rules about the treatment of prisoners such as these, has already passed laws that preserved their rights and that have not yet been applied and found wanting, why do these laws need to be prematurely overruled by the Court? Does this not set a very dangerous precedent, one that even could someday be used to upset the balance of power and erode our rights?
Another possible real-world consequence that is being ignored by those mounting the “clean hands” argument (in addition to this) is one that has been mentioned on many blogs: since these are illegal enemy combatants and not covered by the Geneva Convention, to avoid these matters in the future the military might instead summarily execute such people on the battlefield, in keeping with hoary tradition—and, by the way, with the traditional law of war. That would lead to far “dirtier” hands, and far less moral purity.
Although legal decisions are required to be rendered on legal grounds rather than simply on moral ones, that’s not to say that the law is meant to be amoral. It’s merely that our law is a rule-based system by which to arrive at, and to preserve, as just and moral form of society and government as is realistically possible (which is not the same as moral perfection). The underpinnings of our legal system are both moral and practical, and can be summarized as follows: the need to provide civil order and safety while at the same time preserving individual liberties. It’s a balance, although Left and Right disagree on that balance and on how best to go about preserving it.
“Does this not set a very dangerous precedent, one that even could someday be used to upset the balance of power and erode our rights?”
That would indeed be a slippery slope.
Neo,
Are you familiar with Lee Harris – his articles and books? He takes a very pragmatic approach to the ethical dilemma posed by Islamic jihad: that this enemy is so extraordinarily vicious, uncivilized, dualistic, and irrational that a “clean hands” approach to fighting this enemy amounts to civilizational suicide. This enemy is so narcissistic and psychotic that it is rather immune to the application of our civilization’s “The Golden Rule.” They don’t recognize it. It is utterly alien to their world view and theology, and thus we are stuck in a position of having to defeat this enemy with utter ruthlessness, or not survive at all.
Here is a link to one of his articles. Anyone can google up Lee Harris and find a lot of links to what he’s written on the subject.
http://www.nytimes.com/2008/01/06/books/review/Ali-t.html
I realize that my response to your post strays outside of a discussion of the legal points of the SCOTUS decision. However, I find that the legal profession as a whole seems tunnel-visioned when dealing with the context and conflict which these decisions touch upon.
I know a liberal (a cousin of my wife’s) who buys into the “clean hands” argument across the board, to include the methods of interrogation of the shaheeds. He is into Greek philosophy and Greek history and he contends that, drawing from the lesson of how Athens went wrong in the Pelloponesian War, that when Athens decided to be a ruthless, imperialist culture it lost its soul and became like its enemies. We have some interesting discussions, back and forth, since I am more in agreement with Aristotle and he is more in agreement with Plato. I find people who are Platonists tend to be rigidly idealistic, to the point where even human lives must be sacrificed in order to maintain the purity of the ideas.
Treating shaheeds like criminals inside our justice system is suicidal, not ethical, since in my view it greatly puts human lives at risk. And as a Christian the defense of human life trumps all other considerations. One of the unintended consequences of the SCOTUS decision is going to be “shoot, shovel, and shut up,” which goes against the grain of our military culture. It means we are going to have to be extraordinarily ruthless in how we conduct military operations against this enemy. Complete extermination will replace the customary military objective of causing your enemy to lose the will to fight and give up.
We are in this morass because our leadership has not clearly defined our enemy and named it correctly. The vapid “war on terror” creates all sorts of problems, and opens the door for the legal Left to sap our war fighting capabilities. Our culture also does not have a clear understanding of the value of human life, hence the defense of does not take on the urgency it should. We are more zealous about what other people think of us rather than doing the right thing. Lee Harris touches on that in his analysis of the very dangerous place we are now at.
“Does this not set a very dangerous precedent, one that even could someday be used to upset the balance of power and erode our rights?”
Considering we elected Congress and the president and they were overruled, it already has.
The point being, supporters of the Court playing politics don’t care either. They’ll use any method to get what they want. Then they’ll rationalize it (re: see trolls) as being all good….
Anyway, it is dangerous and people should consider that before they vote for the next president. Today it is civilian courts for people captured by the military. What tomorrow?
“to avoid these matters in the future the military might instead summarily execute such people on the battlefield, in keeping with hoary tradition–and, by the way, with the traditional law of war. That would lead to far “dirtier” hands, and far less moral purity.”
On the plus side… knowing we’re just going to shoot them for breaking rules… it might finally motivate the other side to play by the rules…. Wear some kind of identifying mark as a uniform, not shoot civilians, honor our surrenders, not perform fake surrenders themselves, et cetera…
Those supposed Platonists you argue with don’t sound like they understand Plato, to me FredH. Not that it isn’t easy to do, misunderstanding Plato. He didn’t want it to be easy.
As to ‘who we are’, I’ve noticed that the left thinks they’re right simply for showing up. Re: as long as they present an argument, it’s done. They win. I notice it in lefty books (for example, it’s built into Chomsky’s style) and when talking with them. They don’t get the shades of grey / nuance thing that they always accuse conservatives of (a true, but weak argument, does not equal or counter / cancel out, a much stronger argument)…
Also, they must always claim to have the moral high ground.
Well… they have ‘an’ argument here and they claim the Court’s upsetting the checks and balances of government is ‘good’… well, it’s a weak argument based all on opinion and all it shows, to me, is they don’t respect rules when they don’t suit them…
I think the most important thing an educated non-lawyer citizen needs to understand about the law is that “constitutional” does not necessarily mean “right” or “good” or “desirable.”
There are many laws that might do wonderful, wonderful things, that 99.9% of the population would support… yet violate the U.S. Constitution, and must be struck down by a properly functional judiciary.
And there are horrible laws, even evil laws, that nevertheless violate no part of the Constitution in any way, and the Supreme Court won’t (or shouldn’t) do anything about it.
The thesis of the ultimate goal of a legal system to strike a balance between security and mantaining civil order, on one hand, and protecting individual liberties, on the other hand, has the following consequence: this balance can be different for peace time and war time, and also for citizens and aliens. It is a compromiss, not an absolute, so it never can be perfect and not adjustable.
There was a lengthy discussion on Maxed Out Mama a few days ago that aired a lot of the issue. (I sided against SCOTUS, and did a decent job of it.)
One thing I would urge for anyone who wants to think clearly about this problem is to read Philip Bobbitt’s The Shield of Achilles. (I have no financial interest!) Much of our difficulty is that our conventions and protocols of war, internal and external, presume that we are fighting a State. We have never faced a non-state actor that posed an existential threat to us, and many of the objections to our actions suggest we fall back on protocols and conventions that do make that assumption. (A critical point: there is no individual or cadre whose defeat or surrender will collapse the threat.) One can argue how effective they can be at carrying out their goals; I ask in reply how effective you are willing to let them be?
The Shield of Achilles is not an easy read, and the hardest part is the introduction. If you do not grok it on the first read (I did not, and I am no lightweight) then you need to read it again, and again until you do; it is the key to the whole work. It is the pons asinorum of the book and, I think, of the whole subject.
Neo, I especially hope you will start on this book, and comment on it. It is no easy read nor a short one but it has more to say about the history and possible futures of Western governance and society than most whole libraries.
And, of course, one should read the actual SCOTUS decision and the two dissents.
too many penumbras here…
the courts decision on abortion WAS a ideological one, even roe changed her mind later. the argument came literally out of thin air, and was not based on an actual privacy issue, but the false concept of penumbras from other rights.
this is why they have been very afraid ever since.
its why stem cells were such a big deal… if they went the quick way as they saw it then, fetal stem cells would have given them a reason to preserve abortions. but by forbidding it morally, we have found a rich supply of all kinds that the body makes and now can make them from other cells. the progress is staggering. and of course you dont really hear stem cells as an argument.
many deny the history, and purpose. jesse jackson was working hard against the 4X higher rate of clinics in black neighborhoods, and then the dems courted him, and suddenly silence.
its soft eugenics… it actually provides a way that a wealthy racist can actually fund the euthanasia of black children, by making donations.
Planned Parenthood: Wanting fewer blacks ‘understandable’
A student-run magazine at UCLA has revealed an undercover investigation in which representatives of Planned Parenthood, the nation’s abortion industry leader, admitted willingness to accepting a financial donation targeting the destruction of an unborn black baby.
Lila Rose, who edits The Advocate, previously revealed how Planned Parenthood officials expressed a willingness to conceal statutory rape, an investigative piece that earned her an appearance on the Fox News Channel’s “The O’Reilly Factor.”
According to Bryan Fisher, executive director of Idaho Values Alliance, Planned Parenthood, which gets an estimated $200 million annually from U.S. taxpayers, has located nearly 80 percent of its clinics nationwide in minority neighborhoods, and about one-third of all abortions are performed on blacks, even though they make up only 13 percent of the population.
The Advocate released a transcript of a conversation between an actor presuming to be a racist and wanting to make a donation, and a woman identified as Autumn Kersey, vice president of marketing for Planned Parenthood of Idaho.
Actor: I want to specify that abortion to help a minority group, would that be possible?
Planned Parenthood: Absolutely.
Actor: Like the black community for example?
Planned Parenthood: Certainly.
Actor: The abortion — I can give money specifically for a black baby, that would be the purpose?
Planned Parenthood: Absolutely. If you wanted to designate that your gift be used to help an African-American woman in need, then we would certainly make sure that the gift was earmarked for that purpose.
Actor: Great, because I really faced trouble with affirmative action, and I don’t want my kids to be disadvantaged against black kids. I just had a baby; I want to put it in his name.
Planned Parenthood: Yes, absolutely.
Actor: And we don’t, you know we just think, the less black kids out there the better.
Planned Parenthood: (Laughs) Understandable, understandable.
Actor: Right. I want to protect my son, so he can get into college.
Planned Parenthood: All right. Excuse my hesitation, this is the first time I’ve had a donor call and make this kind of request, so I’m excited, and want to make sure I don’t leave anything out.
The investigation included calls to Planned Parenthood in Idaho and half a dozen other states
so each law, angle, and such has been worked out as to the real effect they would have…
then a ulterior message to sell it is given.
take the tax on oil… the news said such a tax would lower teh price now… but we all know it wont… so the actual outcome is what they desire, and the lie is the sale.
here is a prop video that cuts together the audio of the calls
http://www.youtube.com/watch?v=Eygv8qEkiFE
by the way… abortion on demand was first created in soviet russia… (as was no fault divorce, and lots of other things that the left has put ehre too).
i have to get going home… but i will probably get winded on the rest of the salient points of your post.
[by the way, i havent said it, and i am remiss… its a very good blog you have here neo!]
njcommuter,
I am not a lawyer and lack a legal education. Would that book be difficult for someone whose background is in economics and philosophy? Actually, after my M.A. in Philosophy (as a Jesuit) I went on to get an MBA in Finance after I left the Society of Jesus. I read much of Justice Robert’s dissenting opinion and I managed to get the gist of it, but oftentimes legalese leaves me flummoxed, with so many dangling phrases and qualifications.
Islam was only a truly unified state under the Caliph, but a perusal of the jihad history shows that jihad was waged without the Caliph’s approval or participation, often by provincial war lords and emirs. Their method of warfare most of the time was irregular. They didn’t wear identifying uniforms. Even the Caliph’s armies, while they had banners for identification of force and maybe tribes, did not have uniforms. The shaheeds mainly had to finance their own horses, armor, and weapons.
It is true that our elites operate out of assumptions and templates that do not fit the situation at all. What is maddening about this is that very few show any interest at all in familiarizing themselves with the jihad history (there are 1,400 years of it) and the justification for jihad in the Qur’an and ahadith. Literally, these highly educated people from our most elite institutions CANNOT THINK OUTSIDE THE BOX and overcome intellectual sloth to get up to speed.
Most of jihad is waged by irregular forces. Think of Quantrill’s Raiders in Missouri and Kansas during the Civil War. A lot of Union Army officers looked down on the raiders and considered them JUST CRIMINALS (sound familiar?); other Union Army officers saw them as irregulars who were in fact waging war on behalf of the Confederacy.
If you understand the goals and means of your enemy, then you can free your mind to think outside the box and appreciate their capabilities and what your vulnerabilities are. And that is the key. This enemy has a long established history of many centuries, from its inception actually, of fighting as irregulars. Once you understand that, then your thinking gets past the current ossified templates that hamstring us and cause us to be a society at war with itself.
Civilizational suicide is not an option. Defeat is unacceptable. The pacifists, idealists, and socialist misfits truly have no idea what we are up against and what will happen to their comfortable world if the Ummah gradually extinguishes the civilization that has nurtured their sense of security.
njcommuter Says:
“We have never faced a non-state actor that posed an existential threat to us, and many of the objections to our actions suggest we fall back on protocols and conventions that do make that assumption.”
If you took existential out, then we have. Various pirates and such…
Will the lefties be as happy when terrorist are killing their families?
Scrapiron:
they have had too good a life. the fellow travelers are running on the notion that they will have places of power… but history shows they are the first to be gotten rid of, after all, they defeated the enemy, something that the ones coming in couldnt do. they are also so far gone on their methods that they are no longer integratable.
the childs lesson in this is in the first book of narnia, and even in the first movie.
the useful idiots have been seduced. the other side has painted exit signs on the doorway to their deaths and misery, and they gladly march to it.
arbeit mach frei
however if you look at the different parts, each of the parts work together. so its not an accident.
removal of religion helps create religious zeal for the state.
removing our natural life purposes and making our lives meaningless (gender apartheid, gender marxism, etc), means we are more likely to join a cult type thing in which we find meaning.
dumbing down the schools creates work units that cant think clearly enough to wake up and realize
even the assault on psychology, which psychologists react even more that it hasnt happened (the same man who normalized homesexuality has moved on to beastiality, since the prior job is done. and kinsey a perverted pedophile who hired criminals to assault babies while he watched was used to sexualize our view of kids, and meade was to do the same for women, but she lied. there are doezens of others. but the fact that the frankfurt school was a group that used psychology and think tank methods to design outcomes, then figure out how to sell them)
this slow pace will not continue…
what happens is that a ‘state’ change happens like in physics.
liquids dont turn to gasses instantly…
if you lowered the temperature of water slowly.. you would see water… till you got below a certain point and then you get ice.
if you cool it bast this transition point fast enough, then the whole of the mass can be lowered. then the state change is almost instant.
so everyone of the idiots thinks that if it goes too far (which it already has), then they can just change direction and take it back.
tell that to the people of venezuela who have a leader giving their food and money to farc, and who have 25% inflation… people are starving, and children are now malnourished in record numbers..
how long did it take? less than two years… and he isnt done… he is creating a situation where he can retain power… putin has done the same thing and has played the letter of the law, so will avoid the uprising. remember, when lenin realized that the people would never rise up, that freed him and his later people to do whatever they wanted, the people would never rise up.
we as a population are in a very bad position. they can create disasters and policies that decimate us. once we get past a certain level though, there is no more reason to play games.
with enough states under communist control, they all can be coordinated… and they are all being maneuvered into position…
thats what MANY ex communists have been tellling us for 60 or so years…
and the more recent ones have been telling us more and more that is not good. kalugin, golytsyn, sejna, mitrokhin, and about 20 to 30 more names.
we havent realized that ALL of our current ‘leader’ politicians are members of the same organization. the leaders of the largest companies, publishing houses, and more are all members of the same organization. all the presidential candidates are members. and many key members are also members of another higher organization.
however no one cares… they swallowed lattimores mcarthy lies (to save himself), and we do not believe. we barely believe that hitler was bad, we only think so because pc makes sure we do.
stalin is a hero.. che is on t-shirts… maos red star in a green feild is popular. the young are so unhopeful that they dont believe that they could do antyhing in the future.
but wait… the women are the ones that will be most surprised. they were the ones that signed on and then created the family conditions for which NONE OF THIS COULD BE POSSIBLE!!! Marx, hitler, etc… ALL said that you start with the women, and the whole communist socialist thing was all about the destrcutiong of the family.
well, the more radical message from the feminists is that women will never be free till theya re totally free of the family… you see, they were sold on the destructive behavior, buy buying into a selfish social good..
the anchor point is the welfare state, and the crowbar of the welfare state is the needy lone mother… everything else has moved to destroy the family to create her. its her children that are abused (made sociopathic), its her children that dont learn, its her children that create more like them. and on and on.. but one would have to look at it neutrally, which we wont do (anymore).
however, all these things are moot… for what these people dont get is that once the change happens, the rules will come. they are already coming, and the idea is to transition without losing all this expensive material and such…
when that comes there will be no stopping it.
that day will come when the soldiers fire into the crowd.
wait for it… that will be your first sign of it.. that there are no more reasons to play games and the soldiers will fire into the crowd.
while everyone is stunned the rest of the changes will happen in hours to a couple of weeks.
they all think, evne the lone wolf anarchists who believe that this will be fun and are calling it down… think that they can get around it. watch it. not be a part of it.
but, if you study history at all.. very few get out.
out of all the gulags and such i dont think there were more than 20 people who escaped out of nearly 100 million..
the anarchists never got to have fun
the homosexuals were worked to death
the elderly were euthanized
the young were conscripted
all passports and travel were rescinded
no one noticed in the nike brouhaha that the women were housed in long bunk houses (like work camps), and they did not have a home, an apartment, and a free life… they worked 6 days a week, 16hrs a day, and they returned to the barracks.
thats the life the feminists are making for us.. and the black national socialists. who havent figured that the communist leader states think that the world should be rid of them…
so no.. the lefties will not be happy.
but they will be lucky.
they have big mouths…
and they didnt read the killing fields…
they didnt read how these people were supressed from acting.
if you grew up in a family that remembered it and it defined the lives of several generations (great grandparents, grandparents, parents, children)…
you would understand where its going.
people in germany did know what was happening.
however this will be different… they worked it out to be so. in the past such removal of people would cull the population an the populations intelligence would grow. the smart ones see the writing on the wall and make a play that keeps them going, the others end up in the meat grinder of history…
however this revolution was different… the feminists, greenies, and others have convinced the smartest to self exterminate.
unlike past exterminations, this one skims the best from the top… and leaves the slaves to do the work.
too bad japans robots and such are not seen as capatalisms answer to things… too bad that obama is a luditte who sees progress as something that hurts the workers…
i had hoped that my life would be the first one in the family who was not damaged in some way by this political beast…
they are going to be so unhappy…
but only for a short while.
oh… if you want to see how much hope we have if it changes.. look at zimbabwe… people running around with machetes, and all kinds of horrors that make the movie saw a dance party…
and yet… nothing is going to be done. oh, lots of posturing, lots of noise… the bees are abuzz… but nothing will actually happen…
darfur… nothing is actually happening… though a whole lot of money is being collected and is going where?
then somalia… mogadishu is hot again in the past few days… thousands are trying to flee into another country…
but nothing will be done… the saddest part is that nothing will be done because that helps the motherland to which they all believe they follow.
well… look around… the US is the only place that MIGHT do something… so if we are the ones with the similar problem, what will happen?
there will be no saviors… just as there is no one forcing their way into zimbabwe, declaring a safe area, and creating a perimeter where food, supplies and more are dropped.
think about it… right now the US could drop in 15,000 troops into a desserted area far from the cities, and i could give safe haven covering a few sqare miles… with air support and dominance, nothing would survive approach. it is zimbabewe.
but nothing will be done
america of the past from the great generation would do something.
today, what they do is help whom?
the US stopped fighting for her way of life, and was too good and naive to protect herself. she held up her highest ideals and they clubbed her to death with it. we forgot the spirit of things and played games with the letters. most of history is authoritatice totalitarian states using men and women for the few.
its only been the last 150 years or so, that they really couldnt have the expansive fun that they have had through millinea… the western culture was so strong that it found a way to banish them temporarily from power, and to effect similar changes, then not to watch its back door.
it forgot that its values mean nothing if it loses.
that it was self preservation first, and conserving itself first, then the values it was trying to protect, could be protected.
today, we will not only loose a nation, a way of life, a broght spot of freedom… but we will lose our genetic lineage and form to the future, for their behaviors, mass removals, and hubris, will insure that their knowing will poison our genomes.
this may ultimately be why seti finds no life.
eventually some smart screws find the keys to ahve it all, and by having it all, they destroy the whole thing. they worked out how to get it, they thought they would figure out how to take care of it once its theirs, but they destroyed it getting it, as it would not end up in their hands whole.
sad
… it might finally motivate the other side to play by the rules…. Wear some kind of identifying mark as a uniform, not shoot civilians, honor our surrenders, not perform fake surrenders themselves, et cetera …
Ah, the dream world of naive. Faith is believing the world should be a certain way and deciding to act and think as if it were true. The Gandhi Syndrome.
Unfortunately such thinking puts all of us in jeopardy, otherwise I would have no objections to it. How much terrorism will it take before they see the enemy clearly? If these monsters were to get hold of WMD and use it there would likely be an unprecedented slaughter in retaliation – death on an unimaginable scale.
(A critical point: there is no individual or cadre whose defeat or surrender will collapse the threat.)
Maybe no “individual or cadre” but do regimes qualify? The terrorists could not do much harm, would almost be a minor threat, except for the fact that various terrorist-sponsoring regimes are allowed to use terrorists in order to wage war by proxy. Damascus has long been ‘Terrorist Central’ and Iran funds terrorism without fear of any significant consequences. Pakistan won’t(or can’t) kill the terrorists in their territory but won’t allow anyone else to go in and do it for them.
Artfldgr–Cliff’s Notes, plz; you make my eyes hurt.
FredHjr said: “We are in this morass because our leadership has not clearly defined our enemy and named it correctly. The vapid “war on terror” creates all sorts of problems, and opens the door for the legal Left to sap our war fighting capabilities.”
You hit the nail on the head. But not only does it open the door you identified, it also opens the door onto that slippery slope many people are worried about. While I disagree with the court’s decision, I’m also not too bummed about it. Terrorists could very easily be citizens of the very country they’re attacking; clearly they are an enemy, but should they be treated as an enemy combatant, or as a criminal citizen?
It’s my concern that the definition of “enemy of the state” may eventually become a little broad, in the interest of shoring up the gray area of how to classify a ‘terrorist’.
Thomsass
“’We have never faced a non-state actor that posed an existential threat to us, and many of the objections to our actions suggest we fall back on protocols and conventions that do make that assumption.’
If you took existential out, then we have. Various pirates and such…”
Well, that’s the key point. The current case has an urgency and an importance that is greater than the previous ones, and we must fight effectively or expect to die. The Marquiss of Queensbury Rules do not apply, and neither should the rules of civilian criminal procedure.
FredHjr
“I am not a lawyer and lack a legal education. Would that book be difficult for someone whose background is in economics and philosophy? Actually, after my M.A. in Philosophy (as a Jesuit) I went on to get an MBA in Finance after I left the Society of Jesus.”
If you managed an MA in Philosophy at a Jesuit university I expect you’re quite well equipped to take on The Shield of Achilles, provided you don’t try to read the book in support or refutation of what you’ve already learned. It has its own message that probably does not hew to the furrows your courses have cut.
The introduction may still be difficult because you must cross a bridge of understanding. You probably have to read it twice because the premises and conclusion are so tightly intertwined and (as Bobbitt asserts) so foreign to our present ways of thinking, yet (I assert) nearly self-evident when seen for themselves.
If you take it on, please find an opportunity to tell us about it.
Lame-R,
I’m with you on that one. There are dangers in defining enemies of the state in too broad a way.
That is why we simply have to, as Rev. David Manning states in one of his anti-Obama diatribes, “Stand up! Bite the bullet! Be a man!” And by that I mean finally naming who the enemy is and the ideology he employs: Islam. Islam is the enemy. Ex-Muslims like Ali Sina, Walid Shoebat, Ibn Warraq, and Ali Hirsy all tell us that Islam is a totalitarian cult, not a true religion. Shoebat used to be an Islamic terrorist in the Palestinian territories. Sina was a brilliantly educated cleric in Iran before the fall of the Shah. They all warn us that we are in grave danger, and that this enemy uses subterfuge and our own openness and weaknesses against us. Including the intellectual torpor of our legal systems.
We have to declare Islam a political ideology, just like Communism is – and take measures to isolate and exclude it from the West.
But both parties do not want to take this step because we have economic arrangements in the Middle East that they are afraid of offending and overturning. Too bad. Ask the now dead and those soon to be killed by this vicious ideology if the money that changes hands is worth their lives.
This enemy is very experienced in the art of war. The founder of this cult, Muhammad, had his sock puppet deity named “Allah” sanction all manner of deception (taqiyya and kitman), terror, brigandage, political assassination, blackmail, and genocide. He had his followers fight as raiders, spreading terror among his enemies. He would use extortion to buy safety, and then later on renege on the deal and kill the ones who paid the jizya anyway. He set a pattern in motion that was hugely successful on a military scale for 1,400 years. This cult is deliberately designed to rope in the worst of humanity and elevating the most depraved of vices. It has set loose upon humanity a scourge that knows how to burrow in and exploit the kafir’s weaknesses.
You cannot win against this enemy unless and until you become familiar with his “sacred” texts, which are the blueprint for everything in his life: the Qur’an and the two most authoritative hadiths, Muslim and Bukhari. Sharia Law embodies what is found in them. Then, you must study how jihad played out on the stage of history, and be wary of apologetics masking as “history.” In recent years Andrew Bostom bucks a despicable revisionist trend that seeks to whitewash this bloody history. Read Bat Ye’or’s books on dhimmitude and how dhimmi peoples were subdued. That will be a splash of cold water to the somnolent.
All of this is to help you be grounded in the first principle of war: Know your enemy.
Then, knowing your enemy, you can formulate a strategy for dealing with him across every aspect of life, covering your vulnerabilities and then exploiting his.
In my first post on this thread I suggested reading some of Lee Harris’ articles on what we are facing and how we are currently not properly psychologically configured to wage a war against this kind of enemy.
I am so concerned about this because I approach it from a theological framework. I am a Roman Catholic Christian who is steeped in our traditions of the Bible, systematic theology, and a rational, scientific outlook. When I look at Islam, having read the Qur’an and many books about Islam, I find it truly something demonic, vicious, and all-enslaving. IT IS THE EXACT OPPOSITE of my apprehension of the Divine Love. I also embrace and appreciate our modern democracy and its traditions of personal liberty. Everything I hold dear about the existence I have been blessed to be born into is threatened by this monster. I am invested in our civilization and invested in the defeat of this enemy of all that I hold dear.
I get no sense from our legal, media, government, and academic elites that they have any idea at all about this enemy and the scimitar poised above our necks. They just do not “get it.” Their sloth will get us killed. In fact, by not acting proactively and intelligently, they also doom many millions of people in the Middle East and greater Islamic world to desolation and extermination when the nukes fly. Because when we retaliate it truly is lights out for them and their world. There are no second chances for them. No chance to repudiate Islam and move into the rational, modern world. It’s the end for them.
Certainly the casualties in the West will be horrific too. But the Islamic world will get the worst of it. It means their extinction.
Of course, Neo, you are right that decisions should not be based solely on whether or not the court thinks the proper moral outcome has been reached. But as I’ve argued elsewhere (see my comment to your previous post on the subject), the Boumedine decision was rightly decided, on purely legal grounds. You may disagree about this, but the legal grounds are quite clear.
Again, to summarize, the majority concluded that, based on prior precedent, the primary issue here is that the prisoners are being held at a location that is not only controlled by the United States, but controlled absolutely and indefinitely. You may disagree with this standard and say it is “overreach” — but I believe it is quite clear.
A second very important difference is the length of detention — in other armed conflicts, combatant prisoners are held without recourse for the duration of the conflict, not indefinitely. In this case, however, it could be argued the war on terror could go on forever.
And the third question is whether or not the review process established by the statute is adequate — and the majority I think clearly rightly decided the answer is no. Prisoners are not given the right to an attorney, only a “representative” — in 96 percent of the cases under the military review board process, no documentary evidence nor witnesses were brought forward, and the statute does not allow the courts to review the detention on its own merits, but only review whether the military commissions followed their own rules. This is not, and I agree with them, equivalent in any remote sense to a habeas process.
For all three reasons the statute should have been ruled unconstitutional, on the legal merits, not simply by fiat of the Supreme Court. You may disagree with these arguments but to suggest the result was simply contrived is to my mind rather silly.
Whups, didn’t see you’ve already replied to my post on this subject. Going to read your reply now.
Okay, I read your reply (in the other topic). Reasonable, as usual. You make two main points — the first that the remedy provided by Congress had not yet been tested, and second was whether or not habeas rights can be afforded enemy combatants.
Let me address the second point first. The key elements of the precedent in question do, of course, also consider the fact that the prisoners were enemy combatants — not citizens. But their point was that this was *combined* with the fact that the prisoners in that case were held outside the United States at all times, for commission of war crimes while engaged in hostilities against the United States, and tried and found guilty by military commissions also entirely outside the United States. Therefore, the mere fact that the prisoners were not citizens or even that they were enemy combatants was not in itself sufficient for the argument in the precedent; it was all of these factors combined. In Boumediene the majority holds that at least one of these factors, that of whether Guantanamo Bay can be considered American territory, is different — because Guantanamo Bay is absolutely and indefinitely under our control.
Keep in mind the Great Writ does not say the right to habeas corpus applies only to citizens. Furthermore the statute in question attempted to remove the right of habeas corpus indefinitely for the affected prisoners — but the Constitution expressly forbids this. Habeas rights can only be suspended temporarily, during domestic insurrection, according to the Constitution. For this reason alone the statute should have been held unconstitutional.
The Court has in many cases in the past argued that habeas can only be taken away if an adequate substitute is provided by Congress — and in the past they have ruled this substitute must be virtually identical to normal habeas. It is perfectly within the right of the Supreme Court to judge whether or not the procedures set out under the statute are equivalent to ordinary habeas — and in particular they make the argument that further delay would only increase the violation of the Constitution, as six years have already passed. The procedures on their face are obviously considerably different from ordinary habeas — the Court has only found on two occasions in its entire history that a substitute process was in fact equivalent to ordinary habeas. (Prisoners not allowed an attorney, documentary evidence and witnesses not provided, evidence not provided to the prisoners except in summarized form, etc. — hardly an adequate substitute it seems to me).
Yes, the decision may be different from what you’d prefer, but it was based on solid legal ground.
mitsu,
I hope that when a freighter with an Iranian nuke detonates off an East Coast coastal city you are firmly rooted in your solid legal ground. Or if a team of shaheeds decides to go a large mall and have a lot of target practice with their automatic weapons and grenades that you are safely sequestered in your solid legal ground. BTW, they will most likely have been doing target practice at a private range within our borders, rehearsing their fire and maneuver techniques.
How then will this strange legal rectitude defend our civilization against these 7th century savages?
There is more to life than just Democrats vs. Republicans. My lawyers and their lawyers. Lawyers fight wars inside their own playgrounds. Truly, are lawyers and political operatives aware of the REAL world?
One of the sometime problems of law enforcement is when to culminate an investigation with arrests. Once arrests are made, the perpetrators will generate no more evidence. Once arrests are made and legal proceedings begun, all of the evidence gathered by the police becomes public, along with the means with which it was gathered.
If the arrests must be made sooner rather than later (say, to prevent a murder) it may be impossible to gather evidence against some suspects.
This is clearly unacceptable in time of war. The need to continue the fight without revealing secrets is paramount. We have seen that civilian attorneys cannot be trusted to represent their clients without revealing critical evidence to them and to others–evidence that can compromise the war.
There is an existential threat, then, in using civilian law to prosecute ‘alleged’ enemy combatants, and also in releasing such people. This is not a criminal threat within the State but the threat of war from without the State, carried on sometimes by infiltration into the society.
This is a thorny question. SCOTUS laid down a judgement; Congress and the President followed that judgement. SCOTUS responded by making it clear that nothing Congress and the President could do would meet both their requirements and the needs of fighting the war.
The proper response is probably impeachment of one or more judges on the grounds of substituting hir own views for the clear meaning of the Constitution. This cannot happen while the Democrats control Congress. It might not be possible anyway. Another proper response would be a new Amendment. Again, this will not be possible while people refuse to believe that there is a threat. (When the majority of the populace votes out any legislator or executive who does not support and enact massive drilling for oil in areas under US control, we will know that this has changed.)
I might add that the Constitution’s Habeas exemption for War and Insurrection does indicate that the Framers did not believe the Great Writ to be more important than the survival of the State. If you wanted to amend the Constitution, it should be sufficient to add armed conflict of warlike nature, whether by states or organizations not government, foreign or domestic, wherever based, so long as probable cause is established that the persons are involved in the conflict. Finding someone on a battlefield or involved in a conference with ‘officers’ of the organization surely meets the requirements of probable cause. So does finding him in possession of weapons, large amounts of cash, etc. Revealing this evidence does not require releasing classified information. The ‘fruit of the poison tree’ may still apply; that should somehow be included in the amendment, or left to the review of a “top-secret” court.
njcommuter,
You seem to be suggesting a very realistic hybridization of the concepts in this debate.
Now why cannot the politicians, legal scholars, and judges think outside the box like this?
My answer (short one): They don’t really take this enemy seriously and are not impressed by the success of 1,400 years of jihad. Or the conservative estimation, by Bill Warner, that over 270 million human beings have been murdered by Islamic jihad.
The only war that matters to these vain and lazy people – and those are strong words, I realize – is the political and legal war they fight against each other. They really do not see the big picture or the broad sweep of history.
My God, how do such creatures get to be where they are? And how have we facilitated this dangerous application of The Peter Principle?
why cannot the politicians, legal scholars, and judges think outside the box like this?
they can..
but it doesnt serve thier purpose of harming while pretending to help… to mix up the concepts of war and common law is to invite what? if the combatants can be seen as something else, then something else can seem like combatants. a blurry line is blurred both ways.
our older leaders knew that the nation came before the constitution that limited the power of the state… the nation must survive for there to be a state to be limited… so while rights are rights all over, during war, such are suspended for combatants of both sides. our soldiers can be ordered to die. thier soldiers too. both sides are not only engaged in a life or death struggle, but are doing so in a condition where both are trying to deny the other their ability to return to a situation where rights are in play. during war, all things sane are suspended.
Yes, the decision may be different from what you’d prefer, but it was based on solid legal ground.
Mitsu — Given that the decision of nine of the most prominent legal minds in American split right down the middle on this question, we can be sure that the arguments of both sides were based on solid legal grounds. I don’t think that’s the issue.
I’m not a lawyer, nor is Neo, and probably not you nor most of us participating in the conversation. So I doubt we’re going to hash out the “right” answer on Boumedine here. I can’t help but notice that just about all people kibitzing on the SC’s decision sort their positions based on where they stand on the Iraq War.
I also can’t help but notice that those who support the Boumedine decision barely mention the Iraq War and the war on terrorism as real wars. The fact that we are really fighting is immaterial to their more abstract constitutional considerations of habeus corpus. Yet Lincoln explicitly revoked habeus corpus for American citizes–forget foreign illegal comatants–because the nation was at war.
“The Constitution is not a suicide pact” is a saying that goes back in spirit to Lincoln’s decision. As Scalia noted, American soldiers aare going to be killed because of this decision. It would be nice if those who support Boumedine acknowledge this fact.
To quote myself in the MaxedOutMama discussion: Not government of the people, by the people, and for the people but government of SCOTUS, by SCOTUS, for the perfection of society under SCOTUS.
The Supreme Court was never meant to be a council of Solons, except in the minds of the Left. It is the most dictatorial branch of our government; it is a council, like a Soviet; it is the most amenable to their thinking.
Of course, we’re at war, a very serious one, at that. I have no doubts of that whatsoever. I don’t happen to believe we’re doing a remotely good job of fighting this war, but that’s another topic. What I do believe is that we’re stronger for following the rule of law, for establishing reasonable limits on executive power, for being a democracy — than we would be otherwise. The great democracies, it should be noted, have also turned out to be the most powerful military forces in the world. This is our strength: we should preserve it. It not only gives us moral legitimacy (a not insubstantial advantage in a terror war which is, after all, a political war) but freedom is a corollary to strength. Checks and balances on power keeps us strong as well, in my view.
It is quite likely there are dangerous terrorists being held at Guantanamo Bay. But this ruling doesn’t say “let’s release them all!” It says: let’s show why we’re detaining these people. There may well be innocent people still held there.
Democracy has a cost: but the alternative costs a hell of a lot more — I would argue if we give up on the rule of law, we give up on our core strength, and head down the road towards becoming a third-rate has-been nation. I am glad that Neo agrees with that, unlike some of the posters above.
grackle Says:
“Ah, the dream world of naive. Faith is believing the world should be a certain way and deciding to act and think as if it were true. The Gandhi Syndrome. ”
Getting the word out we’re shooting enemy combatants summarily who break the rules (battlefield executions)? Is The Gandhi Syndrome. Put down the crack pipe. 😉
Unless their leaders quash it, it may very well motivate some to play by the rules. Especially in large battles that don’t require hiding / they have little to loose by adopting the rules. Right now they have nothing to loose by breaking them.
The problem is that in showing why in the civilian court you must release information that needs to be kept secret to continue the fight. You must show that none of the information gained violated the rights of the “defendant.” And that is what these people are not: defendants.
SCOTUS first said that procedures were necessary to verify that the prisoners were worthy of imprisonment. The Executive and Congress crafted such procedures, expending a great deal of effort (and some posturing) while doing so. SCOTUS has thrown the whole effort out, without ever giving it a chance to work.
It is SCOTUS that has refused a reasonable accomodation with reality.
njcommuter Says:
“Well, that’s the key point. The current case has an urgency and an importance that is greater than the previous ones, and we must fight effectively or expect to die. The Marquiss of Queensbury Rules do not apply, and neither should the rules of civilian criminal procedure.”
Yes, but that’s part of my point too. We do have a body of precedent on how to deal with these types… and in the past we dealt extremely harshly with them. Pirates had no rights and were just executed once caught.. and it was legal…
Arabs and Pushtuns in Wasaristan, just like Chechens, are tribal and do not understand or appreciate such concepts as a State or Law. They are barbarians, and the tribe customs for them always trump any universal rules and laws. For every purposes and intents they are pirates when armed and belligerent, so the whole body of legal principles involved in dealing of civilized nations with pirates applies to them directly. To make it short, give a dog a bad name and hang it.
Thomas Jefferson’s orders in dealing with Barbary Pirates should be taken as precedents in legal interpretation of constitutional law, since they are direct manifestations of Framers original intent.
See
http://www.military.com/opinion/0,15202,85005,00.html
screen comments much?
Re keeping hands clean. That was one motive for my becoming a Conscientious Objector during the Vietnam War.
The genocide in Cambodia changed my mind. One has “clean hands” and stands on the sidelines while others are slaughtered.
Sorry, “clean hands” become bloodstained in such abstention, from my point of view. What is that quote about standing by and doing nothing when evil men are doing their deeds?
The Contras in the 1980s is an example of the dilemmas of ” clean hands.” What those who opposed the Contras did not realize. 1) Sandinistas endorsed USSR invasion of Afghanistan(Central American Crisis Reader). 2) They continued to assist FMLN in El Salvador, even though both Reagan and Carter had informed them there would be consequences. 3) They jailed a Polish national on suspicion of belonging to Solidarity ( book: De Polonia a Nicaragua.) What does that tell you about the FSLN: not exactly liberals in a hurry!
Given the above, Reagan was justified in funding the Contras. If the Sandinistas had NOT assisted the FMLN in El Salvador, Reagan would have left them alone. Should Reagan have stood by?
Various pirates and such…
Indeed. More recently, we have faced non-uniformed spies and saboteurs. Historically, all three where treated the same way: military tribunal, followed by a hanging.
Thomass
We do have a body of precedent on how to deal with these types… and in the past we dealt extremely harshly with them. Pirates had no rights and were just executed once caught.. and it was legal…
If I may quote Mr. Lincoln here, we cannot escape history. Nor, in the absence of changing the variables, can we hope to defy its lessons. The SCOTUS 5 show a tremendous hubris in believing that we cannot be harmed during their tenure as others have been harmed in the past, or that we can win a war without fighting it, or that fighting it does not mean killing or imprisoning those who go to war against us.
The US Army of WWII was a case of changing the variables: it took the offensive against a numerically superior, more experienced enemy while fighting at the end of some of the longest supply lines in history. And it won, so completely and thoroughly that we act today as if it was pre-ordained. It was not. Even with all the variables that Marshall and his hand-picked officers changed (read Perret’s There’s a War to be Won) the outcome was in doubt until the occupation forces were well-established.
SCOTUS has no formula for changing any variables in our favor, only for changing them against us. What outcome should we expect?
its gets interesting in weird ways.
what happens to a soldier who in the heat of battle refuses the orders of commanding officers?
you might just end up seeing such switch sides to get a better trial.
“at the moment my commanding officer ordred me to my death, i refused. at that time i not only changed sides, but also changed my gender. By the rules of american combat, he can no longer shoot me for disobeying orders, but has to take me into jail to have my day in civilian court”
i suspect that in civilian court they will find the person right in refusing orders, and perhaps allow a counter suit for the leaders sexual harrasment of someone below them of another gender.
ack!
oh… and sergey. nice points.
since gender is a choice, and certain genders are not to be in combat, how long before someone figures to report that their gender is now different and that they should be moved back?
[note that the plan is to airlift women and such out of battle as it starts. leaving a crippled and incomplete force to remain]
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Democracy has a cost: but the alternative costs a hell of a lot more – I would argue if we give up on the rule of law, we give up on our core strength, and head down the road towards becoming a third-rate has-been nation. I am glad that Neo agrees with that, unlike some of the posters above.
Mitsu — Thanks for a civil, intelligent response. I posted a similar compliment to you in the previous topic before it was flooded with less temperate posts.
Nonetheless, I don’t follow your logic here–you are proposing straw men. Democracy and the rule of law are not in danger of being discarded. Nor do those of us who disagree with Boumediene believe that the ruling is equivalent to “Let’s release them all!”
I fail to see how we are in danger of losing our rule of law when we take extraordinary measures to combat an extraordinary enemy. It seems that on this thread the burden of proof has been unfairly placed upon those of us who are opposed to the Boumedine decision – that we have to prove that using the military court system is not a threat to our rule of law and our democracy.
I would like to see a reversal of the burden of proof: that our democracy and rule of law is threatened when we take extraordinary measures to deal with an extraordinary enemy.
It seems to me that the other side feels that the President’s Constitutional powers to wage war on this enemy are somehow a threat to them and the country.
This was not a victory for the people of this country. It was a victory for the enemies of rule of law and our civilization. Certainly the enemy knows it and I’m sure they plan on adjusting their tactics and strategy accordingly. The legal class in this country has absolutely no clue as to how cunning the Islamic enemy is, now and throughout its history of jihad conquest. I have tried to stress this throughout this discussion, and it is given short shrift, probably dismissed as the ranting of some hayseed conservative not worth a second thought. We have been reduced to arguing abstractions – and the abstract threat that we will somehow lose our moorings and our democracy will be undermined by the President’s war fighting prerogatives.
It all demonstrates that some people still think that our greatest threat comes from the Bush administration, not the jihad. I believe it is that delusion that will be our undoing.
>You must release information that needs to be kept secret
This has been dealt with before in other trials in which sensitive information must be entered into evidence. The Classified Information Procedures Act outlines elaborate procedures for protecting sensitive and classified information and preventing it from being released into the public domain.
Thanks, huxley, for your sober words. I much prefer debating in a cordial manner, even if the other side disagrees. Just to note: I do not believe all those who think the Boumediene decision was wrongly decided want to abandon the rule of law — Neo in particular, for example, clearly disagrees with the Boumediene decisions but at least she bases her argument on legal grounds. What I was objecting to were some of the posts which suggested that the law be damned, and we should just do whatever the hell we want to our prisoners because it’s war. What I believe is that sure, there’s a potential security cost to affording the Guantanamo prisoners habeas rights — but I believe on a larger level at the very least we ought to base court decisions on the law, not on what we think ought to be the right outcome for political or other reasons. While Neo and I disagree about whether or not this decision was rendered correctly, we agree on that point at least.
neo,
Could I seek a clarification from you about something? Did your kick-off to this thread define the issue for discussion narrowly to the legal aspects of the SCOTUS decision?
I ask this question because the legal elites now subscribe to the concept of “the living Constitution.” They also bring into their deliberations legal concepts from other nations and international bodies. When you do that, it means that you are evaluating a problem from more than just a legal perspective. You are judging whether or not our laws are sufficient for making a case. It most certainly involves evaluating things from a historical perspective.
I studied philosophy and I know that only in the application of the most rigorous scientific methods is bias sifted out of the equation. Judges and lawyers do indeed have biases. They choose a side and then try to find a way to argue their case. In the Boumedine decision, they brought in a decision from English courts in 1759. When you evaluate evidence and argument you bring your lens and sensibilities to the bench. It is an art, not a science. Plus, there is no evidence extant to suggest that the military tribunal system lacks the safeguards and the procedures to weigh the merits of each case.
My point is that it IS perfectly valid to look at this case and evaluate it from a non-technical perspective. And have a perfectly valid point of view. For many Americans like myself, we see the Court and the legal profession in general as putting their very narrow interests as the highest priority, not concerns that we have and have, I think, articulated well.
mitsu, the above was not an attack directed at you. It’s just that it almost seems that your above post has a hint of condescension towards those who disagree with the decision on extra-legal grounds. Well, please understand that those of us who are not lawyers believe that the law is only one part of a process of ethical reasoning. Keep in mind that lawyers bring their own developed ethics and perceptions to the narrow process they engage in. I have a friend who is a lawyer. He’s said to me on several occasions that, “We lawyers are but hired guns.” They fight battles in their own arenas.
But the world – history, civilization, and the clash of cultures – is a far bigger arena than the one they fight in. All we lowly citizens expect from the legal elites is, pardon my vulgarity, is some f***ing respect. Some modesty on their part would go a long way. But, modesty is typically not a virtue found in abundance in that profession.
One final point and then I am done with this topic. mitsu states that there is the potential security cost in the new framework open to enemy combatants. Andrew McCarthy has stated that the rules for disclosure of evidence did indeed compromise ongoing operations back during the trail associated with the 1993 World Trade Center bombing. The disclosure process did enable al Qaeda to find out that they were being observed and listened to. They stopped their avenues of communication afterwards. Those on trail and maybe a lawyer of theirs did get this information out.
Honestly, I do not trust the entire legal profession. Leaks of classified information happen frequently across the venues of our government. I realize that there are people who do value leaks: journalists, foreign agents, and people who believe that the U.S. government cannot ever be trusted and is mainly an evil agent in this world. Well, I think the risks to our people are more than conceded by the Left and the Democratic Party.
I agree with Fred. Putting terrorists through our criminal or civil system is just suicidal.
If we had real leadership in this country ,we would have had a Congressional Declaration of War and a real system for annihilating terrorists.
Vince,
Even though I voted for Bush in the last election, I find that he has been bold up to a point, but beyond which he will not go. His own party won’t and certainly the Democrats show no testicular fortitude.
There is ample evidence from history, their scriptures (Qur’an), traditions (ahadith), and the example of Muhammad (Sira) to make the SOLID case who the enemy is. Hundreds of years ago it was an existential struggle and the peoples of Europe and Asia knew who held the scimitar above their necks.
But, that zakat money doled out very generously and judiciously has bought this enemy breathing room to wage the propaganda aspect of the jihad, part of which involves enervated our societies and their institutions.
Mitsu, as usual, is correct in principle, just not in reality. If and when the jihad alliance is allowed the time and resources to become ready and able, it will rain hell without mercy or court of law, first on Israel, then on us. Londonstan, Paris suburbs, and 9-11, among other daily atrocities, are just the warmup for the black hole that is several hundred million (+) muslims bent on our destruction, counting on time and numbers to prevail; While their left-wing allies have loudly signalled that they are ready and willing to acquiesce in the destruction of Israel, in the naive hope that by that sacrifice to “allah”, they can avoid the deadly confrontation which is now required to preserve our freedom. People need to have more respect for what has been accomplished in Iraq, a little solidarity in the still free world would go a long way… Better dead than muslim!
The argument I am making is the same as Neo’s, that is, there is a balance to be struck between security and liberty. I place the balance point differently from her, but at least we recognize there is a balance to be had. That is to say, the reason I object to those who suggest we ought to give up on the rule of law and just decide the way we think it should come out is that to do so would eliminate the careful restrictions we have on things going too far in one direction or the other.
Obviously one could go for maximal security — i.e., a police state. The former Soviet Union, Nazi Germany, etc. The problem with that is that in the end, such states wither and/or are defeated from the outside. There is such a thing as TOO MUCH security — it gives you security in the short term but not the long term.
And, of course, on the other side, too much liberty can in fact open the doors to chaos, enemies, etc. The point is, however, you want to preserve your liberties because even though it may come with some risk, the benefits ultimately redound in your favor: the net result is a stronger nation. There is a balance point here. We may disagree about exactly where to put it, but it should be grounded in the law because that keeps us from going too far in one direction or the other.
Mitsu, I do agree in principle and reality in the applicability of formal legal protection for American citizens, but not for foreign, especially non-uniformed and essentially stateless, enemy. If there are some unfortunate innocent victims among the residents at Guantanamo, we can only be resigned that at least they are otherwise better treated than as “collateral damage”, including mass murder, which we, in the free world, have suffered at “their” hands. Never say never, there’s too much at stake, the issue can’t be simplistically reduced to a legal all or nothing in the murky world of the struggle against the jihad alliance. If someone had succeeded in the targeted killing of Hitler in 1938, it would have been quite illegal, but profoundly merciful to humanity. You are an idealist, you know exactly what I’m getting at…
I am not an idealist, I am a pragmatist. You and I simply disagree about where the right balance should be struck. You think the cost of denying redress to innocent people is relatively low, compared to the risks of releasing a terrorist erroneously — I believe the costs are high, because it sets a bad precedent. There’s something majestic about a country that is willing to carefully examine whether its prisoners are innocent or guilty, even in times like these, and the mere fact that we uphold that principle, which I believe has a sound legal basis, as I’ve argued above, helps us immensely, I believe, in the political aspect of the war on terror. It makes us look good, in other words, and that will do far more good for us in the war, I believe, than the harm we might risk by allowing prisoners to challenge their detention in court. That’s my opinion: I realize yours differs.
I am at the point of exasperation on this thing, mitsu. The rest of us knuckledragging hayseeds are not advocating a police state, or anything close to it. You just presume that our concerns for the security of our lives, our property, and our civilization do not give the benefit of the doubt to the jihadis. And I mean legitimate jihadis, not some Ahmed who was railroaded by tribesmen who wanted revenge for some stupid reason or they wanted a ransom. Those of us who served in the military learned about the military justice system. It has rules of evidence that safeguard the defendant very well. Honestly. I’m not pulling your leg.
I happen to be more towards neo’s side of the balance and not yours. I understand EXACTLY what the both of you are debating between each other. But, the rest of us who weigh in are not mere background noise. We’re not stupid people. Furthermore, because we are politically more sophisticated than you give us credit for, we understand that for the last eight years there have been actually two wars being waged. There is a war being waged against Islamic jihad (the State Department even forbids the use of jihad in connection with Islam). And there is a fierce internal political war being waged too. We see the SCOTUS decision more in the context of the internal political war being waged along partisan lines. One side believes the President has overstepped his war powers by routing enemy combatants into the military justice system. That same side considers the military courts inferior and susceptible to abuse. It’s all very clear. We get it. The rest of it boils down to the details and technicalities. And that same side says that the President and much of the citizenry greatly overestimate the threat from Islamic jihad. That at most it is a manageable criminal threat. The acts of terrorism we sustain here and abroad are more or less the cost of doing business in the world.
The “clean hands” approach to ethical reasoning is just another way of describing argument by moral equivalence. Arguments by moral equivalence, as one learns in philosophy and logic courses, are really the most unfair, adolescent, and reductionistic of debate tactics.
Our legal system has made a huge mistake in how it classifies this enemy, because its practitioners just are not equipped to make room for a new way of seeing Islamic warriors and their historical context. I have already stated why they seem unable to do this, so it is pointless to repeat myself if I have not been able to be understood at this point.
Look, we understand you’ve won the debate on the merits of legal principle. But, if you and people on your side of the fence continually push the envelope towards ever greater solicitude for this enemy, against good judgment, common sense, and a healthy bias in favor of the rest of civilized humanity, do not be surprised that someday you are shocked by the stunning ingratitude shown to you by these 7th century savages.
I have no problem if an American citizen, who is caught participating in the jihad at home or overseas, is put into the civilian court system. And the reason should be obvious. But, I have a more nuanced view if the captured jihadi is not an American citizen and is captured overseas. Truthfully, I have no pity for those people.
Finally, even though our Constitution expresses aspects of English Law and comes from a part of that tradition, it does not mean that the U.S. Constitution is a universal document. I completely reject the view that non-citizens should be availed of its rights. I think the compromise worked out by the military tribunals gives the jihadis infinitely more justice and fairness than they would ever hope to receive under Sharia Law. And no matter how much we keep lowering the bar, they are never going to accord us fair treatment. First of all they are forbidden to under their concept of justice and law (Sharia). Second, they lack the concept of The Golden Rule. It is alien to Muhammad’s sock puppet deity, “Allah.” In fact, they regard it contemptibly, a sign of their inherent superiority over us.
Ah, but Mitsu, you reveal yourself to be an idealist after all. You may think extending habeas corpus to foreign illegal noncombatant jihadis makes us “look good,” but it only does so to those who are predisposed to agree with our side anyway. Many others find it a ridiculous, stupid, and laughable sign of a weak and cowardly society that is doomed to be destroyed by their stronger one. They feel that the Constitution actually is a suicide pact when taken to such extremes, one they hope to exploit as much as possible.
As FredHjr points out, there is nothing wrong with military justice and its safeguards (including those Congress has recently enacted to cover the Guantanamo prisoners), and it is most appropriate under these circumstances.
neo-neocon Says:
” makes us “look good,” but it only does so to those who are predisposed to agree with our side anyway.”
I’m predisposed to agree with our side and I think it makes us look lame…
Perhaps I missed the point being made somewhere else, but although you’re right about “clean hands” not impressing the terrorists, “clean hands” have a lot to do with peripheral cooperation.
For instance, it’s very difficult for the police to clean up a neighborhood where no one trusts them. These aren’t the criminal element, but the people who see the abuses, that decide whether to tip off the police or not.
Now expand that notion to foreign countries where America is not only an alien element to your local potential terrorist, but also can be accused of not setting an example. Except of hypocrisy of course.
Also, much easier to demonize foreigners, if you’ve ever noticed than the people you know, so you do have to work extra hard.
There are people in Pakistan who are simply being quiet with information they have that could help us tomorrow, but won’t because they hate us, or don’t trust us.
>peripheral cooperation
Precisely my point. Also, it reduces the appeal of the jihadists and terrorists, makes them less popular, and thereby saps them of recruiting strength.
As far as the military courts being fair — I’m not sure you’re aware of this, FredHjr, but the military commissions set up for the Guantanamo prisoners are NOT military courts such as those used to adjudicate UCMJ violations by members of our armed services. They are a completely separate system in which defendants are not given the right to an attorney, do not have direct access to evidence, where so far in the vast majority of cases documentary evidence or witnesses have not been put forth, etc., as I noted above. They’re considerably different from normal military courts.
Also I’m not sure where you get the idea that I’m implying you are a “hayseed”. I am objecting to the idea that the rule of law ought to be ignored because we are at war. I believe the proper course is to argue these issues legally, constitutionally. As does Neo and most other people. To suggest that we ought to ignore the law because we’re at war to me really would be a very grave step indeed — a step that would have massive negative consequences for the future of the country. What holds together and strengthens a democratic republic is respect for the law and the Constitution. There are legal arguments on both sides of this issue, I happen to believe the case was correctly decided. Neo does not, so we disagree. I still believe the best way to argue this is on legal grounds, though of course there are many other issues that legitimately come into play.
All I am saying is that liberty may be risky but it is the free countries which have always turned out to be the strongest. We have won the battle of history, precisely because of our freedoms. We ought to be very careful about constricting them in the name of security, though obviously we may need to constrict them somewhat in a time of war: the question is, however, how far. My view is the Bush Administration went too far in one direction, and this decision pulls it back somewhat.
Again: the question is not whether we ought to “give the jihadis rights.” The question is, are all the people we have in prison at Guantanamo actually jihadis? Do we care? Perfected democrat says no, I say yes. We can and should care, because to care about that is to care about a central principle of our Republic, one which gives us far more strength than it takes away. That’s my view. You’re welcome to disagree.
“You think the cost of denying redress to innocent people is relatively low, compared to the risks of releasing a terrorist erroneously…”
Actually Mitsu, I recognize that the cost is repugnantly high, but pales by comparison to the alternative of time and an enviroment permitting the enemy to acquire more dangerous weapons, as well as becoming insulated and deeply established. When you consider how easily the jihad alliance recruits suicide bombers, imagine how easily, once the precedent is set and it catches on, how they will recruit people to attack a now neutered, toothless justice system which guarantees a fair trial, no abuse, and the maximum penalty becomes limited imprisonment in an environment possibly superior to their existing living arrangement. They’ll be laughing all the way to the bank, er jail. Time and numbers, time and numbers, time and numbers…
From a foreigner’s perspective, there are too many laws, lawyers, courts and litigations in America – so absurdly many, that sometimes I wonder if Russian corruption costs us less that litigation to Americans. It is possible that to pay bribes is more quick and efficient way to settle things that to pay fees to lawyers. And all this ruinously expensive legal system does not save from corruption either, and often contributes to it.
For instance, it’s very difficult for the police to clean up a neighborhood where no one trusts them. These aren’t the criminal element, but the people who see the abuses, that decide whether to tip off the police or not.
This analogy , while helpful in explaining your view, is not helpful in explaining the reality of the situation. Your scenario does not scale up to the size of international relations.
>Now expand that notion to foreign countries where America is not only an alien element to your local potential terrorist, but also can be accused of not setting an example. Except of hypocrisy of course.
What are you saying.. that Potential Terrorist X would never become a terrorist had it not been for America fighting other terrorists?
There are people in Pakistan who are simply being quiet with information they have that could help us tomorrow, but won’t because they hate us, or don’t trust us.
It’s because they can’t trust us. It’s because they know that the people in our system who undermine our efforts (Leftists/disgrunted leaking things to the press) is a danger to whoever cooperates with us.
Because we ARE NOT ruthless and are too ladened by concerns for our enemies… that is why they don’t support us.
One of the results of the issue of classified material in trial is that it is leaked. You don’t think Lynn Stewart was one of a kind, do you?
The other is that some charges have to be dropped. Guy skates.
Don’t think that the supporters of the latest decision aren’t applauding their opportunities for both of these.
logern
Perhaps I missed the point being made somewhere else, but although you’re right about “clean hands” not impressing the terrorists, “clean hands” have a lot to do with peripheral cooperation.
For instance, it’s very difficult for the police to clean up a neighborhood where no one trusts them. These aren’t the criminal element, but the people who see the abuses, that decide whether to tip off the police or not.
The converse of this is that people must also trust that the police can act swiftly and completely enough that the bad guys they turn in will not come back to kill them, and that the friends of the bad guys will not be able to kill them, and that the bad guys will stay out of circulation long enough to ensure that the people who turn them in will not find their lives cut short.
If the United States cannot act decisively in the civil-affairs battlefield, it will lose all cooperation, and all effectiveness. We saw in Iraq that when we acted in a way that would guarantee the safety of people who cooperated, people did cooperate. The ‘surge’–Petraeus’s “clear, hold, build”–was exactly this.
If keeping our hands clean means we never do the dirty job, the dirty job won’t get done. And war is a dirty job that sometimes needs to be done, as Epaminondas, Sherman, and Patton all understood. I name them because Victor Davis Hanson identifies them, in The Soul of Battle, as undefeated commanders of great skill who fired their armies with the hatred of very real tyranny and destroyed that tyranny, to the great benefit of posterity. Posterity means ‘us.’ They were also considered unbalanced and barbaric; Hanson acknowledges the former and refutes the latter. They were also willing to take the fight to the enemy’s society when that society was the root of the evil. Sherman destroyed an economy and cowed a populace; Epaminondas so completely dismantled the Spartan slave society that it never came back.
I cannot see how far we need to go in stopping the brand of barbarianism called Islamic Terrorism, but I know we must not be afraid to use effective power on the individuals who carry it out, who plan it, who train fighters, who finance it and who espouse it. They have chose evil, and as long as we tie our hands and do nothing they will prevail.
In the end, the world-wide war against jihad will amount to no less than a new crusade, like it or not. And to unroot the fifth column, something very close to inquisition is needed. This, of course, is a huge irony of history; but I always suspected that so-called progress is a myth to a great extent, and old patterns will repeat again and again, only in new clothes.
Sergey,
I do not think it will go that far, but if it must, it will be the Left that will have made it necessary and it will very likely be the Left that carries it out.
For instance, it’s very difficult for the police to clean up a neighborhood where no one trusts them. These aren’t the criminal element, but the people who see the abuses, that decide whether to tip off the police or not.
This analogy , while helpful in explaining your view, is not helpful in explaining the reality of the situation. Your scenario does not scale up to the size of international relations.
…It’s because they can’t trust us. It’s because they know that the people in our system who undermine our efforts (Leftists/disgrunted leaking things to the press) is a danger to whoever cooperates with us.
Perhaps …just for example, to give a different perspective, if an American in Beijing witnessed what he suspects is a political protest, given what he knows about the Chinese government (we’ll assume he is not completely ignorant of foreign affairs) does this not give pause to whether he, if asked might assist government officials if they indicated they’d like to know where some people might have fled to?
The American does not help the Chinese government primarily because he considers them unjust. (perhaps he fears them to, but I think this is not the primary reason)
Now put that American in London, and again protesters. What he might see here is a JUST government response versus some rowdy anarchists for example.
I meant to add, …likewise foriegners react similarly to helping America in the war on these extremists. They react appropriately to the “clean hands” government.
Well, yes. They will not support an “ally” that will not protect them.
Protection from bandits, warlords, and “competitors for the claim of government” is one of the foundations of a government’s legitimacy. (See Sun-Tzu, Machiavelli, Hobbs, and Philip Bobbitt.) Bolsheviks and Maoists attack this directly by proving that the government can provide no protection against them, and forcing people to ally themselves with the usurpers. This is government of the cruelest, and it can win when civilization loses its ability to enlist its most virtuous to oppose them. (Does this mean that a government that loses that ability, as Rome did and the USA is perilously close to doing, is no longer fully legitimate?)
Neo,
Just to say a huge Congratulations! on a really excellent job: You’ve outdone yourself, and that ain’t easy; and an even huger Thank You!! for the very same reason.
I wish more people understood that moral excellence can only be achieved in the real world by accepting that trade-offs are one of the givens of life. To quote me (!): Life is an engineering discipline, not an exercise in abstract mathematics.
I ‘ll register one slight quibble. You write, “Another possible real-world consequence [is that] … since these are illegal enemy combatants and not covered by the Geneva Convention, to avoid these matters in the future the military might instead summarily execute such people on the battlefield, in keeping with hoary tradition and, by the way, with the traditional law of war. That would lead to far “dirtier” hands, and far less moral purity.”
That’s not obvious to me. I do not think it is particularly moral to risk sacrificing the lives of those one is sworn to defend–who are in fact the very carriers or vectors of the values we aim to preserve–to the principle of “innocent until proven guilty,” important though that principle is. The principle will cease to exist if those who believe and practice it are dead.
In fact, it seems to me that your argument is (in part) that sometimes one must choose between moral goods. That is part of the genius of this article, one of your very best.
Gratefully,
Julie
“Many others find it (habeas corpus) a ridiculous, stupid, and laughable sign of a weak and cowardly society that is doomed to be destroyed by their stronger one.”
Who, neo? Who are the many others that find it “a ridiculous, stupid, and laughable sign of a weak and cowardly society”? That wouldn’t be you, would it?
neo finds it hard to agree with one’s right to defend themselves. She thinks those that do are weak. She knows. You don’t.
Who, neo? Who are the many others that find it “a ridiculous, stupid, and laughable sign of a weak and cowardly society”?
You dont pay much attention to the world do you ?
Well it’s obvious you don’t. Your sneering condescending attitude betrays how profoundly ignorant you are of what our enemy thinks.
Go back to your college and stay in your little bubble. You know how stupid you look when you come out of your echo chamber and think that your ignorant-but-supreme attitude is impressive to people.
If we are going to answer the troglman we ought not pull the argument down to the knuckle-dragging level. Let’s try this:
If one is to survive in a world filled with cruel and amoral people, one must be prepared to act with lethal and decisive force. The person who can do so is not the person who needs the approval of his fellows before he can kill the burglar in his bedroom, the mugger in the alley, or the rapist in the night, much less the pirate or the slave-taker and his army. The person whom you will trust as a leader will take those actions for himself or his friends without hesitation. (Machiavelli says it much better than I do.)
Legal due process under those circumstances looks feckless because it is feckless. Deliberation may be appropriate outside the heat of battle, but civilian standards of guilt and innocence are not. A process that allows a participant in warlike acts to go free because of a non-substantive procedural error, as the civilian courts do, simply does not weigh the risks properly. It holds them to a standard based on the wrong assumptions. See the lengthy discussion above for details.
Let me add one more consideration to my considerable bag of wind. The SCOTUS 5 order the inferior Courts to craft rules for the handling of these cases, even as they reject the rules laid down by Congress and the Executive. How close does SCOTUS have to come to ordering the Courts to make law before they are themselves unconstitutional in suborning the rightful duties of Congress and the Executive? When does this become a basis for impeachment?
I fear for what a Left-wing Congress might do armed with such a precedent, but it’s not clear how else the balance might be redressed.
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Well, at least when we’re all dead people will say we never broke the rules.
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Thanks!