It is extraordinarily weird to me that the Democratic Party continues to criticize things like the Patriot Act or the treatment of detainees in Guantanamo Bay. There is a very limited group of people, mostly elites and lawyers, concerned with whether al Qaeda detainees found on battlefields in Afghanistan and Pakistan are being given full due process. Here, as in the realm of criminal law, process must be balanced against security concerns. And during wartime, in contrast to ordinary criminal matters, the stakes of letting the guilty go free out of concern for the innocent are much higher than they would otherwise be.
This is not a debate about torture, though this is often the strawman erected by Bush’s critics. While a few high profile detainees including Khalid Sheik Mohammad have apparently been subject to rough interrogations that may even be defined as torture, the Geneva protections and the protections of habeas corpus are much broader than merely outlawing torture. For starters, Geneva would essentially grind any intelligence activity to a halt. Under Geneva, uniformed combatants only have to give “name, rank, and serial number.” They may maintain their chain of command in the prison setting and have a right to be repatriated at the end of the conflict.
Bush’s critics rightfully note that our intelligence activity in the 90s and up to the 9/11 attacks was woefully inadequate in gaining intelligence against al Qaeda. Applying full Geneva protection to al Qaeda detainees would allow them to communicate freely with family members and others and would prevent American intelligence officials from gaining useful intelligence through ordinary interrogations–indeed, interrogations much more solicitous of the rights of defendants than anything in the various detainees’ home countries.
Further, with respect to habeas, the trend is very much against extended judicial review of detention. In the ordinary world of criminal law for American defendants, the Antiterrorism and Effective Death Penalty Act of 1996 (signed by Bill Clinton) restricted the rights of defendants to pursue habeas review of their sentences. It is understandable that Democrats do not like Bush, his use of discretion, or the prospect of giving him greater authority under the auspices of protecting executive privileges. Yet these privileges cut both ways. They would also allow a Democratic president to use his authority to prosecute a different kind of war against terror less focused on quixotic ventures like democratizing Iraq, but more focused on “snatch and grab” raids against terrorist camps and suspects ensconced in desert camps or hotels in places like Pakistan, the Philippines, or elsewhere. If the Bush way is wrong because it focuses too heavily on conventional military operations, then it is all the more important that the Democratic Party proposes a viable alternative. If they embrace further restrictions on detention and intelligence gathering while also rejecting the utopian nation-building in Iraq, there is little left.
What is not a realistic or salable alternative is the policy of wishful thinking, in which the deus ex machina of negotiations, idealistic behavior, and setting an example compels potential terrorists to avoid terrorism and behave better out of some sense of shame and peer pressure. Ironically, this view borrows from the first half of the neoconservative program that disagnoses the cause of terrorism as deflected anger against authoritarian regimes which the US supports–anger that would dissipate if the various groups could create political parties and express themselves through the political process. This viewpoint suffers from a failure to confront the details of a particular view of Islam that justifies conflict not only against authoritarian regimes like Pakistan’s but also supports violence against secular regimes for failing to adopt the total legal and social system promulgated in Islam’s Sharia law. Whether this is authentically Islamic or not is almost irrelevant; it is not going away, and it finds substantial support among numerous Muslims and Muslim scholars not least because it has antecedents in Islamic history and various verses of the Koran.
As for allies, European nations underneath the radar of al Qaeda have every incentive to keep a low profile rather than extending themselves on the US’s behalf. We are the superpower here; an al Qaeda spectacular attack or WMD (if they somehow obtain one) is going off in New York or DC not Copenhagen.
The Democratic Party, and in particular the inexperienced wunderkind Obama, have yet to articulate a view of foreign policy that is consistent with its criticisms of Bush, grounded in historical reality, and that convinces justifiably anxious Americans that its adoption won’t lead to bigger and more spectacular attacks that will kill great numbers of people and also serve to weaken the American influence in the Middle East.
15 May 2007 at 12:55 pm
Your commentary assumes that we are actually holding Al Qaeda members at Guantanamo. There is plenty of evidence that many of those people are unfortunates scooped up to collect a reward, not terrorists. Habeus Corpus exists to prevent the government from keeping such people locked up indefinitely. Throw in the tortures and you’ve got the makings of a real scandal.
15 May 2007 at 2:58 pm
We’ve also released lots of people from there. Habeas exists for that purpose for Americans and lawful visitors to our country. It has no application outside our borders any more than a soldier needs probable cause to take out a suspicious silhouette at 1000m. You wouldn’t want that sort of thing prosecuted and subject to court order and lawsuits now, would you?
This is the most bleeding heart nonsense I’ve read in a while.
16 May 2007 at 1:39 pm
Fine, Mr. Tough Guy. If we are dealing with soldiers then honor the Geneva Convention regarding prisoners of war. Let the Red Cross monitor conditions at Guantanamo and stop the abuse. Otherwise we’re just a bunch of sadistic thugs.
17 May 2007 at 9:32 am
Honestly, it’s a war. The job is to kill or capture the enemy. Sometimes the enemy gets intermingled with civilians. That’s too bad. Lots of innocents died in Dresden and Hiroshima too. It’s still better to win a war and leave the job of risk management to the Commander in Chief.
And why should the Red Cross or anyone else get involved in this sort of thing? These are not soldiers. These are are unlawful combatants entitled to almost nothing under international law. The Red Cross does not get to visit our state and federal prisons, which are many times more cruel and brutal than GITMO. Why should they get involved in this sort of thing. Obviously if an ally like the UK or Australia wants to know how their AQ citizen is doing we should let them know through ordinary diplomatic channels. But this solicitude of the rights of these terrorist dirt bags is for the birds.
In an ideal world, a great number of these men would have been shot on sight upon capture for fighting out of uniform. That’s a highly traditional rule of war. What do you think about that?
20 May 2007 at 2:29 pm
I still don’t agree with your assertion that all these prisoners are just terrorist dirtbags.Many of them were swept up to obtain rewards. Some of those have been released. We will never know the true situation without independent inquiry. In general, I don’t have a problem with summary executions for irregular combatants. However, if we persist in attacking and occupying countries with hostile populations (e.g., Irag and Afghanistan), we will be faced with continual irregular attacks. Executing these irregulars will not solve the basic problem: we are not wanted in these countries and will be attacked as long as we stay (see the French experience in Algeria).
22 May 2007 at 3:25 pm
You say, “We will never know the true situation without independent inquiry.” I say, we will never know the true situation with an independent inquiry. Independent courts in the US with a panoply of procedural protections make mistakes, for example, in both directions. OJ got freed. Lots of innocents have been freed recently with DNA evidence. So in these situations the real question is how many layers of procedure do you want? I want relatively few. I think the administration and the military have no more use for innocents locked up than you or I do, not least because it costs them money and takes up space. But in doubt, and there is likely much doubt, I’d prefer these folks stay put. The stakes are relatively high, wouldn’t you say?
30 May 2007 at 5:40 pm
Lincoln and Johnson were right to suspend habeas corpus in the 1860s and did so regularly. the good side won and everythign went back to normal pretty quickly, maybe Reconstruction would ahv worked had they not gone soft, in fact. Bush sinply does not grant it to those who violate the laws of war in almost every concevable way, but would still seek it’s preotections.