Matt Yglesias makes the arguments that if we call and treat the actions of terrorists as war that we validate their attitudes as warriors instead of criminals and help their morale
yglesias.thinkprogress.org
Responses -
...it seems like there are a lot of problems the civilian model just isn't set up to handle. Was KSM Mirandized? Did the people who captured him have a warrant for any evidence they secured at the time? How do we subpoena witnesses from other countries? Were any wiretaps obtained in accordance with the US rules of evidence? Do we grant him the right to confront his accuser if doing so would compromise other US operations, or intelligence methods? His right to a speedy trial has already been badly compromised--do we let him go? What's the statute of limitations on being a terrorist kingpin?
meganmcardle.theatlantic.com
ajwpip November 16, 2009 2:51 PM
One problem with the law enforcement approach you left out is that it is almost totally reactive. We cannot investigate, let alone imprison or kill a criminal for holding radical beliefs. Law enforcement only works with specific deterrence after a crime has been committed - and often with these jihadis they aren't even alive to put in jail. General deterrence won't work either given their beliefs. It is behavior that cannot be ameliorated in terms of general and specific deterrence and therefor is not amenable to law enforcement as a solution. Not without destroying a lot of civil rights we want in our criminal justice system. Looking at it through a war paradigm allows us to keep our criminal justice system rights intact. We are either going to fail at preventing terrorists acts a lot more or screw up our justice system.
The other thing about this that strikes me as wrong is that who really believes that OBL etc. looks at KSM's trial and says, "Wow - I am not really a Soldier of God - I am just a punk criminal." They just see it as evidence of the weakness and decadence of the West. We are the weak horse. The paper tiger. We can be moved from war, to crime to finally acceptance. I think this is similar to when anti-War types try to claim that leaving Iraq won’t be seen as a defeat because they put some other label on it. No one but them (and not even them if they weren’t pushing a P.R. move) actually would see it that way. No one will really look at the KSM trial as some sort of diminishment of AQ’s status. It will be seen just as a diminishment of our appetite to confront the issue or stomach for the hard choices one has to make. The only people who may be swayed by this to our benefit in a realpolitik way is the European left and I am not going to hold my breath that delegitimizing the War on Terror by recasting it as a criminal matter will lead to greater help or cooperation. Anyone here think this will lead to more NATO help in Afghanistan? Greater intelligence sharing?
Finally, why are only some of these guys being put into civilian courts? If military tribunals are show trials then they all should have civilian trials according to the moral logic of the Obama administration. These seem like Potemkin trials or show trials to prove our moral bonafides – but by only doing some of them it actually seems to do the opposite to me. It delegitimizes military courts and therefore makes all the other people we are holding seem like political prisoners of an unjust regime.
meganmcardle.theatlantic.com
ajwpip November 16, 2009 2:59 PM
I am also a little aghast at looking for the silver lining in thinking of mass murder as merely criminal. There is something stomach churning about trying to make mass murder more normative. Yglesias really lives in opposite land from me. He seems to think that the war paradigm makes their behavior more acceptable. That seems Orwellianly wrong to me. I think it may be becuase on some level he sees all wars as wrong - therefore their unjust war is no worse than our just war in defense. If our war is acceptable then theirs must be too. His belief is foolsih and immoral.
Reply
DB Cooper (Replying to: ajwpip) November 16, 2009 3:14 PM
Yglesias is saying that if we declare War, then we are, by definition, making turning the bombers into Warriors. Why give them that power?
Reply
ajwpip (Replying to: DB Cooper) November 16, 2009 5:20 PM
We are not giving them that power. We are recognizing reality. They took that power through 3000 corpses and a smoking hole where the World Trade Towers once stood. It is interesting that those who prefer a criminal justice/legal framework think that applying new labels can change reality to a much larger degree than I think is either possible or wise. Throughout the '90s we refused to acknowledge that these folks were at war with us despite repeated murderous attacks - it did not make them stop. Do you think that 9/11 would have been more or less likely if we had declared War (with actions in line with that declaration) after the Cole or Embassy attacks? Why do we think people willing to commit suicide to kill us are that amenable to what labels we use?
meganmcardle.theatlantic.com
Holdfast (Replying to: Holdfast) November 16, 2009 9:10 PM
Replying to Jon:
Reasons why McVeigh and KSM are different and require different responses:
-Although there were others that supported McVeigh, most of them were more talkers than doers, and almost all were horrified by the death toll of his attack, especially the daycare. Once he and Nichols were arrested, his particular group no longer posed a threat. KSM's followers / trainees think that 9/11 was a nice first step, and will have to suffice until they can acquire nukes.
-McVeigh was an American citizen - that still means something.
-McVeigh was arrested by domestic law enforcement, and was given constitutional protections from the start. KSM's apprehension took place in the "wild east" of Pakistan, was a joint effort by the CIA and the notoriously vicious Pakistani security services.
meganmcardle.theatlantic.com
ajwpip (Replying to: Megan McArdle) November 16, 2009 5:30 PM
KSM hardly fits this paradigm. The kind of horror we feel at Virginia Tech is adequately handled on a governmental level by the criminal justice system. I am not concerned that the moral outrage or ability to respond to other possible events like Verginia tech is diminished by it being handled by the courts. I cannot see how this isn't a likely danger in the case of KSM et al.
The KSM trial is a whole other ball of wax. We are dealing with representatives of a well funded strain of one of the world's great religions which has had some level of conflict with the west for centuries. Its adherents are spread across the globe where our criminal justice system has no standing. They have sympathizers running different nation states. I don't think our criminal justice system is able to handle this effectively. To the extent the criminal justice system ever has tried to handle something similiar it has been militarized and done so poorly. Are you a big fan of the War on Drugs?
One of the problems with looking at this through a criminal framework is that part of the motivation to do so is an attempt to ignore the larger conflict. It seems like an attempt to wish a problem away by changing its name. Good luck with that. As I said previously, I think that this will either lead to a combination of a less effective national security and a warping of our criminal justice system. Neither of which are at issue with the Virgina Tech shooting.
meganmcardle.theatlantic.com
Tim Fowler (Replying to: Nelson) November 19, 2009 11:51 AM
But not releasing him isn't an attack against, a problem for, or a violation of, our system of justice. He is an enemy combatant who can legitimately be held for the duration, just as we held German prisoners until the end of WWII. He is also a criminal, and can be tried for his crimes. Trying a solider in war just for fighting you is a violation of his rights under the Geneva convention (if there is any doubt that the person in question is a soldier, spy, or other agent for the enemy you can have a tribunal to determine that but you the tribunal isn't trying him for crimes), but KSM isn't doesn't warrant POW status (he doesn't meet the requirements under international conventions) and even if he was properly a POW his methods (the methods he ordered, as he didn't conduct the ops himself), are war crimes and both illegal combatants and POW's can be tried for war crimes.
If the captured combatant is tried and convicted for war crimes then he's held to the end of his sentence and to the end of the war, whichever comes later (assuming the sentence isn't death, then he's just held to his execution). If he's found innocent, then he's just held for the duration.
meganmcardle.theatlantic.com
Tim Fowler (Replying to: wiredog) November 19, 2009 11:55 AM
No you don't. You only have to treat them as POW's if they fall under the terms below -
----
Geneva Convention relative to the Treatment of Prisoners of War
...
Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
5. Members of crews [of civil ships and aircraft], who do not benefit by more favorable treatment under any other provisions of international law.
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
1. Persons belonging, or having belonged, to the armed forces of the occupied country...
www1.umn.edu
meganmcardle.theatlantic.com
blighter (Replying to: Jon) November 16, 2009 11:57 PM
First, just as a general historical question, in all of those many years of anglo-saxon, roman & christian history, can you name me an example in which these rights which are, I agree, for the most part, both a sign and source of strength have been extended to non-citizens whose only connection with the polity recognizing those rights was a deep desire to destroy it demonstrated by actually blowing part of it up? Or were all those countries secret totalitarian stalinists because they felt that defending themselves against foreign enemies was more important than bending over backwards to extend to every enemy the deepest rights they had secured for themselves?
Quite aside from that, in the case of KSM we have very clearly at the very least violated some of the more recent innovations in criminal rights. There is no good chain of evidence. He almost certainly was not mirandized. We might be able to fill him in on all of our intelligence but it probably would be about as advisable as when we did the same for the World Trade Center bombers and the information was in Al Queda's hands within days, letting them know precisely what parts of their organization were compromised.
So to your mind we must, by our signs of strength and in keeping with our ancient rights, release this man. And you feel that in the middle east this will be viewed as a sign of how incredibly strong the West is? Look at them, they get attacked and let the attackers go free because they are so beholden to their strong ancient rights?
You don't think that just maybe an immam or two will make the argument that this is all part of God's plan, that he has weakened the great satan to the point where it won't fight back even to the boldest of attacks? That this indicates the time of victory is at hand and all manner of attacks must be made? Really?
And, of course, in all future wars we must be sure to mirandize all potential prisoners, maintain elaborate and effective chains of evidence for all potential evidence, force soldiers to come home to appear as witnesses at the beck of our enemies, share our intelligence with those same enemies, and release those enemies for whom any of these actions has not been fully complied with. We must wage war this way or we are Stalinists, yes?
meganmcardle.theatlantic.com
McNamara November 16, 2009 3:54 PM
So, Afghanistan is a war, when we're fighting the Taliban that's a war, but if we capture any al Qaeda in the same neighborhood, that's law enforcement?
What about blowing up these guys with drones, as we've been doing? If you call that "law enforcement", it's extra-judicial execution, and it's a war crime in itself.
"Blow the bastard up" is not an option that police have.
So if we discover that, say, bin Laden is hiding out in a particular house in a village in Waziristan, we can't just blow him up, because that would be murder, since he's just a criminal now. Instead, we have to try to arrest him, right? Then we can shoot him if he shoots first. So we just send in two beat cops in a Crown Vic. Easy! When they turn up dead, we try again with special forces, except we tell them they can't shoot anybody unless they read him his rights first. Presumably he'll sit still and listen intently, and go along with the assumption that Americans have some business running around Waziristan enforcing our own laws there.
So yeah, it's regular old law enforcement, just like on Adam-12, except for the Blackhawks, the automatic weapons, the close air support, the body count (including civilians), and the jurisdiction thing.
Did Yglesias give an instant's thought to what this actually implies in terms of reality? Would he care if he had? Or is he solely concerned with justifying whatever random coin-flip the administration came up with about trying KSM? That's a rhetorical question.
But yeah, I mean, reality's a special case, right? Yglesias is an idea guy. More of a strategist, you might say. It's up to somebody else to get his hands dirty making it work.
meganmcardle.theatlantic.com
MarkG November 16, 2009 4:00 PM
Any post that starts out with the words "Matt Yglesias makes a good point" is sure to be one I disagree with. And this one doesn't disappoint.
How is a military attack on civilians not an act of war? Especially with the "warrish" intent?
As someone remarked above, there are long-standing international agreements that describe what acts of warfare are permissible, such as admiralty law and the Haag Conventions, the latter of which underlies the concept of "unlawful combatants." Those are the folks who lack military insignia and could be shot on sight pretty much. Talk about your effective prevention and deterrence.
If we treat international terrorism as a criminal matter, won't we have to become the de facto "world police"? You know, sending detectives around the globe to look for evidence, canvass the neighborhood for witnesses, make arrests, etc? Oh, and after a mass-casualty site has become the "scene of the crime," i.e. after thousands have been killed along with the suicide attackers.
meganmcardle.theatlantic.com
Brock C. November 16, 2009 4:00 PM
It's wrong to say that we must choose between Crime and War models. There is a third choice; a better fit. It is not a new legal theory, but has existed since before the days of the Roman Republic at least, and probably before.
Terrorists are hostis humani generis - enemies of all mankind.
Another type of hostis humani generis is pirates. I will offer a quote from Wikipedia, and I think the application to terrorism becomes apparent:
Since piracy anywhere is a peril to every mariner and ship everywhere, it is held to be the universal right and the universal duty of all nations, regardless of whether their ships have been beset by the particular pirate captured, to capture, try by a regularly constituted court-martial or admiralty court (in extreme circumstances, by means of a drumhead court-martial convened by the officers of the capturing ship), and, if found guilty, to execute the pirate via means of hanging from the yard-arm of the capturing ship, an authoritative Custom of the Sea[1].
The Admiralty Courts are a good building block for how to deal with terrorists. They have millenia of experience of dealing with activities that have occurred outside any jurisdiction, poor evidence gathering by US standards, etc. Our civilian Courts really aren't set up for this sort of thing.
meganmcardle.theatlantic.com |
