In ‘The Boston Review’ for January-February, 2009, David Cole has an article in which he seeks to address the problem of preventive detention, which the closing of Guantanamo will only bring to the fore.
He’s always a worthwhile read, but this is a hugely fraught subject.
Once Guantanamo has been closed, what do We do with the folks who can’t be sent back home, either because of dangers on that end, or because the US government thinks that they are still too dangerous to have on the loose?
Human rights advocates simply want them turned loose unless they can be tried in a civilian criminal court and found guilty of whatever charge is brought against them. On the other end of the spectrum, some law professors (including Jack Goldsmith, formerly of the Bushist Imperium, now of Harvard) claim that the “threat of terrorism” is so great that “a sweeping new detention authority” is required and that therefore Congress should grant the President the authority to indefinitely detain any suspected terrorist.
I’m not really happy with the idea of granting sweeping new authority to any entity within the Beltway. The Executive and the Congress have both proven themselves hugely unreliable in just about every area in the past 8 years (just to keep things manageable): military operations, civil rights and liberties, the faithful execution of the laws … not a good track record, not even after the elections of 2006. A whole bunch of folks who are presently engaged in trying to prevent investigation into their recent activities or that of their friends and their relations now want – if you please – “sweeping new detention authority”?
Does Congress even have such authority? It delegated its power over the currency to the Federal Reserve in 1913 and the power to conduct criminal process to the Executive (in the form of military justice) in 1916, and there is weighty probability that it had the authority to do neither; certainly, We have not seen much benefit from the clubby and arcane finagling of the Federal Reserve, and the military system is so clearly ‘unreliable’ for the administration of justice that Cole doesn’t even want to leave his own detention plan up to the JAGs.
Cole proposes a third way, both to deal with the detainees We already have and to establish a policy on future detainees. He wants them detained, but only after careful civilian court review. It’s interesting. But first there’s the problem of figuring out whether individuals can be detained in the current Global War on Terror (or whatever it’s labeled nowadays) at all.
Here’s where it gets very thorny. Proponents of any detention have to establish just what allows anybody to be detained. Unless you simply say that the government and the military can do what they want to do anytime they want to do it ‘just because’ … then you have to explain what it is that justifies depriving people of their liberty.
Almost immediately, folks will say that We have always had the right to detain enemy soldiers or even agents in wartime. Which is true.
But We are not actually in a war. Congress has not declared it; Cole says that “al Qaeda declared war on us”, but it’s not a sovereign nation, has no uniformed military, and so the question arises: Do We – can We? – consider Ourselves at war any time some bunch ‘declares war’ on Us? This was the whole plot of ‘The Mouse That Roared’ some decades ago: a small, impoverished, story-book land decided that the only way to improve its finances was to declare war on the United States, surrender immediately, and apply for foreign aid. The problem? The country was so insignificant that the US refused to consider itself at war and wouldn’t even accept the declaration.
Yes, the UN and NATO both authorized a US military response to 9-11, but that was for Afghanistan, which the virtuosi of the Beltway won and then lost. But the attack on an Iraq that had nothing to do with al-Qaeda at all was not covered by that. The Congressional Authorization To Use Military Force was not a declaration of war (Upon what embassy would it be served? Against what flag and what uniform would the US military conduct operations?). So to talk about what was done with enemy troops in this or that war, how they were detained without trial (as POWs) or – in the case of spies and saboteurs – tried and executed, is not relevant as a justification. It’s queasily similar to the current US military vaudeville of defending its justice system by pointing out that armies have been court-martialling soldiers for centuries, and the Brits did it long before the Revolution. Which shrewdly slides by the fact that while armies have been court-martialling for offenses against the Articles of War for centuries, no armies have ever conducted criminal process as if its court-martial were a ‘real’ court. Not until the Pentagon caught Stalin’s show-trial act and realized that it was the perfect template for their purposes.
Cole slips too easily to the next step: asserting that the only problem with detention of ‘enemy combatants’ is that they were denied fair hearings, “resulting in the detention of many who were not enemy fighters”. He’s right about the fair hearings, but I can’t see how the “enemy fighters” point has been established. They may well be criminals if they’ve come over here,so We should put a couple dozen billion into Interpol and local police (or, say, the price of one month of the war costs in Iraq), but I can’t see how folks shooting ‘over there’ are ‘the enemy’ in the sense that the British, the Mexicans, the Confederates, the Spanish, the Germans, the Japanese, the Italians, the Turks or –hell – even the Russians were at one time or another ‘the enemy’.
In fact, at this point, I think it could be said that almost none of them would have been shooting at US soldiers if US soldiers hadn’t done them the favor of – you should pardon the expression – bringing the mountain to Mohammed; i.e. if US troops weren’t ‘over there’ in the first place.
And how now to distinguish between those who were fighting US troops on the one hand because – say – the troops were hindering them from coming to America and blowing stuff up and, on the other hand, those who simply don’t want foreign troops in their country, or are enraged at the bungling or callously inflicted deaths that have accompanied US operations at every turn … ? Having gone over to somebody’s country, invaded it, and started shooting it up, can We now with any pretense of justice, decency, or even simple rationality claim that anyone who shoots back from his own front yard is a ‘terrorist’?
And if his simple act of shooting at invaders and occupiers in his own land makes him an ‘enemy combatant’ then that’s not a particularly revealing classification. And on top of that, We should look a lot more carefully at the type of ‘military operations’, Congressionally authorized or what-have-you, that create such ‘combatants’.
This is too clever by half, changing terms from ‘terrorist’ to ‘combatant’. He’s fighting against an army invading his country, though he’s not part of any national army. That makes him a ‘combatant’, but not a ‘terrorist’. And since neither he nor his country declared war on Us, but rather Our troops invaded his country, then We have a serious problem in philosophy, in justice, and – for the more literally-minded – a problem in foreign relations: these people, generations of them, now go through their days thinking of Us the way Poles and French and Greek thought about the Germans. They realize that they have not invaded Us, yet We have most surely invaded them.
The fact that Our PR units call it ‘assistance’ or ‘liberation’ or ‘the Greater Southwest Asia Co-Prosperity Sphere’ or whatever … don’t amount to a hill of beans in this world. And putting the heavy weapons aside for a minute to show Afghanis pictures of the Two Towers when they know damned well that it was a bunch of Saudis (Saudis! The very foreign nationals we did not detain after 9-11, and even allowed to fly home forthwith) who did that … do We think these people are idiots? I am going to imagine not a few of them think We are.
We seem to have created a lot of armed ‘terrorists’ – or at least ‘combatants’ - over there by invading countries in order to do whatever it is that We were going to do to armed terrorists that were found there. This is – to use Andrew Bacevich’s fine phrase – a ‘self-licking ice cream cone’. We seem to be in a deadly arm-wrestle with Our own sock puppet.
What came over here for 9-11 was an Ocean’s Eleven, a bunch that got through thanks to the incomprehensible bungling of the FBI and other agencies, while Bush fiddled on his Palatine and went forth to read fairy-tales about goatlings to kiddies.
Of course, if the argument is to be made that the US cannot treat this as a ‘crime’ because the world’s other police agencies aren’t competent enough or don’t want to work on the US concerns, well that’s a problem soooo big that We are in a heap of even bigger trouble than any ‘terrorists’ can cook up.
Cole admits candidly that “there are many reasons to be skeptical of preventive detention … we have not done preventive detention well”. He offers the examples of the Palmer raids, the internment of Nisei and Issei on the West Coast during World War Two, and the detention of foreign nationals here after 9-11 (the Saudis ludicrously and disastrously excepted).
He could add the on-going national experience with ‘sex offenders’, since ‘civil commitment’ has now become a cover for preventive detention of whomever the authorities ‘think’ would do something in the future; nor have the courts largely distinguished themselves in this area. But if that is going badly, and for many of the same reasons as this ‘terrorist’ preventive detention, then there are hardly grounds for presuming (or even hoping) that courts will deal any better with accused ‘terrorists’ – unless one imagines that ‘sex offenders’ are worse than ‘terrorists’ so it can be expected that the ‘terrorist’ will get a fairer shake because they don’t pose so much of a threat to public safety or because ‘terrorism’ isn’t as heinous as sex-offenses. Now that’s a thought-provoking exercise in symbolism and enforcement.
Cole quotes a report by Human Rights First, conducted by two former prosecutors, that “shows that the criminal justice system has proven capable of incapacitating, trying, and convicting terrorists before and after 9-11”. He goes on that “terrorism is a serious crime, but just like other serious crimes, it can and should be addressed through the criminal justice system”. Which makes very good sense as far as I can see. And ignoring that very insight has resulted in military, diplomatic, fiscal, and moral debacle on a scale that dwarfs even Vietnam.
But then he proceeds without further comment to his next paragraph that it’s still necessary to come up with a way of “addressing serious and legitimate security concerns without the overkill of a general system of preventive detention for suspected terrorists”. Again, does this thought presume that everybody over there caught shooting – if even that – at US troops is a ‘terrorist’ who would, absent the troops shooting at him, be on a flight or a slow boat to the East Coast in the morning? Are there tens of thousands of Mohammed Attas over there, who would already have been here if they weren’t pinned down by helicopter gunships and their front door being blown in? Or thousands? Or hundreds? Or dozens?
Just how many Attas is it for which We have deployed and degraded most of the Army and Marine Corps, troops and equipment, body and spirit? And if it isn’t just Attas, but sort of anybody, or at least anybody who can pick up a gun and shoot at foreign troops in his own country … then what the hell have We gone and done? What are We doing here? … as the song went forty years ago.
Thus to answer his own problem he asserts bravely that there must be some sort of preventive detention, “but only for detainees identified as fighters in an ongoing military conflict”. But this is circular. If they are fighting in their own country against US troops simply because they don’t want US troops in their own country, then are they ‘terrorists’? – by which I mean folks who have dedicated themselves with malice aforethought to causing as much physical and material damage to American persons as possible, especially on American soil.
Or, worse: if they never entertained such thoughts, until they saw US troops in their country do X or kill Y … then to call them ‘terrorists’ is to descend into a veritable hell of lethal moral and classificatory complexity, which can kill a soul no matter how much body armor it’s wearing or how well protected a vehicle it is riding in. Do We really want to go down that road? Or go any further down it?
Again, Cole relies on the ‘traditional war’ analogy: why should an Italian soldier, a POW in this country, expect to go home before the war is over? And if he can’t, then why should an “unprivileged belligerent” expect any better treatment? This is verging on sophistry. The Italian soldier is in a traditional war situation as a POW; the “unprivileged belligerent” may well be a person shooting at invaders while in his own country – he was engaged in no ‘war’, he was just defending his land and would stop when the invaders left.
And the Italian knew he would go home when his country surrendered and the hostilities were declared ove; a Leader would eventually surrender and that would be that. But what the frak do you do when there is no Fuhrer, no Duce, no Emperor, no ‘enemy authority’ to declare ‘surrender’? Who then says when it’s over? The ones who – in the present case – invaded in the first place? Who invaded because they intended to stamp out ‘terrorism’, which is as endless a task as stamping out sex or sin? At this rate, We shall be fighting ‘terrorists’ for as long as feminists will be complaining about ‘maleness’, which could be until Gabriel blows the Last Whistle.
And does this “unprivileged belligerent” wait until the Last Trumpet to go home? Will that Last Trumpet be the sign that the ‘war’ is over? Won? There can be no ‘surrender’ so the war cannot end and a war without end is not a ‘war’ in any sense known to Western law and diplomacy. A war without end is known only to Fundamentalists and Second Wave Feminists, now that the Commies have given up on their version of World Revolution. This starts to shade into a grotesque burlesque of law and reason and everything that has distinguished civilization.
So to compare the Italian soldier to the “unprivileged belligerent” is to compare apples and oranges. And to then for all practical purposes condemn the orange to life-imprisonment on the basis of such a faulty comparison … like I said, ‘sophistry’ is only the polite term for this sort of thing.
But Cole had gotten into the Italian-“unprivileged belligerent” thing in the first place as the result of a whole sequence of what-ifs: suppose the government has ‘clear and convincing’ evidence that an individual “was captured while actively engaged in armed conflict on behalf of al-Qaeda”, and suppose that the individual “had boasted that he would return to the struggle if released”, and suppose that “the government is unable to convince a jury – civilian or military – that the individual is guilty beyond a reasonable doubt of a specific crime”. Must then the government let him go?
Hitler, faced with a similar problem in jurisprudential praxis, simply enacted the Nacht und Nebel law, Night and Fog: if you were found innocent by the courts and the Reich still wanted you in jail, then the Gestapo or the SS could arrest you forthwith with no explanations required. Many a defendant, now released, would find a black van (the SUV of the day) at the foot of the courthouse steps, and that would be the last daylight he’d ever see.
But I won’t consider the ‘Hitler’ gambit a trump. Distinguishing between somebody shooting ‘on behalf of’ al-Qaeda and somebody shooting in order to rid his land of foreign invaders … how do you do that? And if he’s shooting just to get Us – the invaders – off his property, then on what legal and moral grounds can he be ‘detained’?
The point about not being able to convince a military jury pretty much invades the precincts of science fiction. Military juries will find what they are told to find – or they will find themselves in a very unhappy place soon thereafter; that’s what makes the military the military.
But if the evidence is ‘clear and convincing’ and yet it doesn’t convince a civilian jury, then just how ‘clear and convincing’ was it? This is a terrorism case, after all, and you don’t have to worry about a whole lot of sympathy for the defendant. So if a civilian jury doesn’t find against him, then that in itself raises a pretty big flag.
And I wouldn’t be worried about the guy who boasted he’d go back to fighting if he ever got out. I’d worry about the guys who had made up their minds to do so but had the skill and wit to hide that from their captors, for whom they never caused any trouble. But then too, some prisoners don’t cause you any trouble just because they aren’t the troublesome sort. You never can be sure.
But the fact that We invaded Iraq, and got Ourselves into this unholy mess of ‘reading minds’ and imagining the future and so forth (why not a Tea-Leaf battalion or an Astrology Squad?) doesn’t then give Us the right to insist that since it’s impossible to do what We thought would be easy, then We have to be given some leeway because it’s all so hard for Us. You start getting into this type of frakfest, and then especially if you are witless and unskilled enough to lose, you are going to wind up taking a lot of verrrry complicated ‘prisoners’. And at that point, barring the success of the Tea Leaves, you either let them go and abide by the rules of law and reason, or you cut loose from the rule of law and reason and just start shooting or locking up everybody you can get your hands or your sights on. That won’t end well.
It has been proposed by one judge that a person could be legally considered an enemy combatant if he were a member of an organization against which Congress has authorized the use of military force: but after what I’ve been seeing for some years now, I don’t feel real confident about Congress being a reliable steward of the authority to make such ‘declarations’.
Of course, reliable stewardship is technically not necessary: whatever Congress declares (no matter how little homework it has done in the matter) then that becomes the law; look at the Patriot Act.
And a “military conflict” could mean the guy in his hometown or province shooting at invading occupiers, who never had a thought about traveling to this country in order to blow up bridges (which are starting to fall down on their own anyway). If We are going to start shooting and detaining folks because they are resisting Our invasion of their own country, then Our Wehrmacht-style helmets are going to be saying wayyyyy much more than We want them to.
It seems to me that if a guy is shooting at US troops because they’re over in his part of the world, then he’s not a terrorist the way 9-11 got Us thinking about terrorists. But the guy who’s shooting at US troops because it saves him the trip he was going to have to make to the East Coast … well, OK, that is a terrorist. But how the frak do you tell the difference?
So Cole’s basically saying that although ‘traditional war’ is not really an accurate analogy, we need this ‘preventive detention’ anyway so we’ll have to come up with some sort of procedures and criteria. It is to his credit that he realizes that the military has demonstrated its inability to do the adjudication chores, and thus he insists on civilian courts determining whether or not an individual is legitimately a candidate for detention.
But this is still a very interesting frosting with no cake. Whether the US government or any government has the authority – or can give itself the authority – to preventively detain ‘combatants’ outside of a declared war and outside of the civilian criminal court system is still a large question.
Whether it is wise for a government to get itself into the situation where it has to rely on ‘tea leaves’ is another question. Domestic US developments in the matters of governmental discernment of the thoughts and predispositions of this or that individual, evinced with disquieting frequency in the trial of certain types of crimes, has now spilled over into the realm of foreign and military policy. And thus We have infected Ourselves with a lethal complication.
Whether it is wise for the US government to have gotten itself into this quandary, when all the other countries of the West that have been hit by terror attacks have precisely not responded with military force and invasive occupations of foreign territory, is a large question.
Whether it is useful for the US government to be making-legal here what still may be a war-crime in another venue (and with war-crimes, the whole world is the venue), is yet another question that should give everybody pause. It may work in domestic politics for Congress to get itself off all the hooks by not-prosecuting any crimes here – but if any of these characters tries to go abroad, he (or she) may wind up in cuffs.
And what if – on the grounds of war crimes or crimes against humanity – some group ‘pulls an Eichmann’ by coming here and spiriting the notorious but un-charged offender away to a venue where he very much will be tried? We approved – and got the rest of the major nations to accept – the Israeli assault on Argentina’s sovereignty by kidnapping Eichmann in 1960 and hauling him back to Israeli courts. Suppose somebody tries to pull that against some American functionary who was instrumental in the Iraq invasion, war, and occupation? If the functionary is ‘vacationing’ in a foreign venue? History ain’t dead yet, sportsfans.
Nor am I encouraged with Cole’s too-convenient confusion in referring at one point to al-Qaeda’s “criminal warfare”. The whole nub of the matter here is exactly whether al-Qaeda’s actions are ‘acts of war’ that should be met with a military response, or ‘criminal acts’ that should be met with a police response.
And a “military conflict” could simply mean that Congress has authorized the military to start shooting, which may have nothing whatsoever to do with ‘terrorism’ and which may thus ‘justify’ the detention of a whole bunch of folks who just don’t like being invaded and occupied – a sentiment which puts them in solid affinity with the residents of all the US states that begin with “I” and certainly those that begin with “U”. So the phrase is far too broad for what started out as an effort to prevent more Mohammed-Atta-&-Co. strike teams from coming over here and wreaking their havoc.
And finally, saying that a detainee is only going to be detained until ‘hostilities’ are over, when you’ve already admitted that such ‘hostilities’ could go on for years and years, and when you’ve acknowledged that there is no clear way to know when they are ‘over’, whenever that may be … is for all practical purposes to describe a detention that is sempiternal and certainly will be a life-sentence for all but a young detainee. This too is too broad and vague a definition, and will provide, as do the civil-commitment laws as they are now being slyly and deceitfully employed against sex-offenders, merely a back-door route to life-imprisonment for “inconvenient” individuals.
And to anybody tempted to say So What, let it be remembered that the fate of these foreigners will be recalled by their countrymen and We are no longer in a position as a member of the community of nations – no longer the Unitary Hegemon – such that We can cockily ignore or neglect “a decent respect for the opinion of mankind”.
Those days are gone, baby, gone.