Free Markets, Free People

National Security


CIA Morale May Be Low, But The Political Distraction Is Perfect

The Washington Post reports:

Morale has sagged at the CIA following the release of additional portions of an inspector general’s review of the agency’s interrogation program and the announcement that the Justice Department would investigate possible abuses by interrogators, according to former intelligence officials, especially those associated with the program.

Wow, I can’t imagine why morale has sagged. Issues that were previously dealt with by Congress and the DOJ are now back under a microscope and somehow the agency is experiencing low morale? Who’d a thunk?

Look, I think it is pretty well known by those that read this blog what our feelings are about torture. We don’t condone it. Period.

However, as I understood it, that issue had pretty much been settled, new guidelines issued and, as a policy, apparently followed (there may be some individual incidences where that isn’t true, but policy was settled). Point made, lesson learned, new policy in place. Move ahead.

We also watched President Barack Obama assure the agency that he wasn’t interested in looking back, implying he too thought this was all settled business, but instead looking to the future – and he further assured them of his backing.

And now this. I frankly don’t understand necessity of this at all – especially when we’re engaged in two wars in which this agency’s best is necessary.

But I do understand the timing. This is a complete waste of taxpayers money, but it is a political distraction and diversion of the first level when such a distractions and diversions from the health care debacle are badly needed. The CIA is always a favorite target of the left. And it handily resurrects the liberal left’s favorite bete noir – Darth Cheney – just when a bad guy is needed. What better to take the heat off the Dems than a witch hunt involving the CIA and Dick Cheney?

Nothing is new in politics – especially new lows. This, as far as I’m concerned, ranks right there with the lowest.

The Department of Justice? New Black Panther voter intimidation case with video of the crime? Dropped. Pay-to-play corruption case against Democrat Bill Richardson? Dropped. 5 year old case involving the CIA previously settled by Congress and DoJ? Oh, let’s do that. Hard to fathom a more obviously cynically political move than that from a department supposedly dedicated to the enforcement of justice.

This too has the potential to backfire, big time.

~McQ


The Left Turns Against Afghan War

This, at least in my mind, has never been a matter of “if”, but instead a matter of “when”. According to the Washington Post, the “when”, has occurred and according to their poll the majority of Americans are now against the war in Afghanistan.

Popularly known, even by Barack Obama, as the “good war” or the “necessary war”, the Washington Post is now saying popular sentiment has turned against it:

A majority of Americans now see the war in Afghanistan as not worth fighting, and just a quarter say more U.S. troops should be sent to the country, according to a new Washington Post-ABC News poll.

[...]

Among all adults, 51 percent now say the war is not worth fighting, up six percentage points since last month and 10 since March. Less than half, 47 percent, say the war is worth its costs. Those strongly opposed (41 percent) outweigh strong proponents (31 percent).

This change of perception has been driven by the left, who previously claimed that Afghanistan was indeed the only proper war to be fighting:

Although 60 percent of Americans approve of how Obama has handled the situation in Afghanistan, his ratings among liberals have slipped, and majorities of liberals and Democrats alike now, for the first time, solidly oppose the war and are calling for a reduction in troop levels.

Overall, seven in 10 Democrats say the war has not been worth its costs, and fewer than one in five support an increase in troop levels.

Among the right, the war there is still seen as worth fighting and winning:

Republicans (70 percent say it is worth fighting) and conservatives (58 percent) remain the war’s strongest backers, and the issue provides a rare point of GOP support for Obama’s policies. A narrow majority of conservatives approve of the president’s handling of the war (52 percent), as do more than four in 10 Republicans (43 percent).

Interestingly, as the article states, this is a “rare point of GOP support for Obama’s policies”. And it pits both Obama and the GOP against the left and, I would guess, a Congress which will eventually reflect the constituency reflected in the numbers above. There’s a reason for that.

Congress is on a “dollar hunt” right now to pay for their favorite domestic agenda items. Afghanistan (and Iraq) are places where some dollars can be stolen. Popular support and money should be more than enough impetus to begin the “cut and run” mantra in earnest.

Apparently for the left, since it is no longer a blunt rhetorical instrument with which to beat George Bush over the head, Afghanistan is no longer the “good and necessary war”.

~McQ


Iran Ready To Build Nuclear Bomb?

That’s what the UK Times is reporting:

Iran has perfected the technology to create and detonate a nuclear warhead and is merely awaiting the word from its Supreme Leader, Ayatollah Ali Khamenei, to produce its first bomb, Western intelligence sources have told The Times.

The sources said that Iran completed a research programme to create weaponised uranium in the summer of 2003 and that it could feasibly make a bomb within a year of an order from its Supreme Leader.

Of course, what we don’t know about Iran’s capability could fill a book. We’ve seen it variously reported that they a year away to ten years away – a good indicator that for the most part intelligence agencies haven’t a clue in reality.

However, as we know, nuclear bombs are old technology. The genie has been out of the bottle way too long to believe that Iran can’t build a bomb if it dedicates the time and resources to do so. And it certainly seems to have done both.

So now what?

That’s the salient question now. Let’s assume Iran has a bomb by this time next year – then what?

Well here’s the apparent game plan:

If Iran’s leader does decide to build a bomb, he will have two choices, intelligence sources said. One would be to take the high-risk approach of kicking out the international inspectors and making a sprint to complete Iran’s first bomb, as the country weathered international sanctions or possible air strikes in the ensuing crisis. The other would be to covertly develop the materials needed for an arsenal in secret desert facilities.

Last week, during a series of high-level US visits to Israel, officials outlined Washington’s plans to step up sanctions on Iran, should Tehran fail to agree on talks. Robert Gates, the Defence Secretary, and General James Jones, the National Security Adviser, said that Iran had until the end of next month, when the UN General Assembly is to meet, to make a positive move towards engagement.

If Tehran fails to respond, Washington aims to build a tough international coalition to impose harsh sanctions focusing on petroleum products — an area where Iran is particularly vulnerable because it sends almost all of its crude abroad for refinement.

The feeling, of course, is if these sorts of sanctions can be imposed, it will hurt the regime even further by adding more unrest among a population already not happy with the election outcome. And, per the Times, hit directly at the Revolutionary Guards Council, which is the main exporter of terrorism through its surrogates in various parts of the world.

Of course what isn’t mentioned by the Times is the one big fly in the ointment of getting this done – China. No China, no sanctions. And China has developed a pretty close relationship with Iran based on petroleum trade. In 2004 it signed two huge oil and gas deals with Iran. Presently 45% of China’s crude imports come from the Middle East and that’s expected to rise to 70% by 2015. In 2008, China finalized a $70 billion deal to develop Iran’s Yadavaran oil field in exchange for the supply of liquefied natural gas. And much, much more.

So China is not going to be keen to cripple a nation which it has invested so much time and money in developing a relationship with – especially if it wants to maintain its own economy (and keep its own internal unrest to a simmer) during recessionary times.

Bottom line? My guess is a lot of tough talk and fist shaking at Iran, but in the end, nothing much happens and Iran ends up with its nuke. The play will be made in the UN where China has a seat on the Security Council and I’d almost bet the house that nothing comes out of that organization with any teeth whatsoever or China won’t vote for it.

Bottom bottom line – Israel, who we seem bound and determined to have worse relations with, is probably going to have to find a way to destroy the capability on their own. Militarily they’ve been quietly developing the strike capability for some time. And Saudi Arabia, which is very worried about an Iranian nuke and what it would do to the balance of power in the region, has given Israel a subtle nod that it would turn its back should the Israelis fly over their territory to strike Iran – unprecedented in the history of the region and an indication of the depth of fear the Saudis harbor.

But reliance on the UN and “sanctions”? I just don’t see that happening.

~McQ


CIA, Cheney and Al Qaeda

Unlike the left, I’m having difficulty getting too excited about a CIA program that never got out of the planning stage. The NYT carries the story today. Essentially the gist is that the CIA, under the supervision of Darth Cheney, planned (for 8 years apparently) to deploy assassination teams to capture or kill al Qaeda operatives where ever they were to be found.

Certainly, had they actually done that and say “captured or killed” someone in a place other than Iraq or Afghanistan, I think there would certainly be legal questions (and problems) involved (assuming we did so without the knowledge and permission of the country in which the person targeted was to be found). But as is obvious in the NYT story, these plans were never executed and for all we know, it may be because of those concerns about its legality that it remained only a plan.

On the other hand, I can also understand the concern of those who say all such plans, by law, must be disclosed to the body charged with oversight, whether executed or not. That’s how rogue operations are prevented, and this non-disclosure, by definition, would make it such an operation. Oversight and disclosure are key to a free and open society, so I’m sympathetic to the complaint that this operation was hidden and that’s wrong.

But other than that, I’m not at all sure any investigation in this program is going to come off as anything other than a witch-hunt and find little sympathy for the investigators with the public at large. This, in the big scheme of things, is going to be considered slap-on-the-wrist stuff for most of the public. Al Qaeda is not a sympathetic organization and considering plans to take out their leadership isn’t going to be seen by the majority of Americans as a “bad” thing, especially when the plans in question were never executed.

What happened is UAVs provided a viable alternative. Putting these sorts of teams together presented all sorts of unanticipated problems which, in combination with the UAV option, quickly shelved the idea. Why the program continued for 8 years and why Congress wasn’t informed are legitimate questions that deserve answers.

Special prosecutors and a legal witch-hunt, however, will not shed any more light on the subject and will find a largely unsympathetic public quickly on the side of those who sought, however clumsily, to protect us and against those who push the prosecution.

~McQ


Krauthammer – 2 for 2

Via The Corner, Charles Krauthammer on Fox’s News Hour with Brett Bair. First he talks about the pre-negotiated reduction of nuclear arms between Russia and the US:

That was the deal that Obama really was lusting after as a way to come home and to wave a diplomatic success.

The problem is that any deal on offensive nuclear weaponry is either useless or a detriment to the United States.

Useless because it makes no difference above a certain level how many warheads you have. We could suspend our negotiations today and say to the Russians: You can construct as many warheads as you want and spend yourselves into penury, as the Soviets did, to make weapons that are redundant, that will do nothing more than make the rubble bounce, as Churchill once said memorably.

It could be a detriment because the Russians have insisted on linkage between offensive and defensive weaponry. The reason it’s a detriment is because we have a huge technological advantage on defensive weaponry. We can shoot down a missile. The Russians can’t.

For 25 years, the Russians have attempted to get a curb on American defensive weaponry, starting at Reykjavik, where Gorbachev attempted to swindle Reagan out of our strategic defenses. Reagan said no. Bush 1 said no. Clinton said no. And Bush 2 said no.

Obama is wavering on this, and I think it could be a real catastrophe if he concedes. He already is wavering on the missile shield in Eastern Europe. Medvedev said we [he and Obama] agreed on linkage, and Obama himself had said it would be the subject of extensive negotiations.

Why negotiations with the Russians over a shield in the Czech Republic and Poland?

If he gives away the missile shield then he’s essentially given the Russian the advantage of not having to worry about losing any warheads to anti-missile defenses, thereby making any cuts, even by a third, painless. And, of course, he’s already ceded ground by agreeing to linkage and subjecting such a defense to “extensive negotiations”.

Reducing nuclear weapons is a laudable accomplishment. But weakening our defenses against such weapons as the price isn’t.

Sarah Palin:

If she thinks that this decision is a way to advance her political career, she is delusional. She could survive this. It’s possible. It may not be a fatal decision, but it’s not an advancement.

It is a quitting, and I think it’s largely a personal decision, a reasonable one. There was a lot of heat, a lot of attacks, and she wanted out, and that’s OK.

If there was a political calculation, it would have to be—if it were rational—that after the age of Obama, you know, way down the road, there are second acts in American politics. Reagan returned. Nixon returned. Clinton returned. It’s possible.

But she has to make herself serious. If she imagined she is going to be a Reagan-in-the-wilderness in the ’70′s and lead a movement, she has to be like Reagan, who was a serious man with serious ideas, who studied, who wrote, who thought, and made himself a major figure. If she doesn’t do that, she’s toast.

As much as I like Sarah Palin as a personality, I think Krauthammer has put his finger on her problem – she isn’t a Reagan or a Thatcher, or even a Nixon or Clinton. And as I’ve implied in some commentary to another blog post, with this highly partisan and poisonous political atmophere which gets 24/7 coverage, second acts are very, very hard to come by. And, as Krauthammer notes, when it’s “quitting” that defines your departure, a second act may be impossible.

~McQ


Questions and Observations #3

For new readers, the title is what the shortened “QandO” means.

  • Whether you love her, hate her or really don’t care, it is hard too argue against the assertion that  Sarah Palin effectively ended any national aspirations she might have had by announcing her pending resignation (assuming there isn’t some extremely compelling private family reason for doing so). The first thing any political opponent is going to say is “she quit on the citizens of Alaska, will she quit on you?”
  • The story about the Washington Post selling access to the Obama administration isn’t just about the WaPo. Seems to me there had to be some a) knowledge of the plan and b) cooperation from the White House for it to have been as far along as it was. After all, the first “salon” was scheduled to be held at the publisher’s home in 2 weeks. Is anyone exploring that angle?
  • How concerned is Saudi Arabia with the probability of Iran acquiring nuclear weapons? Apparently enough to make it known they’ll turn a blind eye to any Israeli incursion which crosses the kingdom in order to strike Iran.
  • Apparently the scales have finally fallen from Colin Powell’s eyes concerning Obama and the direction he’s taking this country. Formerly Powell’s message was that American’s wanted more government and were willing to pay for it. He now says he’s concerned with the number of programs, the legislation associated with them and the cost of the additional government they’ll entail. “We can’t pay for it,” he’s now saying? Better late than never, I suppose, but this just underscores my disaffection with Powell politically.
  • Speaking of Sarah Palin, apparently the federal investigation rumors (FBI looking into irregularities concerning the sports complex in Wasilla, etc.) and pending indictment are false. An FBI spokesman in Alaska has said there is no pending indictment or ongoing investigations of her. Concerning the ongoing rumor he says, “it’s just not true”.
  • The after effects of the recent “election” in Iran continue to eat away at the foundation of the “Islamic Republic”. The Association of Researchers and Teachers of Qum split with Ayotallah Khamenei declaring both the election and the new govenrment “illegitimate”. That is a very public and unprecedented challenge to Khamenei’s power. Additionally Moussavi’s campaign has released a report that outlines the election violations in detail. These are very serious challenges to the regime’s legitimacy.
  • Speaking of Iran, it appears that while the world is ready to ratchet up the pressure on the regime in light of its brutal put down of pro-democracy protesters, the Obama administration is apparently prepared to block any sanctions agreed upon at the G8 summit. I swear I can’t figure that bunch out – support the dictator in Iran and mischaracterize a legal use of constitutional power in Honduras in support of another would-be dictator there.
  • The law of unintended consequences continues to operate unabated. Governments, desperate for revenue, have raised property taxes all across the country. Homeowners, knowing their home values have plummeted, are filing an unprecedented number of appeals. Those appeals are costing the governments huge amounts of money in refunds and attorney’s fees. However, homeowners should note that if they don’t appeal, the government will gladly screw them to the wall with an unjustified tax increase. Makes you feel all warm and fuzzy inside, doesn’t it?

~McQ


About Those “New Tough Measures” Against NoKo

You have to laugh some times.  Or maybe a rueful shake of the head is more appropriate. Here’s Admiral Mullen, Chairman of the Joint Chiefs of Staff, answering questions about the reportedly tough measures the new UN resolution against NoKo allows the country, via the military, to take:

Q: Admiral Mullen, Secretary Gates, currently the U.S. military is tracking a North Korean-flagged ship, the Kang Nam, which is suspected of proliferating either weaponry, nuclear materials or missile parts. What are your options n terms of enforcing U.N. Security Council Resolution 1874? Are you prepared to board the ship at this time?

ADM. MULLEN: Without going into specific details, clearly we’re — we intend to vigorously enforce the United Nations Security Council Resolution 1874, to include — options to include certainly a hail and query. There are — part of the UNSCR is to, if a vessel like this is queried and doesn’t allow a permissive search, to direct it to go into a port, and the country of that port would, as required to, inspect the vessel, and to also keep the United Nations informed, obviously, if a vessel like this would refuse to comply.

But the United Nations Security Council resolution does not include an option for an opposed boarding or a noncompliant boarding with respect to that. And if we get to that point with a vessel that we suspect has material which is counter to — unauthorized in accordance with UNSCR, that’s a report that goes back to the United Nations as well.

Q: What do you think is on board this ship? What has made you suspicious that the military’s tracking it?

ADM. MULLEN: Well, I wouldn’t go into any kind of details, at this particular point in time, except to say that it’s very clear that the resolution prohibits North Korea from shipping these kinds of materials, the kinds of weapons that were laid out, in the material, from conventional weapons up to fissile material or nuclear weapons.

And we expect compliance. And I’ve gone through the steps that we would take.

Q: The north has said that they would take that, any sort of interdiction, as an act of war. Would that prevent you from pursuing U.N. Security Council Resolution 1874?

ADM. MULLEN: Well, I think, it’s important that this is a U.N. resolution. This is an international commitment. It’s not just the United States. It’s a lot of other countries as well. And the North taking steps to further isolate itself, to further non-comply with international guidance and regulations, in the long-run, puts them in a more difficult position.

With all due respect to Adm. Mullen, I’m having real difficulty, given what he said they could do -essentially send a report to the UN if NoKo doesn’t play along with the demands he’s authorized to make- seeing how NoKo is putting themselves “in a more difficult position” than they now occupy. More importantly, why would NoKo care?

Reading this carefully, it seems the UN has authorized them to “query” a NoKo ship and ask to inspect it. NoKo can say “no”. If NoKo says no, we can demand they go to the nearest port for inspection. But again, all the NoKo ship has to do is say “no” and that ends it. Result: Strong report sent to UN. Sounds more like punishment for those who have to fill out the report to the UN than NoKo.

Where else in the universe are such steps considered “tough” besides the UN?

~McQ


NoKo: Pressing Buttons

Kim Jong-Il is apparently not content with good old-fashioned saber rattling, and instead wants to push the envelope (or the button, as it were) a little further:

North Korea may fire a long-range ballistic missile toward Hawaii in early July, a Japanese news report said Thursday, as Russia and China urged the regime to return to international disarmament talks on its rogue nuclear program.

The missile, believed to be a Taepodong-2 with a range of up to 4,000 miles (6,500 kilometers), would be launched from North Korea’s Dongchang-ni site on the northwestern coast, said the Yomiuri daily, Japan’s top-selling newspaper. It cited an analysis by the Japanese Defense Ministry and intelligence gathered by U.S. reconnaissance satellites.

The missile launch could come between July 4 and 8, the paper said.

While the newspaper speculated the Taepodong-2 could fly over Japan and toward Hawaii, it said the missile would not be able to hit Hawaii’s main islands, which are about 4,500 miles (7,200 kilometers) from the Korean peninsula.

A spokesman for the Japanese Defense Ministry declined to comment on the report. South Korea’s Defense Ministry and the National Intelligence Service — the country’s main spy agency — said they could not confirm it.

If North Korea does carry out such a plan, it would be a most provocative act, bordering on a casus belli. Figuratively speaking, it would not be any different than the child’s game of swinging one’s arms within inches of one’s sibling while declaring “not touching!” In realpolitik terms, it is simply a threat.

Of course, the real question is, what do we do about it?

President Barack Obama and South Korean President Lee Myung-bak met in Washington on Tuesday for a landmark summit in which they agreed to build a regional and global “strategic alliance” to persuade North Korea to dismantle all its nuclear weapons. Obama declared North Korea a “grave threat” to the world and pledged that the new U.N. sanctions on the communist regime will be aggressively enforced.

In Seoul, Vice Unification Minister Hong Yang-ho told a forum Thursday that the North’s moves to strengthen its nuclear programs is “a very dangerous thing that can fundamentally change” the regional security environment. He said the South Korean government is bracing for “all possible scenarios” regarding the nuclear standoff.

[...]

In a rare move, leaders of Russia and China used their meetings in Moscow on Wednesday to pressure the North to return to the nuclear talks and expressed “serious concerns” about tension on the Korean peninsula.

The joint appeal appeared to be a signal that Moscow and Beijing are growing impatient with Pyongyang’s stubbornness. Northeastern China and Russia’s Far East both border North Korea, and Pyongyang’s unpredictable actions have raised concern in both countries.

After meetings at the Kremlin, Chinese President Hu Jintao joined Russian President Dmitry Medvedev in urging a peaceful resolution of the Korean standoff and the “swiftest renewal” of the now-frozen talks involving their countries as well as North and South Korea, Japan and the United States.

“Russia and China are ready to foster the lowering of tension in Northeast Asia and call for the continuation of efforts by all sides to resolve disagreements through peaceful means, through dialogue and consultations,” their statement said.

Keep in mind, as well, that North Korea need not tip anyone of those missiles with a nuclear warhead (which it does not yet have the capability to do) in order to pose a significant threat. Reportedly, the Stalinist regime is well-equipped with chemical weapons as well:

The independent International Crisis Group think tank, meanwhile, said the North’s massive stockpile of chemical weapons is no less serious a threat to the region than its nuclear arsenal.

It said the North is believed to have between 2,500 and 5,000 tons of chemical weapons, including mustard gas, phosgene, blood agents and sarin. These weapons can be delivered with ballistic missiles and long-range artillery and are “sufficient to inflict massive civilian casualties on South Korea.”

Although the nations involved have been ready to talk sternly about “grave threats” and to urge further negotiations to quell the tensions, Kim Jong-Il is notably unimpressed. Rather than seeking to retard the North Korean leader’s ambitions, everyone seems insistent upon being cautions in order to avoid “provoking” Kim Jong-Il. That is a shrewd plan when dealing with a crazy person, but in the end, a bully is just a bully, whether he’s crazy or not.

Unfortunately, at some point a swift smack on the nose will be necessary if we truly want to back the recalcitrant dictator up a step or two, which admittedly carries its own unfortunate possibilities. Even if that point is not now, or if and when North Korea sends its missiles hurling dangerously close to our sovereign territory, it does seem to be approaching quickly. Given the rather meek approach taken by all nations thus far, one can only hope that Kim’s own machinations do him under before the international community’s hand is forced.


Brilliant! (Update)

That Obama guy really knows what he’s doing! Yessir – we’re in good hands. And he’s sure making our friends in the world like us more than when that evil Bush was in the White House. Umm hmm:

The British Government responded with ill-disguised fury tonight to the news that four Chinese Uighurs freed from Guantanamo Bay had been flown for resettlement on the Atlantic tourist paradise of Bermuda.

The four arrived on Bermuda in the early hours, celebrating the end of seven years of detention after learning that they were to be accepted as guest workers.

But it appears that the Government of Bermuda failed to consult with the Foreign and Commonwealth Office on the decision to take in the Uighurs – whose return is demanded by Beijing – and it could now be forced to send them back to Cuba or risk a grave diplomatic crisis.

Foreign Policy 101 – coordination and negotiation with friendly countries before doing something like this for which they now have to take responsibility.

What has happened to our State Department? Lobotomies?

UPDATE: It only gets worse:

Pressed on whether the US had told the British government, an unnamed state department official was quoted as saying: “We did talk to them before the Uighurs got on the plane.”

Now a senior US official has told the BBC it was a deliberate decision not to consult London on the resettlement, after other countries came under pressure from China not to accept the Uighurs.

In a highly unusual move, a senior US official said Washington opted to keep details of the deal from London until the last minute to enable Britain to deny all knowledge of the deal and thus avoid China’s anger, says the BBC’s Washington correspondent Kim Ghattas.

The official said they expected London to be upset but added he felt the deal was made on solid ground, in direct talks with the Bermuda government, who accepted the men as part of guest worker programme.

Yeah — no arrogance there, huh? Kind of like the UK doing the same thing on Puerto Rico. Who would China go after – the governor or PR or the US?

~McQ


Miranda and War

An interesting discussion broke out in the comment section of the Miranda post, which I’m hoping will continue. The primary issue (and I’m simplifying here) centers around just how detainees caught on a battlefield should be handled if they don’t fit the established parameters of soldiers under the Geneva Conventions. Although there appears to be agreement that reading detainees Miranda rights is a step (or three) too far, there is also wide agreement that we should be skeptical about allowing our government so much latitude as to hold anyone indefinitely. I think closing the gap on those parameters is the challenge to be met, but I don’t think it is possible to do so without understanding how war differs from law enforcement.

Clausewitz defined war as “continuation of policy with other means.” The crux of his definition is that “war” is simply a tactic used to further political goals. War is not waged as end in itself, but as a means towards other ends which, for whatever reason, could not be accomplished through non-violent tactics. There are always exceptions, of course, but certainly a rational state will not expend blood and treasure when the same goals can be accomplished without. Even an irrational state, with irrational goals, will not waste such resources if it understands that it does not have to.

The other tools in the box for continuing policy include diplomacy and capitulation. Once those are deemed exhausted or unacceptable (as the case may be) then the tool of war is likely to appear. In other words, if agreement cannot be reached between erstwhile enemies, and surrender by one side or the other is not acceptable, then actual battle will be necessary to decide whose policy will be continued. At that point all manner of understanding between the parties is dead and only victory or a credible threat thereof will allow the discarded tools to once again be used in the construction of policy.

In the absence of war, there is general agreement as to how competing parties will conduct themselves in the pursuit of their policies. Citizens may vote, senators may argue, special interests may agitate, and whole nations may barter. The agreements may deal with how citizens deal with one another, how governments deal with their citizens, or how violations of the agreements are handled (i.e. law enforcement). In the modern world those general agreements are reduced to treaties, constitutions, rules, regulations and the like, all of which may be considered law. The policies themselves may also be enacted into law, but without some understanding as to the mechanisms for peacefully deciding which policy will be followed, then war is the only tool available. A rule of law, which is only useful where there is broad agreement on it, obviates the need to use war to advance policy. All of the foregoing are the hallmarks of a civil society that depends on pursuing policies through peaceful tactics. To turn Clauswitz’s definition around, law is the continuation of war by other means.

To be sure, transgressors of law will be dealt with at times in violent ways, but there is at least a tacit agreement to the law’s authority to do so where the violator is operating from within the society and generally partaking of its benefits. If enough transgressors get together then the agreements have broken down, and civil war or revolution may occur. Therefore, war can be understood as the tactic that is used when the law has ceased to be of use. More simply, war is the absence of law.

Given the above, which is nothing more than a condensed version of my personal views on the subject, it is difficult for me to understand how legal concepts can be introduced into war. Opposing factions may agree with one another to fight under particular rules of engagement, or to treat enemy prisoners a certain way, but when those rules are broken there is no legitimate authority to enforce them. The Geneva Conventions represent a more elaborate attempt to impose limits on warfare, but even those were never intended to apply to non-signatories except in very limited circumstances (pre-Hamdan anyway). More importantly, it seems obviously ludicrous to apply laws outside such limited agreement to any of the parties involved in battle, because there would be no battle if such laws were being adhered to in the first place.

So while any number of parties may agree amongst themselves to fight under self-imposed rules, that does not give any of them authority to impose those rules on others. Furthermore, except where explicitly agreed to otherwise, such rules would not govern war between a party to such an agreement and a non-party. To look at it another way, if Mike Tyson and Evander Holyfield agree to fight under certain sanctioned rules, that does not mean that either fighter must adhere to the same rules if attacked by a third party on the way home from the match.

Accordingly, in a world of asymmetrical warfare, the basic principle that “war is the absence of law” seems to apply. In this context, the very idea of approaching war with terrorists in foreign countries under a rubric of law intended to govern domestic life appears absurdly out of place. Treating detainees captured on the battlefield to the luxury of legal niceties intended to protect the very citizens those terrorists seek to harm defies all logic. And pretending that reading any of them Miranda rights will do anything more than hamper our ability to defeat these cretins is an exercise in serious delusion. In short, law is a manifestation of the agreements underlying a peaceful community, and war is the means of protecting those agreements from those who seek to subvert them.

When considering just where the line should be drawn then, between reading enemies their “rights” and allowing the government to detain them indefinitely, I think it’s useful to understand that we are not really talking about a “rule of law.” Instead, we are talking about how best to utilize the tactic of war in furthering our policy of not allowing crazed radicals to murder our citizens. While I find great merit in placing the government (i.e. our instrument of war) on a firm leash, I don’t think it is at all useful to conflate the means by which we protect ourselves from an overbearing government with the means by which the government protects us from enemies bent on our destruction.