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.
This simply can’t be right, can it? That the Obama administration secretly directed the military to Mirandize combatants and terrorists when captured? Surely this is just crazy talk:
… the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.
Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”
Ever since the Boumediene decision I’ve been warning that we’re turning legitimate military actions into law enforcement nightmares. No matter how badly we may want to achieve a world where transparency and the rule of law are the basis for all government action, the fact of the matter is that there are plenty of people out there who want to see the US destroyed regardless of the cost to themselves or their families. If we start dealing with these people as if they were common criminals, then we erode the very fabric that binds us as a nation. No longer does the word “jurisdiction” mean anything. Instead, we hand our enemies the keys to the castle.
Consider the following:
A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration’s approach. “If the US is mirandizing certain suspects in Afghanistan, they’re likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future.”
But Republicans on Capitol Hill are not happy. “When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent,’” says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. “It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.”
According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. “The International Red Cross, when they go into these detention facilities, has now started telling people – ‘Take the option. You want a lawyer.’”
Rogers adds: “The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he’s building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer – you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone.”
Prosecution of any war, regardless of what your betters may think, is absolutely impossible in a law enforcement setting. Imagine having to “arrest” enemy soldiers instead of shooting them on sight. Or worse, think about the complications involved when a soldier shoots anyone, as compared to when a policeman is involved in a shooting. How would it work to take custody or extract intelligence from any enemy soldier if our soldiers have to apply mercurial Supreme Court precedent to each situation before risking their lives? Any cop will tell you that it’s hard enough keeping up with the norms as laid down by the high court (and interpreted by the administrators) in order to simply arrest common criminals. The idea that soldiers in the field of battle have the time or ability to “arrest” terrorists and the like, in places where English is not likely to be a common language (N.B. does that mean the military will be required to provide interpreters before apprehending anyone?) is simply ludicrous.
War is not pretty, and anyone who pretends to make it so is simply a fool. Ugly, unmentionable, outrageous and despicable things happen in war, as they do in any struggle for life. Creating an imaginary world in which there are breaks for tea and the enemy plays by the same (or any) rules is how the British lost North America. Subjecting ourselves to the vagaries or our enemy’s backwardness, by ignoring their complete denial of our moral superiority, will only serve to hasten our defeat.
For the foregoing reasons, I have to assume that Stephen Hayes is on the wrong end of some very bad information. As much as I may disagree with the Obama administration on a great many things, I have a hard time believing that they could be this naive and unconcerned about the future of our country that they would grant unprecedented gratuity to those who most wish us ill. The policies are most certainly wrong, but they can’t possibly be this misguided.
And nothing could make that point better than this:
Defense Secretary Robert Gates isn’t ruling out spending more on missile defense than what he’s asked for in next year’s budget if North Korea or other nations increase threats against the United States.
Gates said the missile tests by North Korea over the past week appear to have attracted more support on Capitol Hill for missile interceptors.
Candidate Obama was pretty darn sure that these interceptors just weren’t needed because, you know, they just weren’t! Russia isn’t our enemy anymore and we get along fine with China – where’s the threat?!
Well during the entire lead up to the 2008 presidential campaign, North Korea and Iran were flinging missiles around right and left each, seemingly, with longer ranges and larger carrying capacity.
Ignored. In fact, as I recall, Obama dismissed Iran as not much of a threat at all. Something about Iran being a ‘tiny’ country that ‘doesn’t pose a serious threat.’ Certainly not one that required a missile defense.
Politics. All politics. Nothing based in reality, but instead dismissive rhetorical hand-waves designed to please the base. And those who controlled Congress picked up on the tune and danced to it.
Now, suddenly, by doing almost exactly the same thing they’ve done for some years, North Korea has managed to resurrect the need for a missile defense?
Well that’s easy. Now they’re governing, suddenly not having an armed missile land on friendly territory during their watch is a priority.
Politics. The only real reason they opposed it previously is because the other side wanted it.
Of course, if questioned about why this is different than when NoKo and Iran did this sort of thing the last few times, I’m sure they’d find a way to spin it that they think wouldn’t make them seem so short-sighted, petty and partisan (read the article, there’s plenty of spin included).
That won’t change the fact one bit that they were indeed short-sighted, petty and partisan.
While at a conference in Singapore with Asian defense leaders, Sec. Gates did a little podium thumping about North Korea’s recent nuclear test:
“We will not stand idly by as North Korea builds the capability to wreak destruction on any target in Asia — or on us,” Mr. Gates told a major defense conference here that has been dominated by North Korea’s test this week of a nuclear device and the firing of at least six short-range missiles, all in defiance of international sanctions.
It took a foreign journalist to point out to Sec. Gates that while the US may not recognize North Korea as a nuclear weapons state, it was, in fact, already a “defacto nuclear weapons state.”
And, of course, it was important that Gates do a little apologizing to the assembled group as well, since this seems to now be an integral part of any foreign visit:
Mr. Gates concluded that the United States, “in our efforts to protect our own freedom, and that of others” had “from time to time made mistakes, including at times being arrogant in dealing with others.” Mr. Gates did not name names, but then said, “We always correct course.”
Other nations in the region weighed in on the North Korea nuclear test as well:
In Moscow, the Kremlin issued a statement saying President Dmitri A. Medvedev and Prime Minister Taro Aso of Japan had agreed on the need for a serious response to the nuclear test, Reuters reported.
As is usually the case in these sorts of situations, no one has any idea of what might constitute a “serious response” . In essence, the most “serious response” discussed thus far at the conference has been tightening sanctions. And we know how well sanctions have worked in NoKo and Iran.
Unofficially, about all that’s gone on is this:
“There’s no prescription yet on what to do,” said a senior American defense official who asked for anonymity because he was not authorized to speak publicly. The official said that one “prudent option” was “what should we be thinking about in the event that we need to start enhancing our posture, our defenses?” But the official said that it was premature to talk of building up American forces in the region — an echo of comments from Mr. Gates on Friday that the United States had no plans to reinforce some 28,000 American troops based in South Korea.
Well there you go. China also had a few words to say as well:
“We are resolutely opposed to nuclear proliferation,” General Ma said, adding that “we hope that all parties concerned will remain cool-headed and take measured measures to address the problem.”
China is resolutely opposed to nuclear proliferation only after NoKo. That means it wants no nukes in Japan. And its admonishment to all to remain “cool-headed” and take “measured measures” means it is in no hurry to do much of anything about the present problem. Of course, China holds the key(s) to dealing with NoKo and everyone knows it.
So? So as usual, North Korea does what it chooses to do and nothing of significance is being done to “punish” it for doing so. I’m sure, as is the MO of the Obama administration, that the blame for all of this will be laid at the previous administration’s feet, but a quick perusal of history going back later than 8 years will show than no US administration has actually dealt effectively with North Korea and the present one isn’t going to be any different – despite its apology.
So what’s on the Middle Eastern agenda for the Obama administration?
Frankly that’s the question being asked by a lot of foreign policy watchers right now, especially since President Obama has added Saudi Arabia to his trip itinerary for an upcoming trip to the area. Originally scheduled to first make a stop in Cairo for a speech, he is now stopping in SA first. This, of course, has the Egyptians a bit miffed. Egypt was touting his trip and speech to Cairo as a sort of vindication of their foreign policy as well as their resurgent leadership role among Arabs in the area. Now that’s not quite as easy to claim.
One group sees it as tied closely to the Israeli-Palestinian track, focusing on the Arab Peace Initiative and the coming unveiling of the Obama approach to Israeli-Arab relations. Another sees it as tied more closely to Iran, preparing the Saudis for the coming engagement (or confrontation) with Tehran.
I happen to think it is a little bit of both, but mostly tied to Iran. NoKo has popped a nuke (and we’re aware of the ties between Pyongyang and Tehran). Iran has fired a long range missile. Intelligence says Venezuela and Bolivia are providing Iran with uranium (which both deny). That requires a bit of a change in focus of the mission from one exclusively focused on Israel/Palestine. Iran has heated up and the Arabs are not friends of Iran, certainly feel threatened by them and darn sure don’t want to see Iran establish itself as a regional (and nuclear) power. SA would be a logical stop for discussions on that issue.
As to the Israel/Palestine question, Marc Lynch of Foreign Policy magazine wonders:
… will he reinforce or challenge the “moderates vs resistance” frame which he inherited from the Bush administration? The Arab leaders he has been meeting, like the Israelis, are perfectly comfortable with that approach, dividing the region between Israel and Arab “moderates” vs Iran and Arab “resistance” groups like Hamas and Hezbollah. That’s the easy path. If followed it is likely to fail badly, destroy the hopes for change which his engagement policy has raised, and leave the region right back where Bush left it.
I think there is no question he plans to shake up the status quo. But how he chooses to broker “change” in the engagement policy, his change may face the same risk of abysmal failure other policies have produced. The Hill is reporting that Obama plans on challenging Israel’s plan to continue to allow West bank settlements to grow.
“Each party has obligations under the road map,” Obama said after referencing his meeting last week with Israeli Prime Minister Benjamin Netanyahu. Obama said he has been “very clear” on the need to stop settlement and outpost activity, and he also said Israel has obligations to ensure a viable Palestinian state emerges from the peace process.
Israel has rejected that portion concerning the settlements on the West Bank. That rejection came after the Netanyahu/Obama meeting in Washington DC.
Netanyahu has set out the Israeli negotiating position:
“The government of Israel under my leadership is committed to the political and international agreements signed by the governments of Israel, and we expect others to honor their commitments as well,” Netanyahu told the Knesset. “We want an end to the conflict, and we want reciprocity in the claims on both sides and their implementation. Unfortunately, in this we are also being innovative. We should not have to innovate; it should have been obvious. However, when we are asked to recognize our international commitments, I say yes, and I want others to respect their commitments as well.
“We are prepared to act, and we will take concrete steps towards peace with the Palestinians,” Netanyahu continued. “We also expect the Palestinians to take such concrete steps on their side, and it would be good if the Arab countries joined in the effort towards peace, and take both concrete and symbolic steps towards normalization, and not later, but right now. They are asking us to act now, and so the Palestinians and the Arab countries should also be asked to act now.”
Or shorter Israeli stance – if we’re required to live up to international commitments, the same demand must be made of (and accepted by, and acted upon) by others included in these negotiations.
Right now, one of the major obstacles to any such negotiations is not with the Israelis, but among Palestinians:
The Palestinian Authority faces its own challenges in brokering a peace deal, namely the split between Hamas and Fatah — and, therefore, between Gaza and the West Bank — that essentially renders a two-state solution a three-state solution. Since the violent splinter between Hamas and Fatah in 2007, the U.S. has dealt only with Abbas.
So does the US change its policy and actively enter into negotiations with a terrorist group in hope of brokering a reconciliation? The chances of such a reconciliation seem remote. And of course, the splintering within the Palestinians makes the talk of a “two-state solution” an exercise in unachievable rhetoric for the time being. Why should Israel enter into serious negotiations about such a solution when they are unachievable as it stands today?
This will be an interesting trip to monitor.
More to come.
Edit: Changed Ecuador to Bolivia – thanks for the catch, looker.
A very interesting piece in the LA Times about some European muslims who failed at the job of “holy warrior – or did they?
Pakistan is discovering that their unwelcome guests in the Swat Valley are harder to get rid of than cockroaches.
Apparently Rep. Collin Peterson (Minn.), the outspoken Democratic chairman of the Agriculture panel, isn’t happy with the Waxman/Markey Cap-and-Trade bill and is promising trouble.
It seems even the NY Times is catching on to the Obama rhetorical devices. Helene Cooper points out that some of Obama’s “enemies” are “straw men” and Sheryl Gay Stolberg notes that many of Obama’s “nuanced” positions would be flip-flops if it was anyone else. Of course both articles were published in the Saturday NY Times, so its not like they’re really calling Obama to task.
The Washington Post, examining Venezuela strong man Hugo Chavez’s latest attempt to destroy any domestic opposition, wonders if the Obama administration’s silence on the matter constitutes sanction by silence. Well if that’s the case, what does Nancy Peolsi’s silence about the use of waterboarding constitute?
A porn star is considering a run for the US Senate from Louisiana. Given the fact that she’s only worked in a different type of porn than what goes on in the US Senate, she ought to fit right in.
The NY “bomb plot” has apparently degenerated into an “aspirational” one.
And finally, it looks like Brits are finally fed up. According to reports, a big “vote the bums out” movement is taking shape in the UK. We should be so lucky.
Chris Cillizza notes:
President Barack Obama’s reversal on the release of detainee photos has angered the liberal left, a perceived poke in the eye that has left some questioning Obama’s commitment to progressive policies.
“Progressive policies”? Here’s the stated Obama reasoning:
Obama argued that “the publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals” and, in fact, the most likely effect would be “to further inflame anti-American opinion and to put our troops in greater danger.”
As the Clintons would say, this is “old news”. The situation in question has been sifted through with a fine-tooth comb and those who responsible are in jail. What in the world, other than what Obama points out, would be the effect of releasing old photos now? Is it “progressive policy” to do precisely what Obama wants to avoid?
I supported the release and the investigation into the abuses at Abu Ghraib. We covered them extensively here at QandO, and frankly, didn’t think those further up the chain of command got everything they deserved for letting the situation develop. Nothing new will be learned from the release of more photos. But what we do know is there are those who will use such a release for purposes that are not in our best interest and the end result will be endangering our troops in the field.
As you’ll see in Cillizza’s article, it is mostly the usual suspects in the left blogosphere who are whining and stamping their feet. Others outside that group apparently have much cooler heads and apparently better reasoning power:
“Politically, not reversing course could have had much worse consequences,” said Tad Devine, a Democratic media consultant. “I think it is the right move, and that makes it a smart move politically.”
And I, for one, applaud the decision.
You know, when you’re in DC it seems such a calm and beautiful place, and yet, the cynical machinations of politicians continue unabated.
We now have Nancy Pelosi under fire for essentially sanctioning the “advanced interrogation techiniques” by not speaking up against them or opposing them when she was briefed about their use many years ago:
Nancy Pelosi didn’t cry foul when the Bush administration briefed her on “enhanced interrogation” of terror suspects in 2002, but her team was locked and loaded to counter hypocrisy charges when the “torture” memos were released last week.
Many Republicans obliged, led by former CIA chief Porter Goss, who is accusing Democrats like Pelosi of “amnesia” for demanding investigations in 2009 after failing to raise objections seven years ago when she first learned of the legal basis for the program.
She and her staff can be as “locked and loaded” as they wish, but the fact remains that she’s said nothing about the use of those techniques for 7 years – not a single, solitary word to anyone about opposing them on any grounds.
So the use of these techniques wasn’t something which was going on in a dark corner out of the view or knowledge of Congressional leadership. Democrats have tried to sell that as the “conventional wisdom” – a fascist and authoritarian president making decisions that violate human rights behind closed doors and without the knowledge of the enlightened Dems who would surely have stopped it if they had only known.
But they did know – and said nothing. In the realm of Washington politics that is the same as giving something sanction.
More importantly, Democrats would like for you to believe that these things took place due to an out-of-control executive branch. However, and as usual, this all took place because both Republicans and Democrats in Congress allowed it to take place. When you have the information necessary to stop something you supposedly oppose and do nothing, you become as complicit as anyone.
So as I said in the beginning, Pelosi’s staff as “locked and cocked” as they wish, and they can spin it until they puke, but the fact remains she can’t plead ignorance and she certainly can’t say she did or said anything in opposition, and that that speaks louder than anything her spin machine can gin up in her defense.
Whether or not you agree with the use of the techniques doesn’t change the fact that when it came to “put up or shut up” time where leadership and principle were called to the fore, Nancy Pelosi blew it and any criticism or spin she or her staff now puts forward has the horrific stench of hypocrisy emanating from it.
USA Today says the public sees Obama’s first 100 days as a “strong opening”.
But when you get in the number of the USA TODAY/Gallup Poll, it’s not quite as strong an opening as you might expect:
Now, 56% say he has done an “excellent” or “good” job as president vs. 20% who rate him as “poor” or “terrible.” An additional 23% say he has done “just OK.”
His excellent/good rating on national security is 53%. On the economy, it is 48%.
“He is seen as someone who was handed a large array of challenges and is dealing with them in a sensible way,” adviser David Axelrod says.
Those are lower numbers than I expected. And certainly very interesting numbers on the most pressing interest of the day – the economy. Those numbers also signal to me that this is now considered the “Obama economy” now, whether deserved or not.
As for national security, I’m not sure what rates the number – he’s really not done anything concerning national security except do a little talking about the subject. And, despite claims to the contrary, SEALs taking out three rag-bag pirates who botched a highjacking was not a victory on the national security front.