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    Stuff I Want to Learn: National Security

    Right after the election was over, I started a series of posts called Stuff I Learned, about the history of American presidents, as I read a book called The American Presidency. I didn't get very far into the book, and now I can't find it. I'm not all that worried about finishing, not being a fan of non-fiction.

    So, at least for now, I won't be sharing with you the stuff I learned about American history. Instead, I'm hoping you'll share with me stuff you already know, because I'm confused.

    1. What are our options for dealing with the group of Guantanamo detainees who have not committed a crime but are judged to be a threat? Essentially, they are prisoners of war, right? So, if we let them go, they'll continue to fight us. But if there is never an end to the fight against terrorism, how can we hold them forever? What do we do?

    2. What is Cheney's fucking problem? Does he want to stand trial? Is he daring the Justice Department? Is he talking so much as part of a larger Republican strategy to make the debate about national security so that Obama can't implement his health care agenda? Or is he simply the world's largest prick?

    3. Why is the progressive left employing ridiculous rhetoric? Obama is just like Bush? Do they really believe that or are they just throwing a temper tantrum because he hasn't created their version of America-Happy-Fun-Land after five months in office?

    Please discuss. I'll watch, and hopefully learn something.



    1. What are our options for dealing with the group of Guantanamo detainees who have not committed a crime but are judged to be a threat?

    Well, we're probably going to disagree on this, but I think this one is simple: You charge them and provide them with due process of law or you let them go.  What does "judged to be a threat" mean?  Who judged?  What's the criteria?  Is it the same people using the same criteria resulting in the detention and ultimate release of numerous individuals that were determined to not really have been a threat after all?  This situation provides a perfect real world example of why we have a legal system that is founded on principles like habeas corpus.

    Or: Execute them.  If we're going to detain them indefinitely with charges or trial, then we've already sentenced them.  Why not just assume that they've already committed the most heinous of crimes and visit upon them the most severe punishment?  If this suggestion bothers you, then it's probably time to re-examine the premises for indefinite detention.

    Indefinite detention bothers me, so I don't think we disagree there. But, for all the idiotic errors that the Bush Administration made carrying out their wars, we were at war and we still are. So, it's not as easy as just release them. What I heard the President say yesterday is that there are five categories of prisoners.

    1. Those who were detained wrongly and need to be released.

    2. Those who were detained and can be charged under U.S. criminal law.

    3. Those who were detained and can be charged under another country's criminal law.

    4. Those who were detained and can be charged under a military tribunal.

    5. Those who can't be charged under U.S. criminal law but if released will go back to the "battlefield." Now, maybe my interpretation of this is wrong, because I will admit that I have very little knowledge of law and military, but my understanding of this group is that they would be considered sort of traditional prisoners of war. What have we done in the past with prisoners of war? We never put them through our court system, did we? Didn't we hold them until the end of the fighting and then swap them for our own people being held as POWs by our enemy? So, now, we can't do a prisoner swap, because a) we're still fighting and b) they don't any of our people. But they haven't committed any crime except fighting against us in their own country. So what do we do?

    There are several problems here.  First of all, there's the matter of whether we're at war.  There's been no formal declaration of war.  True, we conduct such affairs under the War Powers Resolution these days.  However, there's a good reason for not actually declaring war.  Here's what Alberto Gonzalez had to say about it back in 2006:

    There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.

    The whole idea is that instead of actually declaring war, which has a whole bunch of undesirable legal baggage, you create a new, parallel scenario that has all of the features of war without any of the legal trappings.  There's also the interesting case that despite bending over backwards to avoid actually being at war in the legal sense, Bush was still able to constantly tell the nation that we were at war.

    I've never bought into the idea of a "war on terror".  Terrorism is a tactic.  Similarly, I don't buy into the idea of a war on drugs.  Nation-states go to war.  Drugs are inanimate chemicals.  Terrorism is a categorization.  Neither of these can hold up their side of the war equation.

    If these people were actually prisoners of war, they would be entitled to the protections of the Geneva Convention of 1949.  Instead, they are POWs that aren't really POWs in a war that isn't really a war.  You're right: There will be no prisoner swaps, but not just for the reasons you've listed.  There's really no one to swap them with.  We're not at war with a nation-state.  We might be at war with an ideology that employs certain tactics, but even this is just an idea, not a tangible reality.

    So, I don't even know that category five actually exists.  I really don't.  I know they can't be prisoners at war because we wouldn't be having this discussion if they were.  Based on memos that have surfaced, it's clear that the previous admin was going to great pains to avoid this classification in specific consideration of the Geneva Convention of 1949.

    If they cannot be charged, they should be released.  If they commit acts of violence, then they should be captured, detained and charged.  This formula has served us well.  Why are we abandoning it now?

    Not only are you completely, naively, wrong, but we should just go ahead and round up everyone who might commit an act of violence just to be safe. Think of the children!

    F-ck the children. They're dangerous. One of the little buggers got me sick the other week. Round 'em up too. I hereby declare War on Children.

    Will there be amnesty for former children?

    Hence the "Minority Report" meme that's floating around now.

    But, seriously, why not just execute them?  Leaving aside legal niceties like the Geneva Convention, POWs have historically been SOL, up to and including execution.  We executed German POWs in WWII.  In the history of POWs, the Geneva Convention is more or less a blip on the radar, the rules for dealing with them being constrained to "anything goes".  Apparently, that remains the case today.

    This is just a guess, but I'm thinking we probably executed prisoners that nobody knew we had before anybody had the chance to weigh in on whether it was a good idea. Now, the cat's out of the bag.

    I suppose sometimes it really is better to ask forgiveness than permission.

    I'm talking about in the past, like WWI and WWII and Vietnam past.

    Oh, sure.  The prisoner executions in WWII that I was referring to were discovered by Stephen Ambrose after interviewing WWII veterans.

    But we are at war. Whether we've classified it that way or not, we went to another country and started shooting. For all of the reasons you've listed, it's not a conventional war or even a "real" war. But it is what it is. We've put our troops in harm's way.

    Again, my understanding of category #5 might not be correct, but the way I read them is basically men picked up during the fighting. So, if we release them, and they go back to the fight and more of our troops die as a result, isn't that irresponsible of us?

    Please understand, I'm not advocating for permanent detention. Because that idea totally sucks for a whole bunch of reasons, not the least of which it goes against our legal foundation.

    One other thing that I just thought of is that maybe no other country will take the category #5 detainees. Maybe Afghanistan or Iraq or Saudi Arabia or wherever doesn't want them back. They obviously aren't ever getting released on American soil, so I ask again, what do we do?

    I think the answer probably lies on a case-by-case, very careful basis of evaulating what the options are. This will, of course, take a lot of time, just when it seems like the left is loosing patience. The right sees it, and is going in for the kill.

    I trust Obama to have the political skill to navigate the problem. And believe me, if we're right here in this place a year from now, I'm going to feel differently. But his speech yesterday, which I thought was his best yet, showed me again why I voted for the guy. He refuses to boil down a problem into simplistic talking points. I think this is because he thinks that the American public, as a group, is not stupid. I hope he's right.

    First of all, Iraq and Afghanistan are two completely different scenarios.  Iraq was a sovereign nation.  Afghanistan is more like a failed state.  Furthermore, I acknowledged that we do business under the War Powers Resolution and not by way of the constitutional process of declaring war.

    What if they go back and, I dunno, better the situation in their respective homelands?  We don't know what they're going to do.  All I know is that someone says they're a threat and that those someones are not entirely credible.

    Why shouldn't they be released on American soil?  We aprehend and incarcerate them, don't have anything to charge them with, but insist on maintaining that they're a threat?  And then we go all NIMBY on them?  Do they have any rights whatsoever?

    I thought Obama's speech was great, too.  My favorite part was when he reminded us that following our principles keeps us safe.  That's why I firmly believe that we should follow our principles and release detainees that we have determined not to be culpable for any crime.  I think it speaks volumes about our national character to the rest of the world and I honestly believe, as Obama professed yesterday, that this is the key component of national security.

    See, the reality is that we really can't stop terrorist attacks.  You just can't.  That level of security is imaginary.  Instead of hyperventilating over ever imaginable threat, we should be using our immense power to better conditions for people around the world.  We've gone too far off into Machiavelli territory.  It's all fear and no love.  There will always be extremists, but selectively adhering to the rule of law decimates our moral authority and makes extremists out of reasonable people because they're left with few options.  I want this country to be worthy of its self-image.  I want the rest of the world to love and respect us not because we think we're so great, but because we are, because we've shown that it is possible to live by our principles even in the toughest of circumstances.  That's how we'll successfully marginalize vicious theocrats, not by legitimizing their criticisms.

    So, if we release them, and they go back to the fight and more of our troops die as a result, isn't that irresponsible of us?

    Only if you think it's irresponsible of us not to go ahead and lock up people who appear to exhibit antisocial behavior. After all, if we don't lock them up, and they kill someone, then wasn't it our fault for not acting preemptively?

    Keep in mind, we're talking about people who have committed no crime. At least, no crime that we can prove, even by military tribunal standards. Perhaps A-man can clear up what those standards are, but I suspect it doesn't require "beyond a reasonable doubt".

    DF, this point is well-made, and I'm in agreement with most of it, but let's take it a step deeper. Why are there different rules for POWs. Why don't we try enemy soldiers in American courts? The answer, I think, is that it's simply impractical. You are unlikely to have evidence that captured soldiers have committed any specific crimes, so you can't convict them, and you likely lack the resources to prosecute them in any case. But if you release them during wartime, they'll likely return to battle. So the handling of POWs is essentially an extrajudicial exception, though a longstanding one that has been codified.

    If you have one exception, why not create another? While there is no declaration of war, the problem is similar: a lack of evidence that captured fighters have committed any specific crimes coupled with a concern that released terrorists will likely return to terrorism. In principle, I see no reason why we couldn't make an additional exception for foreign terrorists. The problem is the one that Orlando raises. Holding a suspected POW (who was probably wearing an enemy uniform) for the duration of a war seems like a justified exception to the judicial process. Imprisoning suspected terrorists for life seems to go too far.

    The answer that you offer may be the only conscionable one in the end, but I don't think it's as clearcut as you suggest.

    Two things: First, there are rules for dealing with POWs, covered by the Third Geneva Convention (1949), that aren't being followed.  If they were, I believe this entire discussion would be decidedly different.

    The other issue is the duration of the war.  There's no one to negotiate an armistice with.  Will there ever be an end to terrorism?  No, there won't.  Just like there won't ever be an end to the war on drugs.  It'll go on as long as we say it does.  This is why I don't accept this definition of war.  It be a campaign, it might be a crusade, but it's not a war at all in the typical sense.

    Terrorism is a tactic.  It will exist as long as there is someone who is willing to employ it.  FWIW, and I'm sure you've considered this, we're the terrorists to people who suddenly become collateral damage through no fault of their own.  I think the "war on terror" represents a paradigm that is fundamentally broken.  I also don't think that you'd disagree that the Bush administration rightly recognized it as a paradigm that would allow them to assert an expansive philosophy of executive power precisely because it can go on indefinitely.  Like the old joke about the device that repels pink elephants, people like Cheney continue to talk about they kept the country safe.  So, even in peace there will be a justification for continuing the war on terror - it's working!

    I have no idea from what county these detainees hold citizenship, so this might be a non-starter, but it seems to me that if they are at least similar to traditional POWs (in that they were captured in some sort of battle-type scenario), we should hold them until our troops are home.

    Of course we will never stop terrorism, just as we can never stop murder, theft, etc. But we have already in place a legal structure to deal with specific acts of terrorism where we don't have any legal structure to deal with POWs that aren't really POWs. Ultimately, we have to release them. But I just can't feel right about releasing a prisoner back to Iraq when we still have our own soldiers there.

    If the prisoners are not Iraqi or Afghani, then it's even more problematic.

    Well, we don't say that we're engaged in a "war on murder", do we?  It's war in rhetoric, but not in legal technicality.  And that's by design.  There are rules for dealing with detainees in matters of war and there are rules for dealing with them in criminal law.  Instead, we've placed these detainees in a bubble where none of this stuff applies.  Again, this is by design.

    I don't understand why the presumption of innocence seems not to enter into this discussion at all.  Why is it any more right to continue detaining them with no other grounds than maintaining the vague position that they could be a threat?  If they were captured on a battlefield, as in Iraq, then treat them as POWs and follow the according rules.

    The presumption of innocence doesn't matter if they are POWs. If a guy is shooting at you and you capture him, he's your prisoner. He hasn't committed a crime.

    I agree that by design the Bush Administration has made all of this vastly more complicated. And by picking up people randomly or based on tips, it's complicated even further. But again, what I heard the President say yesterday is that he understands all of these complicating factors, which accounts for his separation of the detainees into categories.

    Sure, but as I've repeatedly stated, there are rules for POWs that we aren't following.  If we were, this conversation would be a lot different.  We're having this conversation because of the implementation of a philosophy that basically holds that there really shouldn't be any rules, oversight or accountability governing these processes.  That's why we have "detainees" and not POWs.  If they are indeed POWs, then follow the Third Geneva Convention.  There's no need for this ambiguous fifth category.

    Well, maybe that's the decision that they'll come to: to treat them as POWs under the Geneva Conventions. It's not Obama's fault that this problem exists. I appreciate that he's taking the time to think it through. But I've read, with some concern, suggestions that he's come out in favor of indefinite detention. I know he mentioned it yesterday as a possiblity, but I didn't read that as he supports the idea. It's a gigantic problem with no good answer, left over from eight years of crap. Yet another reason why I don't know what Cheney's fucking problem is.

    Obama certainly didn't create this problem.  I hope that he solves it.  I doubt that he favors indefinite detention.  However, he did apply for and get the job.  He knew the problems.

    As I've mentioned elsewhere in this thread, I think that taking was he says publicly at face value is silly.  Just as there were unwritten rules for what Obama the candidate could or could not say, there are unwritten rules for what Obama the President can or cannot say.  If, for example, Obama decides to treat them as conventional POWs, that has specific implication.  It would be wise to prepare for that outcome first, then announce it.  I get that.

    And to be honest, I think that most of the critics get that.  Nevertheless, there's something to be said for keeping pressure on this stuff.  The squeaky wheel gets the grease.  Keeping the buzz going on these issues helps to insure that they aren't simply lost in the din of the 24 hour news cycle.  If Obama delivers, the critics will be pleased.  People like Greenwald aren't just out to get Obama.  They're making specific policy criticisms that are consistent with their point of view on these policies under the previous administration.  Some would call that intellectual honesty.  Greenwald, if you actually read him, gives Obama his propers along with criticism.  I find the getting upset about the people who are upset at Obama to be equally silly.  He's a big boy.  He can weather the criticism.  Cocoa and blankets all around.

    See reponse(s) below...

    Quite a can of worms you've opened, Orlando. And we aren't even looking at the bigger problem, which is that the laws of war are in desperate need of updating to 21st century standards. I'm a big fan of the Geneva Conventions. Despite repeated and ongoing violations, they have saved the lives and limbs of perhaps millions of combatants and non-combatants.

    But they reflect a 20th-century view (and reality): wars that start by getting declared, and end with a surrender, armistice or peace treaty. Combatants who wear identifiable uniforms. No failed states, mercenaries, wars of liberation, terrorists, insurgencies or assymetrical warfare -- all the stuff that typifies today's "fog of war."

    The Bush administration finally noticed the existing rules were dated, but drew an unwarranted conclusion: that they therefore no longer applied. If a particular piece of international law is flawed, you work (with other nations) to improve it; you don't discard the entire concept of the rule of law. One more thing to add to Obama's second-term to-do list.

    This is a great point.  And it's not as if the rest of the world wouldn't have co-operated with us to that end after 9/11.  Instead, we dissed our allies as being part "old Europe" and decided that acting unilaterally was somehow justified in a "post-9/11" world, as if this was the first time in history that a country had been attacked by foreign radicals.

    I just watched Rachel Maddow's take.  I read part of Obama's speech, but I didn't get to the where he literally forwarded the idea of preventive detention.  This is a problem.  "Serious moderates" might want to consider what that sounds like in the rest of the world, outside of the narrow playground where they can casually dismiss criticisms as being nothing more than the emotional explosions of the marginal left (and despite the obvious fact that those criticisms are consistent with those levied against Bush).

    Excellent point.

    2. What is Cheney's fucking problem?


    Personally, I think it's a little bit of megalomania and a little of applying the Bush doctrine to media warfare.  It's a pre-emptive strike against the possibility that investigations of some kind might actually have legs.  It was pretty easy for Cheney to avoid scrutiny while he was running the Fourth Branch.  Cheney isn't stupid.  I'm sure that there's still some part of his brain that can imagine a plausible scenario where he becomes legally culpable.

    Here's a little more support for the "fear of prosecution" theory:

    3. Why is the progressive left employing such ridiculous rhetoric?

    Well, let's unpack this a bit.  "Obama is Bush" or even "Bush-lite" (tastes great, less unlawful?) is silliness.  Remember that picture I posted that morphed Bush and Obama together?  It was totally unnatural, so I know that Obama and Bush are like oil and water.  At least psychically.  However, on issues like the one in your first question, there is a legitimate criticism that Obama has yet to deviate substantively from several controversial positions staked out by the Bush administration.  Obama has announced his intention to change these things, but it doesn't take too long after an election for Americans to remember that talk is cheap.

    Personally, I'd chalk at least part of it up to impatience.  I'm willing to give him the benefit of the doubt and the time to get it done.  However, if there haven't been substantive changes, or at least some good indicators of progress, by this time next year, it's going to be a lot harder to say that he just hasn't had enough time yet.  Doubly so the following year.

    Understand, I fully supported Obama, but one of the reasons I did was that he had what I felt were the right things to say about restoring the rule of law in America.  Right now, there are two distinct groups of people that illustrate that the rule of law is far less than universal at present: Those who can't get any justice and those who justice can't get.  I don't think that my impressions that Obama cares about the rule of law and promised to work to restore it are figments of my imagination.  Again, I'm willing to give him the time he needs to get it done, but there's a limit to how long that can go before everyone who believed him ends up feeling like a rube.

    Fool me once.. I, uh, erm.. I can't get fooled again.

    The progressive left has employed ridiculous rhetoric for a long time. It's just more obvious when you disagree with them.

    I don't disagree with their premise. Just their timeline and their temper tantrum.

    What I'm suggesting is that the rhetoric hasn't changed. When Bush was in office, it seemed like justified rage. Now it seems like a childish overreaction. But for eight years, the left has fostered public anger, and IMO, many people like to be angry. And so it continues.

    This is interesting to me.  So, was it justified under Bush just because it was Bush and not Obama?  I'm sure you don't actually subscribe to this notion.  To that end, I would say that if the criticism was justified on a substantive basis under Bush and if the policy hasn't substantively changed, then those criticisms stand.  Now, as to the level of anger, specifically the anger directed at Obama, I think that's at best impatient and at worst just shrill.  However, the emotional output is different to me than the actual substance of criticisms of specific policies.

    The criticism is not in question. The rhetoric is.

    I don't have much taste for overheated rhetoric period, but during the Bush administration, I could at least emphathize with the rage.

    Perhaps that outrage was not born of the irrational hatred of one man, but the disgust over a set of reprehensible policies.  If those policies have in fact not changed or changed very little (or, as some are arguing, have actually changed for the worse), then the justification for that outrage has not changed either, your own personal empathy notwithstanding.

    I have to say that I really find all of this a bit odd.  These supposedly loony lefties were the same people who were criticizing Bush and cheerleading Obama's campaign last year, but they did so because they believed, and I would argue that this belief was sound, that Obama largely agreed with those criticisms and intended to act accordingly.  Now they are criticizing Obama, but it's strictly because he appears to be embracing policies that he appeared to oppose last year.  Certainly there are political realities to take into account, not to mention that he's only been in office for four months, but there's nothing inconsistent about the content of the criticisms.

    Is the rhetoric really that elevated?  I don't know.  I'm seeing some pretty well-reasoned criticisms for some moves along with well-reasoned praise for others.  Take this essay by Bill Moyers (at the verboten Salon.com, fair warning).  Is Bill Moyers a mouth-frothing, raving Bolshevik?  No, he's not.  He's calm, sane and one of the last American investigative journalists that's worth a damn.  He's one among many that have a lot well-metered things to say.  This essay in particular provides a salient historical context for the way that single-payer gets pushed out of the picture every time there's a remote chance that it might even be seriously discussed.

    It seems inevitable that campaign promises will be broken.  That's the kind of core cynicism you apparently need to suck it up and participate in American politics.  However, the degree to which they are ultimately broken will bolster criticism of the President across the political spectrum.  Right now, the best defense of Obama is that he's been in office a very short time.  It's undeniably true and it goes a long way in defending him, but that's a defense that will, by its very nature, expire.

    Maybe it would be helpful if, instead of railing against the supposedly out-of-touch rhetoric of some faceless political left, we were to identify exactly who or what we were talking about so that such comments could actually be evaluated on their merits.  Otherwise, I have to say that it begins to sound not at all unlike the way the right dismisses criticism, where for almost twenty years nearly all dissent has been swept under the rug by being attributed to a well-known group of lunatics: "liberals".

    1. (continued)

    I like cocoa.

    And I don't mind people leveling specific criticisms. It's the shrill, knee-jerk reactions that get on my nerves. It gets on my nerves from the right also. There's something in our brains that has a tendency to discount complicating factors when making a point. It's a human flaw (that OBVIOUSLY I DON'T HAVE), and it bugs me.

    Well, this is the way I look at it: It's politics.  If you're taking it at face value, you're probably going to end up feeling like that.  Just like I know that Obama has things on his mind that he isn't saying, I also know that when organizations like HRW continue to put the pressure on they realize that there is an ongoing political process.  However, they exist to push for a certain agenda and that's probably what we should expect them to do.  It doesn't mean they're out to get Obama, it just means that they have the same agenda that they did last year and the year before.  Frankly, I think it's generally a good agenda.  I also think that they know they're more likely to make progress on that agenda under Obama.  In that sense, there is a rational motivation for them ratcheting up the rhetoric and pressure right now - it's more likely to produce results.  That may seem counter-intuitive, but in a strange way the elevated rhetoric reflects a degree of confidence in actually seeing desired outcomes.

    So, taking complicating factors into account applies all around.

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