This morning's WaPo gives us this analysis of Middle East events. There are some great money lines (I'll give you some in a second), but the premise seems to be that the immaturity and stupidity that thinks that Middle East problems have been intractable for something and therefore "something" has to be done, or even "something different," no matter how shortsighted or irresponsible, has put the United States, and in this case, Israel, in about as isolated and untenable position as they have been in... well, anybody remembers.
One money line calls what will happen in Lebanon now, especially after the carnage in Qana, a "bad case scenario", but the likeliest one. Another is:
[Richard] Haass, the former Bush aide who leads the Council on Foreign Relations, laughed at the president's public optimism. "An opportunity?" Haass said with an incredulous tone. "Lord, spare me. I don't laugh a lot. That's the funniest thing I've heard in a long time. If this is an opportunity, what's Iraq? A once-in-a-lifetime chance?"
In short, the likeliest scenario from the gross Israeli overreaction that we didn't stop in the interest of satisfying moron war-hawks' wet-dreams about having Israel costlessly take out Syria and Iran for us is that Hizbollah will be strengthened in Lebanon and the government weakened, and other Arab states (i.e. our friends) will have to adjust to an even more radicalized populace whose anti-Israel and anti-American feelings are heightened.
Let's just say that the first President Bush would have been a bit more cautious, as he would have felt that all of these machinations... wouldn't be prudent.
Oceania's favorite comedy duo, our beloved President and Airstrip One's regional premier Tony Blair, got together to offer their pathetically inadequate and untimely proposal to handle the current internal crisis raging in Western Eurasia, by proposing an international buffer force in Lebanon.
I've already alluded to our complete loss of an honest broker role, having more or less permitted Israel to open fire, damn the consequences. The problem as noted in numerous posts by Billmon is that Israel's military has fallen pray to the American maladies of becoming bloated on overfunding while fearful of casualties from ground-fighting and hence not as good at it as it once was, while still hubristic in underestimating its opponents. As such, for the first time, it has been Israel who has expressed a willingness for international monitoring and buffer forces... Hizbollah probably is content with the situation on the ground as it is.
Indeed, Israel seems bogged down-- taking heavy casualties on the ground, as Hizbollah uses its superior knowledge of the difficult local terrain to inflict casualties, and lobs its large cache of missiles deeper and deeper into Israel. In short... the mighty First World military is bogged down by (seemingly) Third World guerrillas in the Middle East... Remind you of anyone else?
This should never have been allowed to get this far: Bush should never-- NEVER-- have not scotched, if not outright green-lighted airstrikes on Beirut (and there seems little question that such a decision would have had to be vetted by Washington). The insane and insanely stupid war-hawks here were somehow hoping this would spiral further out of control and Israel would take out Iran for us, all without cost to us!
But this, as usual, misconstrued certain strategic realities on the ground: after a generation of further resentment against the Zionist state and funding, training and proselytizing, Hizbollah has gained in strength; after a generation of improving its middle class lifestyle, while having been free of most existential threats that guided its first decades of existence (Jordan and Egypt having been bought off with American aid money), Israel has softened. Like the United States, it faces the annoyance of terrorism-- yes, civilians can be killed at any given moment-- but life in toto will go on (unlike, say, prior to the Jordan and Egypt buy-offs, when being run into the sea was actually a possibility, just as being vaporized by Soviet ICBMs was for us).
And the results are playing out on the ground. Like the United States, Israel has an overdependence on its air power, which is a uniquely poor device against so-called fourth-generation warfare, to wit, agile guerrillas. And Israel-- like the United States-- dare not ever use its nuclear weapons unless a nuclear weapon has been used against it.
And so here we are. The Blair-Bush Project is only announced nearly three weeks into the fighting, with hundreds already dead and thousands wounded and a humanitarian crisis looming. And their announcement, of course, envisions some simplistic sounding solution, as if that were remotely possible... without compelling Israel to cease fire, the only leverage Bush (and Blair) have.
So, we'll probably have another few days of this; some more people will die, and then the parties will eventually adjust to something resembling status quo ante. And once again, the rocket scientists on "our" side who seem to believe that simplistic labeling of the other side as evil and pummelling civilians with air power and expensive weaponry will solve problems have been proven to be the idiots that they are. And once again, most people will go on voting for those same idiots, because it beats having to think about things.
Yes, shocked I tell you to find that the Arab street has wholeheartedly embraced Hizbollah as the battle between the well-armed militia/terrorist group within Lebanon and the Israeli state continues into its third week.
For its part, Israel has evidently decided against expanding the conflict beyond its current (pretty damned wide) parameters. Hundreds of Lebanese (and dozens of Israelis) have been killed in the fighting, with many times that wounded. It appears that Israel has recognized that it is unlikely to eliminate Hizbollah, with its thousands of rockets and millions (well, over a million, anyway) likely supporters in Lebanon, and the ability to melt in and out of civilian areas where it hides its fighters and weapons; so Israel is settling for "degrading", "disrupting", or perhaps, "annoying" Hizbollah. In short, Israel responded disproportionately, and targeted the Lebanese state writ large, instead of simply trading tit for tat, and keeping this appropriately small... it failed to manage its own expectations, really. It thought it could do military what it can't seem to do politically (or of course, what it previously couldn't do... militarily.) I had believed Israel's escalation to be a mistake; as this progresses, I'm becoming more sure of it.
BTW, out of nowhere, al Qaeda's leadership has also endorsed Hizbollah and its fight against the Zionists, though, of course, Sunni A.Q. may largely be reduced to having to try to get some p.r. in the Arab street, as the Shia Hizbollah seems to be getting all the Arab street creds for itself... for his part, our American President seems oblivious to the whole thing, promising Israel all the time it needs to finish off Hizbollah, apparently unaware that Israel once occupied Southern Lebanon for eighteen years and was no closer to eliminating Hizbollah at that time than now. But there you go.
No, Hizbollah, despite, at this point, being stronger than the Lebanese state it infests, will nonetheless claim that it survived overwhelming odds by surviving the onslaught from the mightly Israeli army and air force, and will, once again, claim victory, which will be proclaimed on the Arab street. And other guerrilla movements (a/k/a "terrorists") will be duly heartened by it.
And any goodwill the United States once claimed in the Middle East when Lebanon and Iraq "got democracy" will be gone. And we'll be pretty much back where we started. Except that a lot of people will be dead or wounded.
Michael Ratner is the president of the Center for Constitutional Rights, a legal advocacy group based in New York City that has spearheaded and coordinated the representation of detainees at Guantanamo Bay, Cuba and been at the forefront of Guantanamo related litigation. C.C.R. has also handled matters pertaining to extraordinary rendition and handled numerous litigations related to the war on terror, and handled its "usual" extensive caseload in the constitutional and civil rights areas in general. Mr. Ratner is the co-author (with Ellen Ray) of "Guantanamo: What the World Should Know." On July 20, 2006, I had the privilege of speaking to Mr. Ratner by telephone. What follows are my interview notes, as corrected by Mr. Ratner.
The Talking Dog: The first question I usually ask is "where were you on September 11th"?
Michael Ratner: I happened to be jogging from my house in Greenwich Village downtown along the path the runs along the Hudson River. I had jogged to where the World Trade Center was (it was then on my left), when I heard a large explosion. I saw flames coming out of the North Tower, and I ran back toward the North Tower. I thought it might be a gas-leak explosion. From that location, you could see the outline of an airplane having crashed into the building. At that time, I had no sense that this was terrorism... it didn't look like terrorism, but a bad accident.
People all around had stopped and were calling people on cell-phones. While still there watching, we saw another plane approaching. At first I thought it was coming to inspect the other tower, or maybe even drop water on it. But then it curved, and went into the building. At that point, I just took off and ran back to the Village... who knew whether we would be under a more general attack?
For the next three weeks-- you know this-- you were in the City-- the City felt funereal. There were signs looking for lost loved ones, people were just walking around incredibly sad. Most people were shell-shocked-- this leads to a recognition of how devastating any bombing or war can be to a socierty-- this is what war and bombings do to a society... you could say this ultimately renewed my sense of pacifism, or at least... thinking in that direction.
The Center for Constitutional Rights is, of course, in downtown Manhattan as well. Within days of September 11th, we were getting phone calls from Muslim families-- their men were disappearing-- picked up by the immigration system. We had some Arabic speakers, and they began trying to look for these people in the system.
And this began the first part of our work in the aftermath of September11th-- the 1,000 or 1,500 Muslims who were picked up shortly after on some of the most minor of immigration violations. And many were heavily abused in INS custody, and are still the subject of pending litigation.
There was a report from Inspector General Fine (overseeing the INS) pretty much confirming what happened. There was anger on the part of guards, and many detainees of the immigration system were heavily abused, Many of these cases have been settled. In other cases, the INS kept people in custody well beyond the time that they would normally hold them for deportation.
This was a symptom of something larger. I believe that in the nervousness that followed September 11th, the attacks were used by the governement as as an opportunity to expand presidential power and to reduce our individual rights. Hence, within 6 weeks of 9-11, we get the PATRIOT act passed, which has enormous implications in terms of, for example, surveillance and wire-tapping and the definition of terrorism and terrorist activities.
On November 13, 2001, the President issued Military Order Number 1. That got the Center for Constitutional Rights deeply involved. It looked like, from that order, Bush wanted to literally take over the country-- he claimed authority to be able to capture and hold any non-citizen indefinitely. Plus, he gave himself the right to try non-citizens by military commissions-- which of course, have just been held unlawful in the Hamdan case . And, of course, he did this not even by legislation-- but by military order. We decided right then and there that C.C.R. would represent those detained or tried; we originally expected the issue to be about the trials, rather than about the detentions.
At that time, we couldn't get that many lawyers to help. No one knew what was involved, or even who we were holding... it was all done in secret. We pulled together a team of lawyers, including Eric Freedman from Hofstra Law School, Joe Margulies from the University of Chicago and Clive Stafford Smith from England... and then we got a call from an Australian lawyer who was representing David HIcks...
The Talking Dog: That would be Steve Kenny?
Michael Ratner: Correct. (I see you know this stuff cold.) Kenny called and we got to represent Hicks, and we got our first client and filed a habeas corpus case.
A short time later, Tom Wilner of Shearman & Sterling in Washington filed a case for a group of twelve Kuwaitis whose families had retained him, and we have coordinated with him. We have had an excellent working relationship with Tom and his associates. Joe and Eric were experts on habeas matters.
With Clive's help, we managed to represent the English detainees-- the Tipton guys-- and then, we coordinated our work with the Kuwaitis as well. The key issue raised originallly was very simple: can we get into the courthouse door in an American court, with our clients in Guantanamo Bay. There was some very, very bad law-- Eisentrager is a terrible case for us. I had previously been involved in litigation over Haitian refugees at Guantanamo; we won at the district court and circuit, but that case was not considered to be of precential value.. Another case on behalf of Cuban refugees lost in the 11th Circuit...
With our cases for the 9/11 Guantanamo detainees, we lost in the District Court and in the Circuit Court.. we got an awful lot of hate mail about our representation of them. And then the Supreme Court took review, and things started to change. At least, for one thing, a lot of lawyers were more favorably disposed to what we were doing, and thought the issues we raised had some merit.
The Talking Dog: By then, of course, the President had designated Jose Padilla-- a U.S. citizen-- as someone he could also lock up and throw away the key-- might that be the reason lawyers were suddenly more interested?>
Michael Ratner: That's actually a very good point. The President's assertion of the commander in chief power looked like it was limited only to foreign nationals (except, of course, to Mr. Hamdi, but he was picked up on the battle field at least). Padilla was a radical extension of extraordinary executive powers to the United States and citizens here.
All of the cases-- Rasul, Hamdi and Padilla ended up being decided together-- they were argued a week apart.
Yet another factor was taking place in the spring of 2004... I remember the argument in Hamdi on April 28, 2004... the Acting Solicitor General Paul Clement was being asked by Justice Ginsberg, "what if there is torture at Guantanamo?" and Clement said "but there isn't... don't worry... trust us!" And then, that very evening, CBS broadcast its story on Abu Ghraib and the pictures of the abuse there.
Of course, the Administration's position was that the judiciary should be kept out completely-- even if there was torture, the judiciary just shouldn't have anything to say about it!
The Talking Dog: Have you personally, been down to meet with your clients at Guantanamo?
Michael Ratner: I haven't even tried. In part, after representing the Haitians down there, and having been there, I knew it would just be too emotionally draining on me. Also, now that I have children, I didn't want to travel so much. So, while I haven't been down there, Gitanji Gutierrez from C.C.R. has been down there a lot. Since Rasul, over 100 attorneys have visited clients down there. Indeed, the Center is coordinating this. We now have lawyers from just about all of the biggest firms in the country doing some kind of Guantanamo work. The bar has really come through on this.
The Talking Dog: Can you tell me the status of the Arar "extraordinary rendition" case? Has an appeal be filed? And what other comment do you have on it?
Michael Ratner: Well, we haven't appealed, because the judge did not totally dismiss the case; one issue remains, that being the mistreatment of Mr. Arar while he was in the government's custody in New York. So, as such, there are jurisdictional issues associated with whether to seek an interlocutory appeal, and we are still looking at those.
Arar was a devastating case for a number of reasons-- not just the result of a dismissal. The judge ostensibly dismissed what amounted to a political question-- that somehow discovery in the case might embarass Canada and our relations with it. But, of course, Canada is doing its own investigation.
But I don't know if you caught this-- the worst part is a 2 page footnote, where the judge discusses torture, and discusses how it is wholly inappropriate to gather evidence that can be used against someone in a criminal case, but then states that it may not be unconstitutional-- it is at least not clearly improper-- in the context of torturing someone to try to thwart terrorist activity... so, that footnote-- that appears to condone torture-- might even be more disheartening than the decision itself.
The Talking Dog: Let me turn to the Hamdan case, and ask this...After the Rasul case, even though the Supreme Court "opened the courthouse door" to detainees, most remain at Guantanamo, apparently with an unclear path ahead of them as to when, if ever, they will be released or even charged with anything. In light of the recent ruling in Hamdan, do you have any comment on whether you believe things will change vis a vis detainee treatment or the ongoing decision to hold detainees, and in particular, I'm concerned with the apparent holding that the Geneva Convention protections apply to the Afghanistan conflict? Or do you believe that the Administration and Pentagon will likely ignore, or evade the court's decision?
Michael Ratner: For our clients, Hamdan effects the issue of humane treatment. Common article 3 of the third Geneva Conventions applies to everyone across the board. So, issues like standing someone in a cell-- what we'll call 'the Rumsfeld techniques" of using dogs, cold water, waterboarding... they are all out the window, period. We did, of course, already have the Army Field Manual, that said that we go beyond common Article 3 in interrogations-- i.e., provide more protections than are required.
Then, of course, the people tried by the commissions will be directly effected by Hamdan.
Unfortunately, there are issues the Supreme Court didn't address, such as the lawfulness of indefinite detention. Previously, in Hamdi, Justice O'Connor used restrictive definitions, supposedly limiting the applicability of the term enemy combattants and the President's authority to the conflict in Afghanistan... But Hamdan did not address the indefinite detention issue outside of Afghanistan and that particular war.
Many of these issues are now before the D.C. Circuit, where constitutional and Geneva rights will be tested...
The Talking Dog: That would be in the Al-Odah cases?
Michael Ratner: Yes, the Al-Odah cases. Now, we're litigating issues of due process there, and those may themselves end up going before the Supreme Court. Of course, the applicability of common Article 3... for matters beyond humane treatment, may not be so great... the Administration argues it means these guys can be held "for the duration of hostilities"... whatever that means... We will argue that they should be subject to applicable civil laws.
The Talking Dog: Do you see an "end game" or "exit strategy" with respect to Guantanamo, and for that matter, to the other detention facilities such as Bagram, Diego Garcia and others, particularly in light of the Geneva Conventions apparently applying to all prisoners from the Afghan conflict (and presumably the war on terror)?
Michael Ratner: The government is in pretty deep trouble with all this; right now, I don't think it sees a way out. Their problem with conventional trials or even court-martials, is that they don't have any usable evidence that isn't illegal or coerced... they've got a problem as far as trying detainees.
And they've got a problem with detention. They're building a more permanent prison at Guantanamo, but are you going to hold everyone forever? Where do you send them? The judge in the Uighur case said the government can't be compelled to admit them in the United States, so what then? In many cases, their home countries would jail them, torture them, or worse... in the case of the Uighurs, the Administration sent them to Albania. So... what if the government can't find other countries to take them?
It's a problem-- both for the government, and especially for our clients.
The Talking Dog: Let me ask you about what I'll call a media or press failure, or perhaps a perception failure on the part of the public. Do you believe that the press and media have adequately discussed the inaccuracies in the "worst of the worst" and "picked up on the battlefield" canards that the Pentagon and the Administration keep reciting, and do you believe Guantanamo and the legal process in the war on terror has been adequately addressed by the press in a meaningful way? What about in the coverage of specific government officials, such as Gonzales becoming attorney general, or others becoming judges, even after writing memos actually advocating the use of torture? Is this part of the media failure, and do you think there is an explanation for it?
Michael Ratner: It is amazing how badly covered all of these things have been. Just amazing. Shortly after September 11th, of course, there was generalized fear. Certainly, the press corps involved with the White House wanted continued access to high officials, they didn't want their press passes revoked... In general, people were frightened. I can only guess as to why things have gone the way they have.
After Hamdan, at least there has been great interest. Even the New York Times finally came out with an editorial pointing out that what the President was trying to do in Hamdan amountts to tyranny... it's not about national security, so much as expansion of power. But certainly, Stevens' opinion has gotten some people's attention-- and concern about whether we are becoming a police state.
To a great extent, there is a failure because of the lack of an independent media-- especially in television and radio... and a great many people get their information from television.
The Talking Dog: Are there any other questions on these subjects that I should have asked you but didn't, or anything else that the public needs to be aware of on these subjects?
Michael Ratner: We won the Hamdan case by 5-4... We avoided tyranny in this country by one vote of the Supreme Court. That is too slim for me. Justice Stevens opinion was dripping with sarcasm. The President says he doesn't have to obey the law, and Supreme Court says that he does. And that proposition passed the muster of the Supreme Court BY ONE VOTE. Democracy is teetering on the edge. Hopefully, we will get through this chapter.
The Talking Dog: Mr. Ratner, I join all my readers in thanking you for your time, and for that informative interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainee Shafiq Rasul , with law professor and former Army J.A.G. officer Jeffrey Addicott, and with law professor and Coast Guard officer Glenn Sulmasy to be of interest.
Commander Glenn Sulmasy is a professor of law at the United States Coast Guard Academy, and has written extensively on matters pertaining to the conduct of the war on terror. On July 6, 2006, I had the privilege of interviewing Professor Sulmasy by telephone. What follows are my interview notes, corrected as appropriate by Professor Sulmasy (who advises that the opinions expressed are solely his own, and do not reflect the views or policies of the United States Dept. of Homeland Security, the United States Coast Guard or the Coast Guard Academy.)
The Talking Dog: I'll start with my usual first question, where were you on September 11th?
Glenn Sulmasy: At that time I was on my way to work in Connecticut after conducting some governmental outreach. I heard that there had been a plane crash at the World Trade Center on WNPR radio, and it took a little while to figure out that it wasn't a gimmick or Don Imus type joke... That was the start of a fascinating day. I have family who lives in Battery Park City [adjacent to the World Trade Center site] and in Manhattan proper.
That day I came to the realization of which I've written a number of times: the sleeping giant had once again been awakened that day: we finally recognized that international terrorism was here to stay and we were prepared, at least then, to fight it with all resources available and with a united front.
The Talking Dog: Has there been a marked difference in the operation or mission of your service, the United States Coast Guard, since September 11th or since the Coast Guard's transfer from the Transportation Department into the Homeland Security Department?
Glenn Sulmasy: There is no question that there has been a change in mission. We have returned to our roots as a coastal defense force. Whether this is serving on a patrol boat in the Persian Gulf, or on a buoy tender off the U.S. coasts or rivers, or any other job in any other location, the members of the Coast Guard, who have so many missions, now know that we have a primary mission of protecting our nation and its homeland. The Coast Guard is a natural fit for the war on terror: we are a hybrid of law enforcement and warfare and have made the transition well.
In fact, in many ways, the Coast Guard has regained her identity. Set up in 1790, the Coast Guard is our oldest seagoing continuous service (the Navy was shut down for a time early on in the Republic.) The Coast Guard had been in the Treasury Department until 1967, and then in the Transportation Department. It was somewhat anomolous to be a military service within the Department of Transportation.
Under the Department of Homeland Security, the Coast Guard has found its home, and I believe is ideally suited for its mission.
The Talking Dog: You've written ( in Pittsburgh Law School's Jurist here and the National Review, here ) about the viability, and indeed, desirability, of what you have called "national security courts" to process, and as necessary, to try charges against those detained pursuant to the war on terror. In light of the Supreme Court's decision of last week in Hamdan, would you submit that this is a good time to try to implement that idea legislatively?
Glenn Sulmasy: This would be the ideal time to work on such legislation. Ironically, while every other branch of government has changed its views of the world in light of the war on terror, Congress and the executive have made substantial changes, for example, to immigration control, the Transportaiton Safety Administration, indeed, the whole Homeland Security Department... the Court's view-- at least as to the propriety of detentions and adjudications... seems more static. We know that the Eisentrager case [standing for "extraterritoriality", to wit, non-U.S. detainees captured by the U.S. overseas and not brought within an American venue are not within American court jurisdiction, at least during wartime] has been effectively reversed by the Hamdi and Rasul cases.
Lawyers need to be at the forefront of proposing rational changes to the existing regime. In my view, the commissions ARE lawful. However, we can't operate under them de facto... the Supreme Court has held that the charges against detainees cannot be adjudicated under the way they're currently constructed. That said, this would be the ideal time to consider something broader-- like national security courts-- so that the jihadists can be properly, and humanely, tried. The war itself is a hybrid of law enforcement and warfare – thus, the national security courts would be similarly constituted.
The Talking Dog: I understand that Senator Spector is working on a bill to simply legislate the commission structure as already formulated by the President... do you have a comment on that?
Glenn Sulmasy: Policy makers must grapple with the reality that this is a new war. We conduct our operations the same way we have in the past -- the wars of the last century. We need to adapt and create new codes to handle this reality. The commission process has not been as effective as one might have originally hoped -- the Supreme Court has told us that the current commission structure in the War on Terror, is now invalid, at least as it currently stands. Again, in my view, commissions are hardly terra incognita-- they are already provided for in Article 21 of the Uniform Code of Military Justice and by the Quirin decision. But nonetheless, the Supreme Court has told us that the commission process, as currently constructed, is not palatable with international law and domestic legislation...they have chartered the executive and legislative branches to "find a new way" to do this. We should exhaust all new ideas and thoughts in the public arena before moving forward.
The Talking Dog: Some of the justices-- at least 4-- found that since the commissions, as structured, can only try violations of the law of war, and that, of the 10 detainees charged, while all are charged with a conspiracy count, seven are charged only with a conspiracy count (rather than with an overt act in support of the conspiracy)... did you see this as a problem with the commissions?
Glenn Sulmasy: You're 100% correct about the conpsiracy charge. That is a problem. But in my view, the Hamdan case is an example of judicial activism – the justices overstepped their bounds by intervening in what is truly the province of the executive in times of war. This is certainly not what the Founders intended for the Supreme Court to be involved in – making decisions impacting military operations. Traditionally, when they have intervened, the Court has employed the military deference doctrine and allowed the commander in chief to exercise his constitutional authority and responsibility. They don't understand the ramifications of their intervention in the courts martial and commission process. Now they have held that the Geneva Conventions apply to everyone involved in the conflict in Afghanistan. Arguably, as a result of Hamdan, Osama bin Laden can now be categorized on the same level as our military personnel-- as if he were another legitimate combatant. While the Supreme Court may have concluded that the executive has gotten too strong, or that the executive has overstepped its bounds, it has abandoned its traditional deference in military matters. Now, one can ask the "is this a war or not?" question... But a decision like this has major impacts on our armed forces. Nonetheless, the Supreme Court has, de facto, told us that this doesn't work, even if it is legal under the laws of war.
The Talking Dog: But under our system of judicial review (not technically in the Constitution, but we've been doing it this way for a long time), the referee's whistle goes to the Supreme Court. How else could this be reconciled? Also, can't you read Hamdan as simply finding that the President has overstepped the powers provided by Article 2 of the Constitution to the Executive by in effect legislating which is reserved to Congress by Article 1 of the Constitution?
Glenn Sulmasy: There's no question that this is all structurally messy, and we are getting into messy issues. Military commissions-- the question of are they illegal-- literally impacts our ability to prosecute the war. This really is, in the relatively new War on Terror, an aspect of combat operations – especially with regard to intelligence collection.
There certainly is a legitimate argument that Hamdan can be read as a separation of powers issue- that we could do the commissions if they are enacted and “blessed” by Congress ... I would suggest that this opportunity to address this issue should be taken up, and something concrete be done (rather than just politically expedient). I would suggest the national security courts, as modeled after similar entities in France and Britain... Saudi Arabia does something similar as well. It will be very difficult to move forward on the proper detention and adjudication of the jihadists until these issues are resolved on a firmer footing.
The Talking Dog: Let me ask you about a suggestion of yours that I've read about, to wit, that the Geneva Conventions will need to be changed in light of the new realities of terrorism. What specific changes to the Geneva Conventions and to American legislation do you envision to permit your proposed "national security courts"?
Glenn Sulmasy: I don't believe the formation of the national security courts is a treaty issue; we will continue to abide by our existing treaty obligations, including the torture conventions and others. I think this issue dovetails, to an extent with our other existing obligations under myriad treaties, but I believe it is something that can be handled by federal legislation. I would envision a bipartisan panel to do this...
As far as Geneva Conventions, a key reason for having them is the rationale of reciprocity-- we treat those captured in accordance with certain rules and those that capture our personnel will abide by the same rules. The jihadists, of course, don't honor reciprocity... to say the least, they don't treat our captured soldiers well... they abuse them, torture them, behead them. Just look at the recent (ironically right after Hamdan was handed down), capture of two of our men in Iraq, they were tortured, beheaded and had their chests carved open – and then had them televised in this state on radical websites…they will NEVER act in accord with Geneva. We must be aware of this when attempting to achieve idealistic goals.
The Talking Dog: Do you believe that the Combatant Status Review Tribunals (CSRTs) we have provided to the Guantanamo detainees (after the Rasul case) qualify as proper "Article 5" tribunals within the meaning of the Geneva Conventions?
Glenn Sulmasy: Article 5, among other things, gives those captured during hostilities a presumptive entitlement to prisoner of war status. In my view, the CSRTs probably achieve the same goals, and in my view, are lawful under the laws of war ("de jure belli"). However, the international community wants us to provide actual “Article 5 hearings.” The CSRTs are our attempt to play catch-up, particularly after the Supreme Court's mandates (Hamdi and Rasul) and the Detainee Treatment Act (DTA).
The Deputy Assistant Secretary of Defense for Detainee Affairs [Charles Stimson] recently announced that the Pentagon is still working on the CSRTs and the proceedings. In my view, the smartest thing they could do would be to call them Article 5 tribunals, so that everyone understands, using a commonly understand parlance, what is happening, and that we are complying with international law. Simply, call them what they are in order to remove cynicism from the world community.
The Talking Dog: Since we're on the subject of Geneva Convention articles, let me ask you about Article 40. I've seen it suggested that we should invoke Article 40, pertaining to how those accused of violations of the laws of war should be tried, in order to effectuate charging those we contend are war criminals. How do you respond to that?
Glenn Sulmasy: The Geneva Conventions were called "quaint" by the attorney general. I think there is a better term-- so I'll say that the conventions are antiquated, or shall we say, outdated to meet the new threat we face. We really do have to update the laws of war. From a public relations standpoint, certainly something like invoking article 40 is a good idea. Again, I would assert Geneva does not apply to the jihadists. But ultimately, to try suspected terrorists, we really should move our legislation towards creating the national security court apparatus I've talked about; France and Britain have programs already set up that we can rely upon as models for this, so that we don't have to start completely from scratch, and reinvent the wheel. There are existing structures in other countries that work.
Policy makers at this point have to look at new ideas. But a national security court will at least force the debate forward. Certainly, partisam politics will continue to present a problem, but we have to move forward. I am excited to report that there has been greater interest- far greater interest since the Hamdan case was decided-- among Congressional staffs regarding these issues and my suggestions. (In fact, in the Congressional hearings last week, the idea of national security courts was raised).
The Talking Dog: Let me ask you a question that I probably should have pressed Jeff Addicott more on in my interview with him. That being the duration question; just who decides when the war is over in this "new" kind of war, given that under the traditional definitions of war, we could hold detainees for the duration of hostilities, but "hostilities" under the murkier "war" we are in now could take decades, or conceivably, forever. Can you comment on that?
Glenn Sulmasy: Well, certainly, to the extent we have people at Guantanamo over 4 years, their ongoing intelligence value, if that is a basis to hold them, is greatly reduced. There is no question that as a matter of custom, we hold people for the duration of hostilities. We have in the past – this is not something new…Winston Churchill, FDR and others have employed this theory. Now, of course, the Defense Department has released a number of detainees from Guantanamo, and is scheduled, at least, to release an additional number shortly.
There is no question that custom says detentions can be for the length of hostilities, and the war on terror could go on a very, very long time. In my view, this issue has to be grappled with at the Defense Department, the Administration and Congress. Could this go on 20, 30 years, during which we hold people indefinitely? Well, this might be permissible under the laws of war, but as a policy matter and public relations matter, it is a problem. In my view, as a default, after a certain amount of time.. 5 years, 7 years.... 8 years... whatever is decided... if a detainee is not charged with anything, he should be released, as a default matter. And those charged, should go to the national security court apparatus.
The Talking Dog: Again, on the subject of the forum for trying accused terrorists, I understand that there is a 2009 round coming up to update and modify the Rome Statute better known as the International Criminal Court. Would that be an appropriate time to advance some of the issues we've been talking about, to deal with what you perceive as shortfalls in the international mechanism to deal with terrorism?
Glenn Sulmasy: There's the big answer to the big question. In 20 years time, or 30, or thereabouts, maybe the International Criminal Court will be the right place to try those accused of international terrorism. Ideally, I'd hope that enough trust and experience develops so that the United States is willing to sign on, and bind itself to those procedures as in ours and everyone else's interests... but we're not there yet. The nation is not ready for such a waiver of sovereignty. In addition, it is likely that in its current form, our enemies would use this international court mechanism against us and our allies.
As I said before, the existing treaties are antiquated, or out of date, when it comes to terrorism... they weren't intended to deal with it. After all, terrorists like the al Qaeda network are not part of any nation-state. So the question is how do we move forward... how do we get from here to there...?
Again, I think this would be a very good time and place to consider national security courts, as an appropriate model. We could do this as part of a treaty, or modifying existing treaties... or by simply creating our legislation. We can go as far as to provide codification for wiretapping and surveillance methods in this context...
But I would add that right now, without blaming anyone, as the Administration acted as it believed appropriate, but, by this point, certainly after Hamdan, our current mechanism of adjudicating terrorists is starting to unravel. Since there appears to be, and the Supreme Court has agreed that is a war, albeit a new one, we'll probably need to update the Geneva Conventions, in any event.
The Talking Dog: Let me ask you another question that I probably should have pressed Jeff Addicott more on in my interview with him. That is the "how do we even know this is a war at all?" question. The reason I ask, is that we are, of course, fighting a non-state actor... which makes this very different from most wars as we understand them. Can something this different be "war" for purposes of law?
Glenn Sulmasy: In my view, we have to regard this as a war. Since 1993, when the first attack was made on the World Trade Center, al Qaeda was and has been at war with the United States. We may not have been conscious of it, but subsequent events, like the embassy bombings, and the attack on the U.S.S. Cole, and others show us that it is indeed a war. It is a different kind of war, but nonetheless, a war.
On September 11th, everyone saw this as an armed attack on the United States. As a result of that, there was a change in the mentality... I think it became much clearer to all that this is, indeed a war, and we have to fight it as such.
Part of the mentality, and the jihadist doctrine, calls for using our own court system against us, as Moussaoui has done. The mentality we are up against in this war is nothing less than the destruction of Western civilization, and yes, it is necessary for us to fight keeping the mentality that this is, indeed, an armed conflict. To do otherwise is exactly what the jihadists are counting on and took advantage of during the 1990’s.
The Talking Dog: You've suggested that people like Moussaoui, or for that matter, Richard Reid, might be good candidates for your national security courts. They, of course, are not citizens, or even legal residents. I take it that your national security courts would be for such people only, and not for citizens?
Glenn Sulmasy: No question it would just be for non-citizens, and we could do it by statute. There are far too many constitutional issues that would be involved in trying citizens in the national security courts.
The Talking Dog: Do you have any final thoughts, or issues that I haven't asked you about which you believe that my readers and the public need to be aware?
Glenn Sulmasy: Again, I will say that September 11th awoke a sleeping giant. But we can't go back to sleep. At times I fear we have “dozed off.” The Department of Homeland Security and Congress have been managing expectations, and we fortunately haven't been struck directly since September 11th, but they will strike again.
September 11th took ten years of planning. We have to be conscious of this. They are coming at us. It might be easy to sit back and opine, but the scary reality of another attack is in fact going to occur – it is just a matter of when and what weapons they will employ. Recent arrests reveal this cold fact. Taking the fight to the jihadists overseas, as well as the USA PATRIOT Act, has helped ensure our safety. In the wars in Afghanistan and then Iraq, we took the fight to the terrorists, and as a result, we are keeping the homeland secure.
One final note, the majority of the Supreme Court opined that Article 3 common to the Geneva Conventions should apply to the Global War on Terror. This is not legally accurate, nor is it in our interest to do this. Article 3 refers to non-international armed conflicts. This is, as is noted in Asia, Africa, the Middle East, London, Spain, and others locations, an international armed conflict. Having said this, we still should afford the spirit of Common Article 3– that is, all detainees will be treated humanely. But the strict reading of the Convention shows that this is not applicable. Again, let us devise a new Convention to best meet the needs of the international war we now face.
The Talking Dog: On behalf of myself and my readers, I'd like to thank Professor Sulmasy for that informative interview.
Readers interested in legal issues and related matters associated with the "war on terror" may also find talking dog blog interviews with attorneys Thomas Wilner, Jonathan Hafetz, Joshua Denbeaux,
Neal Katyal, Joshua Colangelo Bryan, Baher Azmy, and Joshua Dratel (representing Guantanamo detainees and others held in "the war on terror"), with attorneys Donna Newman and Andrew Patel (representing "unlawful combatant" Jose Padilila), with Dr. David Nicholl, who spearheaded an effort among international physicians protesting force-feeding of detainees at Guantanamo Bay, with law professor and former Clinton Administration Ambassador-at-large for war crimes matters David Scheffer, with former Guantanamo detainee Shafiq Rasul , and with law professor and former Army J.A.G. officer Jeffrey Addicott to be of interest.
The Grey Lady gives us this discussion of a request by Israel for accelerated delivery of precision guided munitions for use in its attacks on Lebanon, a request that has been duly honored by the United States. It comes in conjunction with a clear screwing around by Secretary of State Incompetentalleezza Rice, who asks the musical question "what's the point of shuttle diplomacy now?"
One might suggest that the point might be to, oh, stop the killing, which has resulted in hundreds of Lebanese and dozens of Israelis killed, and large parts of Lebanon (and smaller parts of Israel) laid waste.
But something broader is going on. While it is universally understood that Israel is our principal client and ally, by the broad definitions of honest in the Middle East, we were (at least before 9-11 changed everything, I suppose) able to play the "honest broker" role on occasion because so many Middle Eastern governments had close ties to us (Jordan, Egypt, Saudi and the smaller Gulf States, for example). It is unclear to me, however, what effect supplying Israel with arms in the middle of what is being seen more and more as a wildly disproportionate counter-strike against mostly innocent Lebanese civilians and the occasional Hizbollah fighter will accomplish.
And that's just it... what is this going to accomplish? Hizbollah is probably the best-armed, best organized non-state militia/terrorist group in the world. It is everything we pretend al Qaeda is: it is ruthless, it is effective, it is well-armed, it is disciplined, it is organized, it has infiltrated legitimate operations (like the larger Lebanese government), it has popular support in some quarters... and it's not easily dismantled, certainly not by push-button air-shows... Hizbollah has managed not merely to displace Israel from Lebanon, but the United States as well... it is somewhat chilling to see American Marines returning to Beirut over 20 years later...
Which is why Israel's stated goal has gone from removing and destroying Hizbollah to degrading it, and now, to annoying it. While destroying Lebanon just in time for tourist season may radicalize Lebanese against Israel who weren't previously radicalized, its not going to get the anemic and barely functioning Lebanese government to take out Hizbollah, something that Israel-- acting as proxy for the United States-- can't do.
So, at this point, I'm going back to my original assessment that the choice to start attacking things outside of Hizbollah's strongholds in the Bakaa Valley and Southern Lebanon was a mistake necessitated by concerns of panic over Hamas having just kidnapped a soldier in Gaza and domestic Israeli political necessity to "do something." Fortunately, it looks like "doing something" does not mean a broader, insanely bloodier war formally drawing in Syria and Iran, the latter of which would probably draw in the United States.
Somebody can act intelligently now; the Israeli soldiers can be safely returned, say, to the Jordanian or Egyptian embassy in Lebanon, with an understanding that Israel will cease its attack at once, and Hizbollah will cease its attack at once. The broader goal of removing Hizbollah from southern Lebanon is just not going to happen; if years of Israeli occupation couldn't do it, a few days of air bombardment isn't going to do it (even if thousands of Israeli reservists have been mobilized for the task).
More lives might be spared, of course, if the United States were any longer capable of an honest broker role, or even tried. No one else is really capable of it, because Israel (rightly) trusts no one else... Alas, the precision weapons will doubtless arrive, hit their marks, people will die, and hopefully at some point, reason will return somewhere.
It seems that Republican senators who wanted to reorganize the
propaganda show trials military tribunals against Guantanamo detainees along lines similar to that already provided by the Uniform Code of Military Justice have received... "mixed signals" from the Bush Administration... which, surprise, surprise, wants Congress instead to rubber stamp the existing kangaroo court military commission structure, which has already been ruled unlawful in the Hamdan case.
As Bruce the Veep notes in forwarding this, given that Arlen Spector (Senate Judiciary Committee Chairman) has been as reliable a poodle to the President as Tony Blair has, brazenly looking the other way no matter how egregious the executive abuse, there seems little reason that the President won't get what he wants on this.
Here's hoping that Justices Stevens, Breyer, Ginsberg, Souter and Kennedy can hold on long enough to hear the next round of cases, stemming from this latest effort at judicial travesty. Somewhere in all of this, it seems forgotten that we the people will actually be safer if can ascertain that those accused of terrorist acts or war crimes are actually guilty... the court-martial system has, over time, proven a generally reliable means of doing that. But that's not really the issue, is it? Far too many have been acquitted under that system, which means that the Bush Administration and Pentagon would look bad having, you know, picked up the wrong people.
And we can't have that. In an election year, no less.
In this case, it appears to be the first time that this President will exercise his veto over an Act of Congress, in this case, a bill which would have expanded the category of stem cell research to which federal funding could attach. It's an interesting choice for the first veto after 5 1/2 years in office, but then... why bother with the veto when one can just issue signing statements that smack outright of the intent to thumb one's nose at the people and their elected representatives in Congress by ignoring the jack-jive laws they pass that are found inconvenient? Particularly when the people and their elected representatives won't hold the President to account, say, by impeachment, or, quite frankly, by any sanction whatsoever.
And thus we have arrived at this point. Federal spending, and hence, the federal deficit, is out of control because of, among other things, the tacit deal that if Congress gave the President what he wanted on his pet spending projects (Iraq and tax cuts)... Btw, a tax cut is exactly the same legally and economically as if a subsidy check were cut written against the federal treasury directly to the beneficiary; somehow, politically it's different to Americans, mostly because Americans just aren't very bright, and are easily persuaded of the veracity of untruths simply by hearing them a lot.
But I digress... anyway, Bush gets his pet projects, and the GOP Congress members get all of their pet projects, without any Presidential oversight. It's a mutually insane positive feedback loop... insane if you expect this country to be in business, say, five minutes after the President leaves office that is. Otherwise it makes perfect sense.
Anyway, given the sweet back and forth relationship between the President and the Congress of the same party that his now not-to-be-indicted deputy chief of staff has been so helpful in keeping in office, it should come as no surprise that there has been a veto-less love-fest. Alas, the love-fest is about to end, over the issue of stem-cell research.
I must say, there was a time... back before 9-11 changed everything... when I was a bit more sympathetic to the arguments of slippery slopes and nightmare scenarios, such as, say, poor Third World mothers deliberately selling their late-term fetuses for First World medical experiments for the benefit of our elderly, and the possibility of cloning humans, to consider whether perhaps we were moving too fast in the direction of a Brave New World.. But that, of course, is not what is proposed... what is proposed is use of embryos, specifically blastocysts, or cell clusters, from fertility clinics where such cell clusters, which, absent implantation in a host mother, can never, ever form into human beings, were scheduled to be discarded and destroyed regardless.
And so, there we have it. So I have made my own quick moral calculation: if George W. Bush opposes it, it is probably not only a good thing, but the probable definition of virtue itself. Seriously. That in this case, he also choses to buck many, if not, most, members of his own party to satisfy the superstitions and prejudices of his religious base only helps clinch it, but in the end, there we are: the choice is the advance of a promising new medical technology that might help people such as those in conditions similar to the late Ronald Reagan and Christopher Reeve before their deaths, or catering to the "moral values" of a group that finds no moral problem torturing people for our supposed security, denying tens of millions of people an improved life-style through a minimum wage increase or providing a mechanism for them to have health care, etc., etc.
In short, while I understand the moral implications of the other side of this issue, George W. Bush has finally persuaded me of the rightness of the position of increasing funding for stem cell research simply because he opposes it. And everyone should understand that he is vetoing this bill because he has the votes in his own party's House caucus to sustain it, and for no other reason. So, if you like this country to not pursue potentially life-saving technology at minimal moral cost to make James Dobson and Pat Robertson happy, then by God, keep voting for the President's party.
The Grey Lady treats us to a discussion of the political plight of Joe Lieberman, who seems... a tad down in the dumps... and in the polls.
Frankly, I have considered, and still consider the Connecticut intra-mural urinating contest among Democrats to be hopelessly counterproductive: lots of money, energy and volunteer time is going to multi-millionaire Ned Lamont, who is perfectly capable of paying for this kind of run on his own, but isn't (paying for things yourself is inconsistent with becoming a multi-millionaire, of course). This money, energy and volunteer time, of course, is not going to House candidates who might unseat Republican incumbents (three of whom are in Connecticut), or of course, to other Democratic Senate candidates in other states who... might unseat Republican incumbents. My view, for the umpteenth time: this pissing contest is a luxury we can't afford. Those helping to fuel the pissing contest are hurting us. Not that anyone will heed this humble blog on this point, or just about any other point.
That said, let me say that poetic justice would involve Lieberman either cleaning Lamont's clock in the primary (possible, but not how you bet) or in the general election (much, much more likely) as the candidate of "the Lieberman Party"... and then joining the Republican caucus! Not how you bet either, of course; Lieberman tells us he intends to stay a Democrat.
But what he's really told us is that he's a prick: the likelihood isn't that refusing to step aside if he can't win the primary puts Connecticut in likely play for the Republicans. It doesn't; if Lamont wins the primary and Lieberman goes away, Lamont would almost certainly win the general election. Lieberman's recalcitrance does, however, put the rest of the country in play, as critical resources are going to go to "hold" Connecticut one way or another that could be crucial in helping in close House or Senate races where pickups are possible. In a way, it's almost a scenario Karl Rove dreamed up.
But Joe doesn't care. It's always about him. Ironically, by voting record, he really is a solidly middle of the road Democrat-- even on the war. He's obviously done stupid things image-wise (see above). But mostly... he's a prick, who cares more about holding his own damned seat than the wishes of his own state's own primary voters... or of course, the fortunes of his own party's national position.
Love and kisses to you, Joe.
The Grey Lady gives us this comprehensive round-up of what seems to be going on in the Israeli part of the Middle East. At the moment, things are "calm", insofar as the pattern of Hizbollah lobbing rockets at Northern Israel and Israel launching air strikes all over Lebanon with an emphasis on Hizbollah targets continues. Israeli spokesmen indicate that Israel has some kind of "plan" that will take "a few more days". Since I don't know what that is, we'll just have to wait.
I'm still trying to figure out what brought all this about. Somebody appears to have miscalculated something, and I'm still guessing who it was. For a broader analysis that sheds some light, we give you Professor Cole's takes here and here, basically noting, inter alia, that the Saudis of all people have condemned (Shia) Hizbollah's "adventurism", and Israel is (as usual) overreacting in a self-defeating ham-handed way that will just solidify the already staggering opposition to it, but more notably, Israel is bombing the Lebanese economy up north and not the Katyusha rocket launch sites hitting its own people down in the south.
Do you have all that? Here's what I think is going on: Hamas, which has shown frequent rashness and incompetence, acted rashly and incompetetently in its little adventure on the Gaza border, killing and kidnapping Israeli soldiers. Hamas has no cover anymore: it is the Palestinian government. Actions like that will rightly be considered acts of war, whether the leader is the wizened and battle-tested Ariel Sharon, or the relatively green newcomer Ehud Olmert. By winning the Palestinian elections, Hamas failed to realize that it has less option to act as the cold-blooded terrorist group that it, of course, is, because it presents nice, juicy targets for Israeli retaliation should it so behave.
Hizbollah, of course, has less of a problem so behaving, because it is not the Lebanese state, though it is a member party of the governing coalition, and the best armed force in Lebanon (probably better armed than the Lebanese state itself, c/o its quite open Syrian and Iranian support). Ironically, Syrian forces in Lebanon were a counter-weight, and kept Hizbollah somewhat better behaved! OTOH, given how Israel reacted to the soldier being kidnapped in Gaza, doing exactly the same thing the very same week should have been perceived as drawing a similar reaction. OTOH, Hizbollah is a lot smarter and more effective than its fellow Iranian/Syrian surrogate terrorist group Hamas... it has not, historically, made gross miscalculations... which makes me wonder if, in fact, it made one now.
I suspect that what we are seeing is a test of "democracy". Certainly, the non-sensical fantasy that simply expanding the vote in the Arab world, in no other context, will magically make its problems disappeared has proved a sham. Iraqis elected religious Shia extremists with close ties to Iran; Lebanese elected Hizbollah (not outright, but with a big enough presence to sit in the government); Palestinians elected Hamas. And here we are. But, let's face it: terrorists like to test newly democratically elected leaders. Even the Islamists who attacked New York City did so early in the Clinton Administration (the first WTC bombing was just weeks after Clinton took office) or the Bush Administration (9/11 took place less than 8 months into Bush's term).
And so we are early in the Olmert era. While Hamas might, Hizbollah certainly would not have bear-baited Sharon... the reaction would have been just too predictable, and Sharon, while he has a reputation for nastiness (especially in Lebanon), also has a reputation for effectiveness. But Olmert? Who knows? The thought was to see what Olmert would do, and now we know: escalate. Now, one might think that in a democratic country such as Israel, given how vehemently (and dare I say it, emotionally, Israel reacts to attacks on its soldiers as opposed to its civilians-- the complete opposite of how, say, we would react)... it wouldn't be hard to see this reaction coming.
And there's the rub. Is that what Hizbollah intended? Was it hoping that Israel would take the mickey and blow up Lebanon writ large, so that Hizbollah could draw a broader pool of support against Israel than its usual Shia constituency in the south of Lebanon (rather than take on more obviously "Hizbollah" as opposed to "Lebanese" targets)? If that is their game, then they have already won it, and now its just a matter of playing out the hand in an already decided game...
Of course, if this was just a ready excuse for Israel to mobilize in preparation for an assault on Syria and/or Iran... well, stand-by. I'm coming to the conclusion, however, that it is probably not... This was driven by perceived Israeli domestic political necessity... and maybe some cooler heads from Cairo, Amman and even Riyadh can intervene and calm this down before it does...
Is starting to look suspiciously like... the old face of the Middle East.
In a new development with respect to Iran and its recalcitrance to comply with various demands concerning its nuclear program, Russia and China agreed to get out of the way of a referral of Iran's non-compliance to the U.N. Security Council. In part, this relates to this weekend's G-8 summit in St. Petersburg, Russia, and in part, to the fact that the U.N. action will certainly not include any military action, but only the possibility of economic sanctions, or some kind of carrot and stick approach.
Which may not be nearly enough, if we are to believe this from the New Republic's Yossi Halevi (registration required for the full article) suggesting that Israel may well take it upon itself to attack Iran rather than permit Iran to acquire nuclear weapons, with the implication of doing so "sooner rather than later."
Of course, Israel already has its hands full, what with its ongoing assault on Gaza in retaliation for/an attempt to achieve the release of one kidnapped soldier there (today, bombing the Palestinian Authority's Foreign Ministry building there), and its plate seems to be full in the North, with Hizbollah having attacked Israel over the Lebanese border, killing a number of soldiers, and kidnapping two others, which drew an Israeli response of troop and tank movements and aerial assaults on power stations, bridges and roads in Southern Lebanon. Israel blamed the Lebanese government, of which Hizbollah is a participating political party, as well as Syria and Iran, which are believed (by everyone) to support Hizbollah, if not control it. For its part, Hizbollah purports to be trying to set up a prisoner exchange, which Israel promptly rejected. The week could find Israel back in both Gaza and Southern Lebanon... what's old is (deep sigh) new again?
And in Baghdad... people are leaving by the thousands to escape the escalating sectarian violence, which neither the nascent Iraqi government, nor the American forces present, seems to be able to control to anyone's satisfaction.
I guess once again it would appear that this sure looks like I picked a bad week to give up sniffing glue.
As the world is reminded with a horrible series of train explosions in Mumbai, India that left over 170 people dead, that the horrors that can be imposed by terrorism are very real... the Bush Administration re-thinks two of its most prized strategies for the unitary executive's dealing with its war on terror, specifically, by announcing that all detainees in American custody are now subject to Geneva Convention common article 3 protections (as the Supreme Court intimated in Hamdan), and, even more ominously (and now that most of the easy money has been earned), the Army has announced its terminating its super-sweetheart sole supply deal with Halliburton.
These events really defy further comment.
Do these signs mean that the Bush Administration has finally woken up to some level of accountability? Let's just say that while we can hope so... that's not how you bet. Look for these measures to be short-term, public relations oriented gimmick announcements, with the actual (more sinister) policies to come in a much quieter way, perhaps with "national security" loopholes that one could fly a C-130 through.
THAT is how you bet.
Well, after the recent Hamdan case appeared to strengthen the doctrine of separation of powers, blasting the Bush Administration for deigning fit to legislate in the area of establishing military tribunals that did not conform to regular military procedure (i.e. courts martial) as the Court found was required by United States ratification of the third Geneva Convention of 1949... we have a lower court, federal district judge Thomas Hogan in Washington, D.C. who upheld the execution of a search warrant upon the offices of accused Congressional criminal William Jefferson, finding, in a rebuff to a bipartisan group of Congressmen including the Republican Speaker, that the Constitutional protection of Congressional debate was not a license to turn Congressional offices into dens of crime, not to mention affording Congress members more rights and privileges than enjoyed by the general citizenry in the area of license to commit crimes, anyway. Jefferson was subject of an FBI sting operation, and $90,000 in cash bribe money was found in his freezer at home (Jesus, Congressman, what part of the words "girlfriend's backyard" don't you understand?)
These congressmen have two options, I suppose. One is that they could probably provide for immunity for themselves by statute. Congress exempts itself from the application of all sorts of laws this way, so why not... all laws, while they're at it. The other is that they could take violent revenge against the President whose Justice Department went after one of their own (conveniently a Democrat, of course, but just think of the words "President Hillary Clinton" to realize the overarching principle at stake here), that is violent revenge as permitted by the Constitution, to wit, Articles of Impeachment. Yes, yes, I know... not bloody likely... but it gives me an excuse to share with you this amusing product, Peach Mint Tea (thanks to Andrew of some college in Haverford, PA for the heads up), and part of the profits (if any) will go to some PAC devoted to impeachment.
Not that I'm endorsing impeachment, of course. Not that I'm not endorsing it either. And not that I'm not not endorsing it. But, you know, perhaps the principle of the same President who persistently thumbs his nose at Congress with signing statements promising not to follow and execute the laws Congress passed and he didn't veto, and, in a breach of inter-branch comity (if, of no law, as held by Judge Hogan), sics the FBI on a member of the Congressional insiders (even if an African American Democrat... but the principle still applies...), maybe the members of the House will see the virtues in considering impeachment... or at least, in trying that refreshing tea.
It's probably good to the last drop. Or something.
Italy defeats France to win the soccer World Cup, 5-3 on post-overtime penalty kicks.
And thus, Italy, which has some kind of soccer scandal going on back home, can put it aside for awhile with raucous celebration in a sport... about which we stateside care pretty much... nil. As in 1-nil, what announcers insist on calling a 1-0 game... of football... on the pitch... and other stupid terms favored by soccer snobs.
Look: the Loquacious Pup plays the game (or a version designed for six year olds, anyway), coached by me... and we did well this year (thanks to our ringers!) losing only in our last match to a team that was actually good (and that largely through a coaching mistake of my own.)
Which is to say that even though soccer is probably the most widely played sport in this country, it will never, EVER catch on as a spectator sport here. And the finale of the World Cup proves exactly why.
The difference between our actual national game football (the game as played here) and soccer (the game that just completed its World Cup), or between soccer and our official national sport, baseball, is context and arbitrariness. Basketball features the same arbitrariness, btw, but the scoring is so rapid fire that who can complain? Hockey... suffers from the same problems as soccer in its arbitrariness... which explains why it lags the other three sports in interest here.
Case in point: baseball is entirely context: every pitch sets up the next pitch; a man on and two out in a tie game is different than with a 2 run lead, etc., etc. Context. Football (not soccer) involves field position, and set plays based on... context. Unlike baseball, where only the batting team can score, football does have the possibility of "arbitrary" scoring with the interception or fumble recovery... but again, the location of these events is part of the context.
In soccer, two teams can play their hearts out for 89 minutes, only to have a stupid pass or an absurd bounce get past a goalkeeper... but that's not bad enough.
We can watch the two greatest teams in the world play a masterful, exciting bout for two solid hours (including overtime) only to decide it all on penalty kicks, a method as unsatisfying and arbitrary as rock, paper, scissors. Yes, it would be tedious to keep playing until someone scores in regular play, but then, removing players from each side every few minutes to open things up might help that... or how about keep playing until somebody wins, however long it takes?
And that's just it. We may live our lives in an arbitrary, unfair, unsatisfying way... but we'll be damned if we take our sports that way.
Not content to blame "asymmetric warfare" for the detainee suicides at the American detention facility at Guantanamo Bay, Cuba, the Pentagon has now figured out that the detainees who killed themselves last month probably passed notes using papers marked "attorney-client privilege" ordinarily used to communicate with their lawyers. As a result of this, naturally, the Pentagon has said that the practice of permitting such communications between detainees and their attorneys in writing will now be suspended. The government is seeking a court order to permit at least some form of interception of these attorney-client notes.
As the WaPo piece notes, detainees' attorneys have said that the prisoners were closely monitored and there were supposed to be procedures in place to prevent the detainees from using such papers to communicate with each other. These procedures apparently didn't work.
And so here we are. Had the government not intended to set up a facility on an American base that it nonetheless claimed was beyond the reach of our courts, had these detainees been provided Geneva Convention rights of being "presumptively" prisoners of war until it could be determined that they really were the worst of the worst (instead of the opposite)... they wouldn't have lawyers in the first place. They wouldn't need lawyers, other than for those who would be formally charged with something (i.e. around 2% of those at Guantanamo). Because they would be "prisoners of war." No reason for lawyers in that circumstance.
But instead, the Bush Administration, for its own reasons, decided to have it both ways: it's a war for purposes of holding people for the duration of hostilities (up to and including forever), but suddenly it's not a war for purposes of providing detainees' rights such as P.O.W. status (query whether the Hamdan ruling changes this result, and forces all of those detained from the Afghan conflict to be presumptively prisoners of war... I would submit the decision could be read both ways on that; we may need yet further court guidance on this point.)
And there we are. The President could have gone to Congress way back in 2001 or 2002 when he had massive bipartisan support and gotten the appropriate legislation to modify the domestic legal effect of our Geneva Convention treaty ratification, including an appropriate framework for legal tribunals... but the President and those advising him believed that the principle of Presidential Infallibility and expansion of executive power were more important than any salutory results in advancing our prosecution of the war against al Qaeda that might be achieved from trying to obtain legal authority "the usual way". It is unclear what ultimate effect this executive hubris will have on the prosecution of military actions going forward... Some might criticize the High Court for tying the President's hands in prosecuting military action... but let's be clear: the President put the Court in the position of having to try to balance the need to prosecute military action and the rest of our Constitution. The President alone.
So... at Gitmo... just as the first reaction was to blame the victims of a 4 1/2 year campaign of dehumanization for finally succeeding at the one aspect of freedom they had left to them, i.e., the freedom to take their own lives in stealth (even refusing to take food resulted in force-feeding), the next logical reaction is to try to cast some blame on the heroic men and women who have signed on to try to provide legal representation to (at least to most Americans) some of the most publicly despised men in the world.
On this first anniversary of the terrorist strikes in London, we here in New York can go back to panic, even as an apparent attack on our PATH commuter rail tunnels (leading in to the WTC) was thwarted. The plan involved an attempt to flood lower Manhattan.
The good news: the plot was thwarted. The bad news: the plot was thwarted by law enforcement, and apparently, federal, state and local law enforcement acting within the scope of the Constitution, rather than by "robust" military action and foreign policy and national security apparatuses using extraordinary powers.
Well, there's always next time...
Oh my God! They killed Kenny! YOU BASTARDS!
Kenneth "Kenny Boy" Lay died today at 64, in Aspen, Colorado, of an apparent massive coronary. Lay, the founder of former energy giant Enron, was, of course, sentenced for fraud and related crimes surrounding the massive collapse of Enron, and would have likely been sentenced to at least 25 years in prison, or an effective life sentence in any event. Lay, of course, will not serve that sentence.
Query whether the thousands upon thousands of people who watched their jobs disappear, pensions or stock portfolios evaporate, or who were, for example, grossly overcharged for electricity, so that Kenny Boy and a few other select insiders could buy yachts and numerous vacation homes (note the location of Mr. Lay's death) and other big-ticket items while laughing as they cooked Enron's books... will get any satisfaction from this. (OTOH, someone I can think of can breathe a sigh of relief about not having to wonder about whether he should issue a very, very suspicious pardon to an old friend, roughly 30 months from now...)
In an interesting coincidence, on the same day of Lay's death (and likely exacerbated by the next item), oil closed at a record level, above $75/bbl.
Fred Kaplan, writing in Slate, gives us this piece suggesting that the North Korean missile test, particularly the failure of the Taepodong 2 longer range ballistic missile to last more than 35 seconds from launch, opens up a major diplomatic opportunity toward North Korea, given that Dear Leader's regime should be chastened, in the face of a very public failure... this would be harder, of course, if the missile had, oh, come anywhere near American air space (or managed to escape North Korean air space).
Finally, Atlantic City's casinos have to shut down, because New Jersey... is apparently out of business.
Well, hope springs eternal. Maybe tomorrow will be more interesting.
Not much blogging by me anticipated during this putative four day weekend, so... go do something else!!! Or check out the good stuff going on with the blogs on the sidebar. Or whatever.
You might want to consider the interviews with those knowledgable with issues associated with the law associated with the "war on terror", and particularly, of course, my most recent with Jeff Addicott immediately below. Consider the most fundamental question of all, which overrides all others, as so ably expressed by Professor Addicott: are we, in fact, at war? Indeed, can we be at something called "a war" for purposes of the law when our enemy is not, in fact, a "nation-state"?
You might also consider if the gentlemen in the powdered wigs in the picture above anticipated where we would be right now. Would they have accepted the explanations given, and the rationale for them that we have been given?
Regardless of what else you can say, I'm glad we still live in a country where these questions can still be asked (as can questions about the actions and motivations of those entrusted with our governance).
Even if far, far too many, including too many in our ruling party, don't seem to be so glad of it.