[by John McDermott]
OBAMA PLUS AND MINUS # 3:
THE WAR ON TERROR --
CAN IT BE WON?
CONSTITUTIONALLY???
TWO PROPOSALS
About 2 months ago I sent out OBAMA PLUS AND MINUS: # 2, WAR ON
TERROR. In a sense I needn’t have bothered. On Tuesday, May 29 The
New York Times published a very thorough, front-page piece which
documented and extended the main points I had been trying to make. The
Times piece is invaluable, its authors, researchers and editors should
really be commended.
KILLING TERRORISTS AND WOUNDING THE CONSTITUTION
The Times piece reports that the President personally goes over what
is called a “kill list” to decide which alleged terrorists are to be
missile-ed away next. It is said that the pros and cons of killing
this or that person are relentlessly and honestly debated by a group
of officials, that the lawyerly President troubles himself over the
requirements imposed by the olden Christian philosophers for a ‘just
war’, and that all are determined not to trample on Constitutional
principle. That’s undoubtedly a more rosy account than a strictly true
one – but I’m not prepared to argue the case for official sophistry,
reckless criminality, and Constitutional Nullification either –
although that is what the literal facts of the case do add up to. For
the moment, we should accept that “they” are doing what “they” think
is the best “they” can do against what seems a truly unique and
implacable foe.
My point is that there are more useful responses than editorializing
and moralizing. But sophistry, criminality and Nullification shouldn’t
be fully ignored nor entirely forgotten either.
The piece further confirms the two central points of my own offering
and it is those I want to analyze here – and in the process to propose
an alternate policy and strategy that might actually win a war against
terror, and to do it within instead of outside the Constitution. The
points that I will take up in order are, first, that the beginning and
end of our entire strategy in that dubious war is simply to
‘exterminate the brutes’ even though it is becoming clearer,
particularly so in Yemen, that for every ‘brute’ we exterminate at
least one further friend, relative, out-raged passer-by or
co-religionist takes his or her place. This is no trivial point. We
and others have been in one form or another fighting a war on
terrorism since at least 1968. It seems practically certain that the
terrorism side of the war is at least self-sustaining where not – as
apparently now in Yemen – self-expanding.
The basic strategic notion the President is working from is that
“terror” is ultimately a form of criminal behavior, period. Thus,
kill, arrest, or crush the morale of every last terrorist and the war
will be won! Even on the face of it, that’s not a particularly
convincing strategy. It is also one that has required a national
security mobilization apparently greater than that for the Vietnam War
and against what are only large handfuls of foes. I think we can
fashion a better strategy.
The second point of my earlier piece was that talk of ‘balancing
security with Constitutionality’ is just so much eyewash. We have to
face the fact that the Constitution is really being wounded in the War
on Terror. I would even be willing to admit, ‘necessarily being
wounded’ but we do a disservice to our country when we allow that
‘necessarily’ to erase from our minds the reality, the extent and the
depth of the Constitutional wounds. The plain of it is that really
consequential things such as habeas corpus, due process, privacy,
restraint of executive powers are now being violated. And not as
occasional exceptions but as normal policy. Something like the same
thing is true with respect to many of our treaty obligations and to
multiple international legal standards as well. To most effects and
purposes the President and his aides have gone Constitutionally rogue
and internationally criminal and it is neither defense nor mitigation
of that to add that both the Congress and the courts, especially a
constitutionally-flabby Supreme Court, lend at least tacit support.
I’ve just put the case moralistically. Accuracy demands that we
underline issues of immorality, illegality and un-Constitutionality.
That’s the conundrum. Strict accuracy demands that we moralize. But
the very same accuracy is necessary if we are to go beyond just
moralizing-- as we must.
Enough preliminary. First question: is there a non-utopian way to
bring the essential facts and conditions of the War on Terror under
and within sustainable, pacific international legal practices.
Immediately following these institutional proposals, I will also offer
proposals on the other big issue, the Constitutional matters.
A RAG-TAG INTERNATIONAL “ORDER”
I think the following makes as much sense as it is possible to make
when we try to get at the underlying political/institutional
conditions which generate most of the groups and the tactics of
contemporary international terrorism.
Throughout the world there now exist non-governmental organizations
such as Al Qaeda, the Taliban, Hamas, the Tamil ‘Tigers’, and the
Moslem Brotherhood, yesterday’s the Irish Republican Army and Al
Fatah, which exert government-like sway over large populations. Some,
like Hamas and the Taliban, actually govern territories in which they
assume most of the conventional functions of a regular government.
Some, like Al Qaeda are more or less ‘underground’ but here and there
they too assume some of the key functions of conventional government.
In short we now have numerous cases where non-government organizations
have won the kind and degree of political loyalty and political
obedience that we normally associate with a ‘legitimate’ recognized
government. The ‘terrorism problem’ consists of the fact that the kind
and degree of political loyalty/obedience they have achieved is
sufficient to form, maintain and operate a significant military arm.
The key here is to recognize this reality: there are quasi-governments
which have won and hold government-like sway over their respective
populations and in their name wage war on rival, ‘legitimate’
governments.
One should note, by the way, that which gang now happens to be the
‘legitimate’ government, and which other gang is the ‘illegitimate’
terrorist organization is too often a matter of pure historical
accident. Unfortunately, it is rare now for either to be
distinguishable by its ‘better’ or ‘more civilized’ behavior.
At any event, “terrorism” is the recognized international name for
the war-like operations these quasi-governments carry out against
those ‘legitimate’ governments who do actually govern or claim to
govern over the self-same territories and peoples or who try to govern
them --- and against those who are the allies and sponsors of this or
that ‘legitimate’ government --- us!!.
I think, by the way, that these quasi-governments are – with perhaps
an exception or two only -- readily distinguishable from the purely
criminal organizations that operate the international narcotics trade,
as notoriously now in northern Mexico.
Although we ourselves can for the most part readily distinguish
criminal gangs from the quasi-governments earlier cited, the relevant
‘legitimate’ governments don’t and won’t. And that’s the point.
The nature of today’s war on terror is that both sides, governments
and their quasi-government rivals, cede no legitimacy to the other
side, treat “the other” as a strictly criminal operation and, on that
basis, feel entitled to wage unrestricted war on the other and on the
other’s innocent population. This needs emphasizing; we defeat
ourselves if we allow the horrible deeds of terrorists to blind us to
the symmetry of the war on terror and to the common victims of both
sides – civilian by-standers.
Of course, in every case, both sides say, They started it! Not us!!
We are just victims reacting to what they did first! We would never do
‘it’ first. It was their tactics – torture, assassination, blowing up
aircraft or cafes, kidnapping to indefinite detention or even filmed
throat-cutting, an endless list of horrors – that’s what started it. I
suppose there must be some cases where it was one side or another that
really “started it all.” But I think in every current ‘war’ between
governments and quasi-governments, who did what first is not only lost
to history but utterly irrelevant. What we have to deal with is the
fact that the most barbarous war customs of the past have now become
institutionalized in international practice. And foremost among these
barbarous practices is that the lives and well-being of third parties
are held hostage by each side as a weapon to sway the behavior of the
other. Thus it is ‘only natural’ for both sides to feel morally
entitled to say, ‘We must never give in to such vicious terrorists!!’
– which of course guarantees that the carnage will continue.
There are those who will argue that the terrors inflicted by the
terrorists are worse, even far worse than those inflicted in turn by
the governments they are at war with. That’s often been true. But the
immediate counter is that governments, with their greater wealth,
power and stability have more tactical lee-way than the poorer,
weaker, often clandestine adversary. That argument too can be deployed
endlessly and, I think, often reasonably, but of course it too gets us
no closer to ending the carnage.
The Northern Ireland settlement and the end of South African
Apartheid point the better way. One has to selectively “forget”
yesterday’s crimes if one is to prevent today’s and tomorrow’s. It is
a faulty moral stance which serves to keep evil events going. It is
the more genuinely moral position that, because it is appalled by
deeds already committed, takes up a single minded determination to
make an end of such deeds for today and every tomorrow.
A PROPOSAL TO WIN, perhaps REALLY WIN THE WAR ON TERROR
It makes sense to try to give these quasi-governments a fully
legitimate international status for what they are – just that,
quasi-governments. The idea is to recognize their governmental
qualities, and on that basis to bring them within a stable, pacific
international institutional structure which would offer them present
advantages not otherwise available to them. It is perhaps possible to
design a structure that would be sufficiently attractive as to draw
them in and thereby bring them under an expanding rule of
international law and humane international practice. Such a strategy
cannot guarantee peace but it does promise to take us back a bit from
the current barbarism.
One doesn’t want utopian solutions and it may be that what is to
follow will violate that stricture. However, underlying each part of
every proposal to follow is its necessity if we are really to put the
present barbarous international “order” behind us. But in this unhappy
world what is necessary and what is possible are often out of sync.
It would be technically feasible to develop a set of standards –
better looser than stricter – to determine whether such and such is a
‘real’ quasi-government or just a gang of brutes. The problem doesn’t
lie there; it lies instead in being able to offer enough to those
quasi-governments that they would in turn restrict those military
operations which victimize innocents, modify those war-aims which make
the wars eternal, and change such of those other practices that add to
the already excessive savagery of armed combat. To take an extreme
case of the sort of distinction I have in mind, if we accept that
there is a war on between the US and Al Qaeda, it is legitimate for
both sides to attack the combatants of the other – but not more. If an
Al Qaeda training camp is positively identified, it is as legitimate
for ‘us’ to attack it as it is for ‘them’ to attack the Pentagon.
Their leaders are combatants and thus legitimate targets for us, as is
President Obama for them. But not Michelle Obama and the children and
not Union Station and, I think, not an ordinary US or NATO soldier on
leave in some Afghan city. Perhaps in such places officers are a
legitimate target, or military police, and so on. It all sounds
hopelessly complicated and seems to offer a wide field for sophistry,
day-dreaming and spurious ethics. But the reality is that prior to
World War II almost all of the great powers had subscribed to a very
practical set of behaviors about how to conduct war ‘humanely’; I know
that that sounds utterly insane but not at all so if we change it to
‘more humanely than otherwise’.
The fact is that where those standards were upheld in practice in,
say, WW II, the human benefit was enormous. The universal bar to the
operational use of poisonous gas is perhaps the best known of these.
Less known is the recognition of medical personnel and sites by both
sides. Where that occurred, the benefit was immense. Unlike, say, our
Civil War where the wounded were often left unattended for days on the
battlefield, in WW II it was not uncommon for local truces to be
adopted so that the medics of both sides could carry our their
life-saving, pain-saving tasks, often working together. Where such
humane options were not present or were ignored – as often in WW II --
there was only a story of unspeakable atrocity.
PROPOSING
First to establish a procedure whereby such a quasi-government can be
recognized as such and thereby enabled to participate within the
relevant international institutions. I think recognition by the UN
General Assembly would be good here but, given the military nature of
the problems we want to address, some official standing with the
Security Council and the various international courts seems necessary.
On its part, the international community could offer such a step,
thereby giving formal recognition and protection to their diplomatic
personnel and sites, extending similar guarantees for their press and
media, guarantees for safe international travel for their designated
representatives, invitations to relevant international conferences,
committees, events and so forth. Going a bit further, something
substantively equivalent to prisoner-of-war status for their
detainees, perhaps, as in our Civil War, a system of parole so that
endless detention would become a thing of the past.
A quasi-government in turn would have to subscribe to an up-dated
system of what the military call, ‘Rules of Engagement’, specifying
when and what may be a target for military operations, treatment of
wounded and of prisoners, etc. And going even further, it might be
possible to mark out zones, both government and opposition, where a
more or less permanent armistice was observed. The barriers to working
out this sort of protocol are not technical ones.
More substantive, that in an authoritative, neutral international
setting ‘legitimate government’ and ‘quasi-government’ be required to
sit down -- probably through third party intermediaries -- to simply
lay out grievances and to clarify their war aims. That’s all at first
but clearly that would set the table for some sort of diplomacy.
Ironically, I think enough rewards can be offered to many of these
quasi-governments that they would at least contemplate sitting down
and possibly taking advantage of them. At least temporary truces would
have to be negotiated more or less simultaneously.
I don’t think such a scheme – it needs more development than my
competence allows – would be greeted everywhere by ‘the terrorists’.
But I think to have that path opened to them, plus one or more
successful truces, followed by a few substantive political gains would
begin to unlock the international ‘terror scene’. At present, we are
deadlocked between two sets of terrors, the official and the
unofficial kinds. Any progress, any easing, any favorable prospect
would be a gain.
Here, in this process, legitimate governments have more to lose and,
in my view, are less likely to enter into it. Just to look into why
that is so is a lesson in itself.
What makes so many of these quasi-governments government-like is that
they have arisen to protect – or avenge – the ethnic, religious or
other, usually minority populations against a government which
disserves that population. It may only be that the existing
‘legitimate’ government is inept and cannot provide a minimal level of
social and related services to make for a tolerable life. Or there may
be – very often is – some sort positive animus which generates the
quasi-government as a defense mechanism against governmental
transgressions and aggressions. In saying this I do not wish to be
misunderstood on certain points. Whatever may have been, for example,
the sources of the rise of the military capacity of the Taliban, we
have had enough experience with them to recognize their implacable
reactionary qualities with respect to women, with respect to those who
simply disagree with them, even against the most hallowed cultural
shrines. Yet, as with Al Qaeda vis-a-vis the Saudi princes, there is
no use to dwelling on implacableness and related. The point of
implacable is that it is implacable. One wants instead to seize every
opportunity either to test whether implacable really is the case or
whether there instead may be openings, now however small, to wean even
the worst fanatics to a lesser degree of fanaticism – if not in their
ideology at least in their actual behavior.
At least at first sight, these quasi-governments would have more to
gain from the adoption of this scheme and at least some of them would
thus be more likely than their governmental foes to give it a try. The
cruel truth is that just about all ‘legitimate’ --- “sovereign” --
governments consider it their inalienable right to mistreat at least
some of their subjects – sometimes by omission but very often by
enthusiastic commission. I can already here their shocked, outraged,
even anguished cries, What, we XXXX’s should deal with those YYYY
traitors, criminals, murderers, vagabonds, infidels, etc. etc. Never
Never, never!!! It seems likely that the pressure to pressure
governments to adopt any such scheme as here proposed will have to
come from outside their official ranks, come, that is, from the vast
ranks of their citizens who are now put at risk by the unabated
continuance of terrorism and its paired-practitioners.
Can the scheme really work? There is an older imagery about
intractable problems that is perhaps helpful. It is not a question
here of peeling away fanaticism and implacability to get finally to
the pit of reasonableness and cooperation. Terrorism may be more like
an onion which has no pit – but every layer of violence and
unreasonableness that one can peel away is a positive gain and it thus
behooves the US and the international community to try to do just
that.
I’ve not even mentioned the economic development absolutely necessary
to diminishing these symmetrical wars on terror. Currently, such
economic schemes seems far too utopian – and with little ‘legitimate’
international support. But, if there really was a political strategy
to diminish such terrors, perhaps some of those perfectly obvious,
desperately needed schemes would appear do-able – and be done.
RELIGION WITHOUT INTOLERANCE
It now appears to be the case that virtually all of the world’s major
religious communities are too influenced, often dominated by their
most bloody-minded, reactionary, and intolerant wings. West Bank
Judaism – and its supporters here -- answers to that description. The
present Pope is a true Leninist committed to “better fewer but better’
and in that spirit is trying to impose his own doctrinal intolerance
on Catholic universities and clergy, on the various orders of nuns,
and, of course, on Catholic politicians who favor abortion rights. The
same wing of Hinduism which assassinated Gandhi now mounts one of the
major Indian political parties. Buddhists in Myanmar have recently
turned violent against a Moslem minority. The internecine wars within
Islam and between Islam and the infidels need no further mention and
there is, of course, the rise of an evangelical, fundamentalist
Protestantism that has acquired a taste for using politics to force
its narrow-mindedness on others. Even the Russian Orthodox Church has
sharp tendencies to the right; in a step that beleaguers the
imagination, they’ve gone and canonized the last Tsar as a holy saint!
It would be a boon to our suffering world if from each of those great
religious communities the more liberal and tolerant elements were to
come together in an efficacious, public way and then formally
acknowledge the obligation of each communion not only to recognize but
to positively protect the right to worship and to a secure life for
those outside its own fold. Even Islam, now seemingly the most
intolerant of creeds, was once upon a time the most tolerant and
protective of all communions for its religious minorities. Surely
there are enough Moslems suffering under Christians or Jews, and
enough Protestants suffering under Catholics, and Sikhs under Hindus,
and so on through all the permutations, that a case could be made for
the vast net benefit attendant upon a declaration of mutual,
pro-active tolerance and protection supported jointly and vigorously
by all the world’s major religious communions.
And one or more warring governments (and their foes) might dedicate
at least some of their resources to try to encourage just such a
result.
I want to reiterate the substantive point of the above reflections.
To view “terrorism” as a criminal matter and that’s that is to add
more victims to a half century of such victimization, and I think to
guarantee the distortion of the lives of so many principled men and
women, often those very young persons whose special zeal and courage
could offer so much to the creation of at least a somewhat better
world. Whatever private views one entertains as to the respective
weights of political and economic grievance, sheer fanaticism, and
criminality on the part of those who are called terrorists today, it
is the moral path, because more efficacious, to focus on their
politics. We are in the world of Pascal’s bet here and thus all the
plusses are on the side of making that bet.
CONSTITUTIONAL ISSUES
In the NY Times piece earlier cited, the authors describe the
elaborate process government officials now engage in to identify
potential targets for the ‘kill list’. This or that person is proposed
for assassination, there is debate about whether s/he really deserves
to be killed and at what cost to by-standers, and then a final
determination as to killing or not killing. President Obama reserves
to himself the final review and decision for each case. As the Times
piece makes clear, the stated policy is to minimize the deaths of
innocent by-standers, but it is no real secret that the actual policy
is, If it’s dead, it was a terrorist! As I argued in OBAMA PLUS AND
MINUS # 2 and repeat here, the whole process– there is no question
about it all -- is flagrantly both criminal and anti-Constitutional.
At the same time, our government feels – I think reasonably—that it is
under the grip of necessity to do what it is doing and in the way that
it is doing it.
Is it possible to lessen both its criminality and its
un-Constitutionality? Perhaps.
Let us contemplate a secret federal court. A secret court but a real
court with judges sworn to uphold the law and the Constitution and
not, as now, a de facto sort-of-court staffed with military and
security officials for whom policy and career issues are quite as
important as legal and constitutional ones. A statute would originate
and guide the operations of this court – not an administrative
decision of a President or other functionary.
First then a genuine federal court with judges sitting for life – not
just the length of the present Administration, and then a formal
adversarial process in which some members of the court prepare
indictments and their evidence (as, apparently, now), and some others
are charged as defense attorneys to defend to their utmost the
innocence of the accused (as doesn’t happen now). Defense Counsel
might have to be drawn from outside the government, though the current
crop of military lawyers, as at Guantanamo, have been absolutely
beyond praise.
After a legitimately adversarial trial, a judicial finding and a
judicial sentence. Only then could the President assert the penalty.
Not only issues of guilt or innocence should be adjudicated here but
also the likelihood and degree to which carrying out a given verdict
would threaten or injure innocent by-standers.
I think, by the way, that almost the entire legal framework needed to
guide such a court already exists. One does not have to construct a
guiding system of laws and practices out of whole cloth.
The changes I propose over the present process, and the reasoning
behind them, should be so clear as to require no further elaboration.
But we are not there yet!! Secrecy is the problem. Such sessions and
their information would obviously have to be secret now, and their
‘sentences’ and some of the intelligence they are based upon would
have to be kept secret into an indefinite future. Can this potential
for arbitrariness be further reduced, if not removed?
Then too, revealing information might put in jeopardy the lives of
one or more of the members of the court or their near and dear. Can we
fashion the needed protections?
I propose first the absolute principle that all of the information
about the court, the personnel, the evidentiary bases, the indictment,
the defense, the verdict and the sentence will and must be fully
revealed, period. No quibbling, full public disclosure, as public as
it is possible to make it. Full, complete, thorough! Only the timing
of that should be in dispute. In the last analysis, the sole
protection we have that this will be a true judicial process and not
an exercise of politics or careerism is its ultimate airing. And by
“airing’, I don’t mean that at some future point each relevant fact
and/or personality will be “in the documents” for the scholars of
tomorrow to study at their library cubicles.
In order to make this a judicial and not a political process, every
person in every phase of it, must know that at some point in time his
or her behavior will become public knowledge, will be mandatorially
published in what must be made a highly visible public venue.
Something like the mandate for this or that government to publish when
and to whom it has given a paving contract – but obviously we want a
much more visible, compelling publicity! Perhaps periodic, Proceedings
of the Terror Court, prominently published – “splashed” -- in the main
national newspapers and journals of record.
Again, I haven’t the competence to judge time limits but even in the
most extreme case – posthumously -- publication of what you did and
how you behaved under your judicial oath has some authority over all
but the most base of persons. If you broke your judicial oath, or
slacked off for the Defense, you should understand that at the very
least your widow(er) or at least your children will have to live with
that as public knowledge.
Similarly, some intelligence grows stale immediately, some in weeks,
and some in decades. Actually governments already have some experience
with the timing of the release of information about intelligence
operations and that experience obviously can be brought to bear here.
In the last analysis of course most of the public will be
uninterested in events, almost no matter how dramatic, that occurred
5, 10 or 30 or even more years ago. The safeguard in this proposal is
our organized legal profession. It already actually serves that very
function today for a distracted public. Though there have been awful
lapses in the past, I do think that the legal profession – as a
profession – can be trusted to make sure over time that such an
anti-terror judicial process would maintain its judicial character,
remain as close to Constitutional Spirit, if not actual Letter, as the
difficulty of its tasks would dictate and, most important of all – end
the wounding of the Constitution that is now guaranteed by the
existence of the Obama ‘hit list’.
CONCLUDING
It may be that the war on terror cannot be waged except through what
we would ordinarily judge to be criminal behavior, as by
administrative, assassination and not judicial execution. Or
un-Constitutional behavior, as by erasing the barriers to the
executive’s powers. Or the killing or indefinite detention of US
citizens with only the empty pretence of due process. That
unfortunately is very possibly true.
But if so, then we should not fudge the matter – as so much of the
current public debate does. You know, “balancing this with that’,
‘safeguarding both security and privacy’. That’s the sort of plausible
appearing sophistry that guarantees a Constitution with less and less
authority over time over the behavior of Presidents and their security
services. It seems the better path to try to craft new institutions
that can preserve at least the spirit of Constitutional Government
and, as above, the inner spirit of a still very fragile international
legal order. I’m sure – or at least I hope -- there will emerge better
proposals than those I have offered here. The point is to craft them
and then to see to their enactment and enforcement.
John McDermott
Boston, June 19, 2012
[When in doubt, assume that if I post someone else's opinion, it does
not represent mine.]
--
Jim Devine / "As far as the laws of mathematics refer to reality, they
are not certain; and as far as they are certain, they do not refer to
reality." -- Albert Einstein
_______________________________________________
pen-l mailing list
[email protected]
https://lists.csuchico.edu/mailman/listinfo/pen-l
