A Hard-Fought War

Obviously, I believe that the unlawful enemy combatant designation is unconstitutional and unnecessary. I don’t happen to think this terrorist threat is really a “war,” as the word is commonly defined (outside of marketing circles anyway) so the whole thing is moot in my mind. However, even if I were to stipulate that it is a war then I would argue that we should officially declare it, then hold prisoners under the Geneva conventions and quit this nonsense that we will always be at war with Oceania…err…terrorism. It seems silly to have to point this out, but that is quintessential propaganda in case anybody’s forgotten.

Nobody ever knows going in when a war will end, so this idea that this is unprecedented is nonsense. When the government starts using this “open-endedness” to justify circumventing the constitution, one should be just a little bit skeptical of its motives.

And even if I were to agree that we have no choice but to throw out habeus corpus on an ad hoc basis at the discretion of the president, is there any reason to believe that the enemy combatant issue would be handled by this administration with more competence than they handle anything else? (This is the reason, of course, why you don’t do this. Sometimes leaders bad and stupid — not good and smart.)

This article from the April 26th Newsweek gives a little window into the professional approach they take in deciding who is and isn’t an “enemy combatant.” Let’s just say it validates the concerns of Enlightenment thinkers about the rule of men vs the rule of law:

The Yemeni-born men from Lackawanna, N.Y., were accused of training at a camp in Afghanistan, where some had met Osama bin Laden. The president’s men were divided. For Dick Cheney and his ally, Donald Rumsfeld, the answer was simple: the accused men should be locked up indefinitely as “enemy combatants,” and thrown into a military brig with no right to trial or even to see a lawyer. That’s what authorities had done with two other Americans, Yaser Hamdi and Jose Padilla. “They are the enemy, and they’re right here in the country,” Cheney argued, according to a participant. But others were hesitant to take the extraordinary step of stripping the men of their rights, especially because there was no evidence that they had actually carried out any terrorist acts. Instead, John Ashcroft insisted he could bring a tough criminal case against them for providing “material support” to Al Qaeda.

On that day, at least, the attorney general won the debate, and the Lackawanna Six eventually pleaded guilty. It wasn’t the first time, or the last, that top Bush officials would spar over such weighty legal issues.

[…]

…the administration hadn’t anticipated that U.S. citizens might occasionally turn up in the mix. In the months after 9/11 there were fierce debates—and even shouting matches—inside the White House over the treatment of Americans with suspected Qaeda ties.

On one side, Ashcroft, perhaps in part protecting his turf, argued in favor of letting the criminal-justice system work, and warned that the White House had to be mindful of public opinion and a potentially wary Supreme Court. On the other, Cheney and Rumsfeld argued that in time of war there are few limits on what a president can do to protect the country. “There have been some very intense disagreements,” says a senior law-enforcement official. “It has been a hard-fought war.”

It’s far from over. Officials say they eventually settled on “informal” rules to decide whether a detained American should be thrown into the brig or brought to trial.

So, the policy is carried out by “informally” deciding between Cheney and Rumsfeld’s omnicient talents as judge, jury and executioner or John Ashcroft’s need to bask in the spotlight. Who needs that old relic, the rule ‘o law, when you have a faultless sytem such as this? It’s especially edifying that that politics never enter into any of this. It’s always about keeping those babies safe:

In a speech earlier this year, White House counsel Alberto Gonzales tried to reassure critics, saying the White House had an “elaborate” and “painstaking” system to identify enemy combatants. But it didn’t start out that way. In truth, the enemy combatants policy evolved in fits and starts. In the spring of 2002, U.S. soldiers discovered Hamdi, a Louisiana-born, Saudi-raised U.S. citizen, among the hundreds of ragtag Taliban fighters sent to Guantanamo. They realized they had a problem. The other detainees could be tried before military tribunals. But Bush’s order authorizing the tribunals had exempted U.S. citizens a decision intended to disarm critics. Hamdi was flown to a naval brig in Norfolk, Va., while administration lawyers tried to figure out what to do with him. When a local public defender who read about Hamdi in the newspaper petitioned to meet with him, an assistant U.S. attorney made a novel argument in court: Hamdi was an “unlawful enemy combatant,” and had no right to counsel.

Administration lawyers concede that there was a seat-of-the-pants quality to the way events unfolded. “There is a sense in which we were making this up as we went along,” says one top government attorney. “You have to remember we were dealing with a completely new paradigm: an open-ended conflict, a stateless enemy and a borderless battlefield.”

Yes. They were swimming in totally uncharted waters. Americans involved in terrorism was simply unprecedented. Nothing in our legal system could possibly deal with people who were involved in such an operation. (Well, except for the first World Trade Center bombers or Tim McVeigh or the Lackawanna Six or Lind and those guys in Oregon. But still…) If only we had the option of a charge like conspiracy to commit murder carrying life in prison or even the death penalty, maybe we could effectively deal with ruthless potential killers like Padilla. Our only choice was to have Dick Cheney, Don Rumsfeld and John Ashcroft hash it out among themselves. Our legal system just can’t handle this sort of thing.

Before long, administration officials would extend the battlefield to Chicago’s O’Hare airport, where agents picked up Jose Padilla on May 8, 2002. The Muslim convert was arrested while returning home from Pakistan, where he had allegedly met with a top Qaeda operative and planned to set off a dirty bomb in the United States. He was named a material witness and appointed a lawyer. But prosecutors soon realized they didn’t have enough evidence to charge him with any crime.

Doesn’t that seem odd? The evidence cited today certainly sounds chilling.

To avoid releasing him, Bush decreed on June 9 that Padilla, too, was an enemy combatant. He was sent to a military brig in South Carolina. At first, administration officials saw no problems with Padilla’s treatment. But as the months wore on, Justice lawyers became increasingly uneasy about holding him indefinitely without counsel.

Again, why? If this guy is a huge danger and these people have all seen the evidence that makes that so, what is the problem? They’re all signed on to the program, I assume. No, ACLU sissyboys in this bunch, right?

Solicitor General Ted Olson warned that the tough stand would probably be rejected by the courts. Administration lawyers went so far as to predict which Supreme Court justices would ultimately side for and against them.

Hey, there’s nothing wrong with a little office betting pool. These guys needed to blow off some steam. (Consider how much worse that could have been.) And old Ted would never advise the administration to do anything for purely political reasons. He just doesn’t think that way.

But the White House, backed strongly by Cheney, refused to budge. Instead, NEWSWEEK has learned, officials privately debated whether to name more Americans as enemy combatants—including a truck driver from Ohio and a group of men from Portland, Ore.

I know I feel a lot safer. I just worry that Cheney didn’t get the last word on that truck driver. He’s a man who knows a terrorist when he sees one.