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Clear Differences On National Security

17 Jun 2008 10:21 am

After September 11, there was a period of consensus among those in power in Washington that terrorism, until that time treated as a crime and thus a matter best dealt with by the justice system, was obviously an existential phenomenon that had all the hallmarks of sovereign malevolent force that was best combated by the military and, uh, military justice. Not since...ever... has the issue been clarified for the electorate.

Barack Obama
:

And, you know, let's take the example of Guantanamo. What we know is that, in previous terrorist attacks -- for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated. And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims.' So that, I think, is an example of something that was unnecessary. We could have done the exact same thing, but done it in a way that was consistent with our laws

John McCain's foreign policy guru, Randy Scheunemann:

"Barack Obama's belief that we should treat terrorists as nothing more than common criminals demonstrates a stunning and alarming misunderstanding of the threat we face from radical Islamic extremism. Obama holds up the prosecution of the terrorists who bombed the World Trade Center in 1993 as a model for his administration, when in fact this failed approach of treating terrorism simply as a matter of law enforcement rather than a clear and present danger to the United States contributed to the tragedy of September 11th. This is change that will take us back to the failed policies of the past and every American should find this mindset troubling."

Let us concede that both Obama and McCain's positions encompass shades of gray. But the difference is fairly fundamental, no? McCain's response to the SCOTUS ruling last week that Gitmo detainees were due the right of habeas corpus was to say, in effect, judges shouldn't determine which terrorists belong in custody; this is a war; the executive branch should. Obama's response was basically the opposite.

Comments (19)

Ross,

Perhaps you could have added the fact that at the same time McCain is to Clinton supporters going on about having voted for the judges he is now slating.

It's somewhat of a contradiction that could be worth a post.

Or do your eyes mist over when you see McCain, and 'Up Where We Belong' starts to play.

As you say. Clear differences. Pays your money and makes your choice. It is curious to know which way the centre will break on this.

I believe we were in theory, abler to deal with terror threats before 9/11. The failure that led to that event was at management and policy level. A number of the eventual terrorists had been in the sights/custody of field agents but none were given green lights to pursue and no pertinent intelligence was shared.
So now we're saddled with a bloated political entity(DHS) when lean and agile is called for. We have the entire military stuck in a quagmire that worsens our security while the cost meter spins at the speed of light.
We a stripping our judicial rights in order to cover stupid and criminal behavior by an out-of-control administration.
I reject Scheunemann's premise. The failure was at the top level of the FBI and more so the oval office.

I agree with this post wholeheartedly. I have never believed that terrorists were "an existential threat" to the United States. Let's say the worst thing I can think of happens, and Osama gets hold of a nuclear weapon, and manages to detonate it on United States soil. I don't want to minimize the size of disaster and catastrophe that it would be, but at the same time, the United States would continue and would still be the most powerful nation in the history of the world. Treating Al Qaeda like it is the second coming of the Soviet bloc or the Axis powers is laughable on its face. What, exactly, have we been so afraid of these last seven years?

All the Supreme Court said was that persons confined in Guantanamo have the right to file for a writ of habeas corpus--that they have the right to challenge the government's decision to lock them up. You take for granted that anyone accused of being a terrorist is a terrorist and therefore has no legal rights. This is straight out of Kafka--you must be guilty because otherwise we wouldn't accuse you.

But the difference is fairly fundamental, no?

Yes and can be summarized as : Bush and McCain vs. Obama

England, Isreal, India, Pakistan when these countries have been attacked by terrorists they have dealt with these issues in the judicial system.

Why can't America?

This isn't about fighting terrorists, it's about respecting the rule of law. We can do both in this country. George Will has a great column about habeus corpus writs and why the ruling by the SCOTUS was so imporant.

I believe that Obama and McCain are addressing two distinct issues here, and talking past each other.

Obama is simply stating that the rule of law and habeas corpus must apply to those terrorists that the USA can capture and prosecute. It does not address the issues of intelligence gathering, disruption of terrorist cells, and preemptive strikes on terrorists in order to prevent attacks against American targets.

McCain's campaign (deliberately?)insinuates that providing basic judicial rights to detainees would preclude the disruption of terrorist operations. I see nothing in Obama's statements to suggest this. McCain is trying to piggyback the stale "soft on terror" argument onto a more fundamental rule-of-law issue.

I believe that Obama and McCain are addressing two distinct issues here, and talking past each other.

Obama is simply stating that the rule of law and habeas corpus must apply to those terrorists that the USA can capture and prosecute. It does not address the issues of intelligence gathering, disruption of terrorist cells, and preemptive strikes on terrorists in order to prevent attacks against American targets.

In fact, Obama has advocated the use of force in places like Pakistan, if countries harboring anti-American terrorists will not effectively deal with these threats. McCain opposes this more forceful approach on the basis of national sovereignty.

McCain's campaign (deliberately?)insinuates that providing basic judicial rights to detainees would preclude the disruption of terrorist operations. I see nothing in Obama's statements to suggest this. McCain is trying to piggyback the stale "soft on terror" argument onto a more fundamental rule-of-law issue.

If these guys were captured on the field of battle in a foreign country they deserve no constitutional rights.

If they were captured in US soil as individuals plotting, then they have some limited protections.

What's there to disagree with about that stance?

When you're in the middle of a fight, machine guns blazing, RPGs and grenades flying you're not collecting evidence on a case by cases basis. They are at best prisoners of war, but we know they're technically not even that.

Is this a joke? The debate is over who decides who stays in custody?

This debate simply isn't another installation in the "activist judges are seizing power and ruining america" political fairy tale. It's a much more fundamental crisis--whether a President can create a place governed by the US, but where the rule of law simply doesn't apply.

Isn't that kind of terrifying? Maybe they declare airports this kind of place (after all, it's where 911 happened)? And, uh, people just sort of...disappear? Are we really willing to bet our lives it'll be limited to places we don't go, and people we don't know? And would it really be OK if we believed it would only affect other people?

The judges rightly said no. No, we can't go redlining US jurisdictions where sometimes constitutional rights apply, sometimes they don't and sometimes, there's a "rights-light" structure that the President can basically make up as he goes along.

And on the bigger picture of anti-terror activities, the judges have ALWAYS decided who is locked up and who is not, but we have recognized conditions under which they might not act properly or quickly enough. And if the President thinks hey, we're at war, now I decide, he has a full right to suspend habeas corpus. We actually have a very clear process for this. But the President hasn't even tried to invoke it!

The fact that the President is not using this process tells us a heck of a lot. The way he's gone about protecting our interests--with shocking dishonesty (he still won't admit we've tortured people, sometimes to death), with double-speak, with secrecy, with ZERO regard for the kind of dangerous precedents he's setting, with no long-term thinking (uh, what do you do if you've tortured innocent people? Let them go?)..sorry, but the President, his court appointees and his supporters simply should not be given the bebefit of the doubt that this is a principled point of disagreement between who gets to decide on habeas corpus, the judges or the politicians.

And this "common criminals" argument is a disingenuous trope. People who shoot the President get a trial like "common criminals." People who commit espoinage or treason get trials. We tried the freaking Nazis!

And hell, don't any of you know your history? If badassery was all it took to beat the Taliban, wouldn't the Soviets have won? They were way, way better at suspending habeas corpus and running show trials than we could ever aspire to be. And they lost. Lost big time. Indefinite imprisonment and torture are a humiliating sideshow, and it's always been what incompetent governments resort to when they want to look like they're doing something.

Sorry, but we're not having problems in Afghanistan because we believe in the rule of law. Though I'm sure the people losing the war over there would love us all to believe so.

Rhoda mentions something that ought to be emphasized. McCain's position is so far out that George Will (nobody's stereotypical liberal) slams it in his column today: http://www.washingtonpost.com/wp-dyn/content/article/2008/06/16/AR2008061602041.html?hpid=opinionsbox1

Rhoda,

Did we try Moussaoui? I think so. Why do you insinuate that we are somehow worse than Britain, etc.?

We try the terrorists captured here in America. We do not bring terrorists home that were caught on the field of battle and try them in US courts.

What is wrong with that distinction?

Now, if Bin Laden was handed over to us somehow, you can be pretty sure he'd end up in court.

But when you're talking about combatants. People actively in the middle of a fight that are captured on a moderate to large scale being tried? That's crazy.

I don't know the specifics of the Guantanemo terrorists, but I'm assuming two things: the government had to make a quick decision about where to bring them after they were capture in Afghanistan early in the War -- there was little to no infastructure at the time "in country" to interrogate large amounts of prisoners so they were brought to a place where it could be done securely.

And second, I'd assume they were captured in a known trainig facility/base that was integral to Al Qaida. Otherwise they would have been treated like normal combatants and placed in local jails in country once available.

In any case, I'd be happy if the US government turned them over to the new Afghan authorities so they could be tossed in prison and tried through the Afghan courts for war crimes there. Would that make everyone happier?

Are you guaranteed due process and rights in American courts if you declare war on us?

They are at best prisoners of war, but we know they're technically not even that.

Posted by sam | June 17, 2008 11:38 AM

They aren't? Why not, exactly?

You, like President Bush, are trying to have it both ways --- you don't want to try them as criminals (that's too good for them), and you don't want to treat them as POWs (that's too good for them, too). So they are neither, which means that we can do whatever we want with them. OK, but don't try to pretend that the US is a nation that operates by the rule of law rather than by dictatorial fiat. If the administration decides that you are the enemy you are automatically fucked. And we now know, thanks to McClatchy, that there are innocent people being held in Guantanamo. Rule of law, or dictatorship --- you decide.

Sam,
The problem is that we don't even know if the people we have in Gitmo are terrorists in the first place. They were NOT gathered in terrorist training camps. They were pulled up in the chaos of post-Taliban Afghanistan. Many of them were simply scooped up by Afghans and Pakistanis desperate for reward money. Others were targets of private disputes or on the wrong side of a local tribal rivalry.

We are accusing them of plotting to attack the United States, not engage in some small-time skirmish with rival Uighurs and Pashtuns.

The current system offers only indefinite detention and no systematic way to determine if they are, in fact, terrorists. Putting them on trial and developing a case against them would do so. Setting up some bogus tribunal where the accused can't even make a case is a recipe for railroading the innocent.

As for returning them to their countries of origin for prosecution, I think that is certainly appropriate if we determine that they never plotted to attack the US.

Sam,
Good questions. I agree there are distinctions. McCain has said that he's for closing Guantanamo which would require some resolution of the dilemma. I'm not aware of what he proposes to do with these cases, but we should not have to worry about a slippery slope as has been the case under this administration.

If these guys were captured on the field of battle in a foreign country they deserve no constitutional rights.

If they were captured in US soil as individuals plotting, then they have some limited protections.

What's there to disagree with about that stance?

Ummm, the founding constitutional documents of the USA? Please tell me where it says people only have rights if they're on US soil.

The right to confront your accuser and see the evidence against you doesn't depend on whether you're in Gitmo or Chicago

First, Obama supports military strikes in Pakistan to hit terror cells, whereas McCain supports a Pakistani-government-law-enforcement approach.

Second, every single Supreme Court case on detainee rights has ruled against the Bush Administration's radical executive power position, and this includes the idea of Guantanamo as a legal black hole.

And we should not be pretending that every person in Guantanamo is a hardened Al-Qaeda operative. Report after report shows we're detaining for years low-level grunts, innocents captured on disreputable bounties, and even people who fought with our troops - from the Northern Alliance, for example - captured on misinformation.

Take Boumediene himself, for example. Six years without charge, detained in Guantanamo, captured in the Balkans on a phony bounty, without the right to confront his accusers - listen to the Supreme Court oral argument.

"Are we really willing to bet our lives it'll be limited to places we don't go, and people we don't know? And would it really be OK if we believed it would only affect other people?
"The judges rightly said no."

Shockingly, four said yes.