Monday, March 23, 2009

A Short Response To Ben's Post

Wow, it has been a while since I blogged, hasn't it? I haven't had a lot of time with the trip to New Orleans and all, but I'll get back into the swing of things, I promise. I was actually so far out of the loop in NO that I had no idea what had happened news-wise during the ten days I was out (8 days there, two driving days). I got online, like, twice, and watched TV exactly once (the NCAA selection show, if you're curious). There's better things to do in New Orleans. Like argue with dick FEMA contractors, for example.

Anyway, once I figure out how to download pics from my phone to my computer en masse and then post them on Blogger without it taking up way too much room on the blog, I'll share. But until then, I'll rant about terrorism. How's that sound?

Ben exhaustively analyzes the latest DoJ report outlining the Obama Administration's "war on terror" policies. The general worry is that Obama is continuing the same strategies pursued by the Bush Administration, only with a little candy-coating. Ben explains why this isn't necessarily the case. I suggest you read it.

Anyway, I guess my concern isn't so much with the way in which the "war on terror" is being conducted - it's with the concept altogether. Ben points out that the AUMF against al-Qaeda and the Taliban is tantamount to a declaration of war against them. With the Taliban, and in the context of defending the Afghan government against insurgents, I think this is reasonable. Be that as it may, however, I think that we ought to question whether we should really be treating our conflict with al-Qaeda and the Taliban in general as a "war" at all.

I guess I view terror attacks differently from most. I look at September 11th and I see a crime. A big, gruesome crime, yes, but a crime nonetheless. There's no reason why the American criminal justice system can't deal with the perpetrators of this crime in the same way we dealt with domestic terrorists like Timothy McVeigh and Ted Kaczynski. The same goes for other terrorist attacks carried out, or planned to be carried out, on American soil. Jose Padilla falls into this category; so do the Kenya and Tanzania embassy bombings (remember, our embassies are technically our land).

See, declaring "war" on a criminal enterprise like al-Qaeda makes no more sense than declaring "war" on the Mafia, and the "war on terror" isn't a real war any more than are the "war on poverty" or the "war on drugs." But the parallel with the "war on drugs" is instructive. Anyone who reads Radley's blog as regularly as I do recognizes the corrosive effect that the treatment of drug enforcement policy as a "war" has on civil liberties and police accountability. In the name of the "war on drugs," we've legalized wholesale theft, for God's sake (see: asset forfeiture), not to mention untold police thuggery and Fourth Amendment-breaking. We shouldn't assume that treating our attempts to bring terrorists to justice as a "war on terror" would be any less damaging to civil liberties in the long run.

So when Ben points out that civil liberties fans ought not to be as worried about Obama's policies as, say, Glenn Greenwald, he's probably right, but the source of my worry isn't Obama's policies specifically. My worry is in the AUMF itself - when we decided to declare war against what was essentially a criminal enterprise, we turned what ought to be a primarily criminal justice matter into a primarily military one. And my worry is in the language we use to discuss this whole affair - we need to bring terrorists to justice, but we don't need a "war on terror."

Of course, there's clearly a legitimate military component in the battle against terrorists. After all, the 9/11 perpetrators were hiding out in a country - Afghanistan under the Taliban - that was never going to agree to extradite them, and this is unacceptable. A better AUMF would have stipulated that the military's role was to bring 9/11 perpetrators and their co-conspirators onto American soil where they could be prosecuted to the full extent of the law, as well as to remove regimes that refuse to turn over those suspected of terrorist activities against us. I have no problem with holding Taliban POWs captured on the battlefield until the Taliban is defeated. But terrorists themselves should be treated as common criminals, since that is essentially what they are, whether or not they're politically motivated.


Matthew B. Novak said...

Admittedly you've given this a lot more thought than I have, but doesn't political motivation make a difference? Terrorists essentially (or actually) declare war on us. It isn't that we're choosing to call it a "war," like the war on drugs or the war on poverty; it's that we're simply acknowledging that war has been declared on us and responding to that.

If we're going to treat terrorist attacks as just another criminal act, then shouldn't that also prove true for all acts of war? What's the difference?

I'd also wonder about the efficacy of using the criminal justice system when military might is needed to bring terrorists under U.S. authority. The whole "military brings them in/police and the courts handle it from there" seems like it would have some significant problems in reality.

Ben said...

There are certainly ways in which the "War on Terrorism" is unlike any war we've ever fought. Even though I argue that it's on the same legal footing as, say, Vietnam or WWII, I'm still disturbed that we're fighting an amorphous enemy on a battlefield known as "Planet Earth." The recent expansion of Executive Power alone - shown in the killing of an American citizen in Yemen in 2002, the torture, the eavesdropping - reveal that Jeff's concerns are justified. The current War on Terrorism is undermining civil liberties in the same manner as the War on Drugs.

Still, this is a bit different from battling the Mafia. It involves much more of a foreign policy element and, necessarily, military force. Speaking purely from a policy standpoint (not a legal standpoint), I would prefer to see it something more like the Cold War - an overarching foreign policy strategy with elements of military force, diplomacy, and law enforcement mixed. To some extent, it already IS that....but treating the whole thing as a war has troubling legal and rhetorical consequences. So, while I believe the AUMF authorizes a war footing against Al Qaeda, I would have no problem if it were withdrawn and fine-tuned along something of the lines that Jeff suggests.

Also, thanks for responding to my post, Jeff. When one writes long posts like the one I wrote, it doesn't tend to inspire comments. And then I wonder if anybody bothered to read it.