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Justice revisited

A couple of days ago, I questioned whether or not the legal model was the right approach to fighting the war on terror. I looked at our judicial system, and found it wanting. The threats we face are the sorts of things that the law simply isn't properly equipped to deal with.

But that's all right. The legal system isn't the only tool at our disposal.

When one has an emergency, one should call 911. But there are many types of emergencies, and the 911 operators are trained to determine which response you need -- paramedics, police, firefighters, or all three. You don't send an ambulance to a bank robbery, nor a fire engine to a heart attack (unless that's all that's available).

Likewise, you don't fight wars with lawyers armed with briefs.

Several detractors of my piece failed to see the proper "nuances" to it, instead going for the absolutist, black and white interpretation (a rather odd twist, considering the stereotypes of the political wings). Apparently, my saying that the legal system can't properly handle the terrorist threats we face today was the equivalent of calling for the complete abolition of our entire judiciary.

Our legal system, for the most part, works and works well -- when applied to the issues it is intended to address. THe war on terror simply isn't one of those things.

International terrorism is a remarkable thing, a blending of criminal and military elements. It uses what are, technically, criminal means to achieve political goals in a manner traditionally associated with military force. They are neither fish nor fowl, and to treat them as apurely criminal or purely military threat is a recipe for disaster.

One of the things I respect about President Bush is that he recognized this devil's brew of a threat and reacted appropriately.

If there is one element of the United States government that has the ability to react quickly to changing threats and environments, to absorb large losses and continue, and to adapt to rapidly evolving circumstances, it is the military. Pretty much every time we have gone to war, we have gone fully prepared to win the previous conflict -- but we learn very quickly. The US military has a remarkable record of victories, of getting their noses bloodied at first, then learning what they need to do to win and doing it.

So, do I have concerns about letting the military take the lead in the war on terror? Not in the least.

Well, you say, what about the legal considerations? Shouldn't the legal system have some say in the matter?

Not initially.

The military has its own justice system, and it works pretty well. The prisoner abuse at Abu Ghraib, you will recall, was first exposed by the Army itself. It discovered the abuses, investigated them, tried the accused, convicted them, and punished them all on its own. And it is currently investigating just what happened at Haditha, and I have faith that if any US service members violated military law, they will be punished as well.

So, what would be the role of the justice system, in my little ideal construct? It would separate the wheat from the chaff. It would look at those accused of terrorism or terrorist plots uncovered within the jurisdiction of the United States and separate the (alleged) criminals from the (alleged) terrorists, and handle the former. The latter would be turned over to the military for handling. They would be judged either civilians or combatants. If judged combatants, as per the Geneva Convention, then they would be judged as either legal or illegal combatants. The legal ones would be detained until the end of hostilities; the illegal ones would be given the choice of cooperating with us or summarily executed -- as per the Geneva conventions.

Naturally, that ain't gonna happen, but like I said, it's my little fantasy.

Finally, I have to make a couple corrections. I said there has been a single terrorist attack within the United States since 9/11. I meant one foreign-linked terrorist attack, and spoke of the Egyptian gunman who shot up the El Al ticket booth at LAX on July 4, 2002. Prior to 9/11, foreign terrorists struck at the World Trade Center in 1993, set off bombs at 2 US embassies in Africa in 1998, and the attack on the USS Cole in Yemen in 2000. They had also struck at Americans and American interests around the globe. Since 9/11, though, with that single LAX incident, we have had almost five years without a successful foreign terrorist attack.

Others have said that Iraq wasn't a part of the "terrorist infrastructure" prior to invasion. Those folks apparently have never heard of the Saddam-sponsored terrorist training camp at Salman Pak, missed the news of Saddam's $25,000 bounty for the families of Palestinian suicide bombers, and haven't seen any of the recently-translated documents that spell out just how far Saddam had his fingers in the pies of international terrorism.

I've said it before, and I'll spell it out again: Saddam, to the best of anyone's knowledge, had no involvement in 9/11. It's also highly doubtful he had any foreknowledge of that attack. But his ties to terrorist groups -- including but not limited to Al Qaeda -- are beyond doubt. The decision to invade Iraq and topple Saddam was not an end to itself, a final resolution to terrorism. It was a step in the campaign, a strategic decision to establish a sizable military presence in the heart of terrorist country and try to see if democracy and Islamic/Arab culture are compatible -- because democracy is the mortal enemy of terrorism, the ultimate tyranny of the minority. It was given the veneer of legality by citing the repeated violations of the terms of surrender from the first Gulf War, but that was not the primary factor. And those who say that "Bush lied when he said Saddam was linked to 9/11" are, at best, ignorant idiots who are finally believe their own BS.

So yes, justice and the law have their role to play in the war on terror. But to give it the sole responsibility is the sheerest folly. We tried that, after the first World Trade Center bombing in 1993. We tracked down the conspirators, arrested them, tried them, convicted them, and sent them to prison. The rest of their group, safely out of the reach of our government lawyers, moved on and kept up their work -- in Yemen, in Kenya, in Tanzania, in Saudi Arabia, and finally in New York, Virginia, and a field in Pennsylvania one beautiful September morn almost five years ago.

I'm sorry if this went on too long. I feel badly for those of you who had to wade through all this rehash. But it wouldn't have been necessary if the Left wasn't so absolutist, so black-and-white. If only they were educated enough, sensitive enough, concerned enough to properly appreciate the nuances, the shades of gray, the sophistication of my original piece, the world would be a better place. But they have to stick to their neanderthal "all or nothing" beliefs.


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Comments (21)

Jay, you forgot about the t... (Below threshold)
stan25:

Jay, you forgot about the thwarted attack by the terrorist at the US/Canadian border. If it had not been for the sharp eye of a border agent at the checkpoint, there would have been an attack on LAX in 2000.

Well, I see your opinion th... (Below threshold)
Kimyl Oh!:

Well, I see your opinion that the military is best able to fight the war on terror. I think that the legal system can also play a strong role as well, but you argue effectively for your cause.

And just so you know, both sides have a problem with black and white. People on the far right see this as good vs. evil, and will never acknowledge that anything America has done might ever lead to terrorism. We are the good guys! Always! People on the far left might be a little too quick to forgive terrorists, and their opposition to war might blind them to some instances where it helps.

I think the big problem Republicans ALWAYS get into is trying to defend this war as the right war. Clearly it was driven by some things prior to 9/11 (evidence shows their first move was to be against Iraq, even before we figured out what was happening). Here is where the right wing turns on its blinders; people who are opposed to the war say, Saddam is bad BUT....
while people who are for the war are so busy defending it that they cannot see past the part where he is bad.

If you think bringing 200,000 troops and spending billions of dollars on a HUGE military campaign is the most effective way to fight terrorism, you are daft. Strategic forces, better intelligence, popular persuasion, diplomatic insulation are all far better. Now, since we tried to use a tank to crush a fly, we have to deal with collateral damage and guerilla warfare.

I see the thrust of your post, and I see the efficiacy of the military in handling some of these cases, but you lose yourself when you try to rally around Iraq as a war of necessity.

"Strategic forces, better i... (Below threshold)
Les Nessman:

"Strategic forces, better intelligence, popular persuasion, diplomatic insulation are all far better."

Meaningless, empty rhetoric that could be spun to mean absolutely anything. Care to elaborate?

The legal ones would be ... (Below threshold)
jpe:

The legal ones would be detained until the end of hostilities;

ie, forever.

Well put JT!I had ... (Below threshold)

Well put JT!

I had just finished some of the typical Office Spam (you know, those umpteenth forwarded chain letters from Hades, full of Photoshopped laughs or Urban e-Legends), and the latest was an unreferenced cut and paste of a speech I could not find an original of, but at the Free Republic is an early post with the most accurate sounding attribution).

I hear a bell ringing, but there are still folks pressing on that snooze button (or trying to smash the clock against the wall).

But here, again, is the eit... (Below threshold)

But here, again, is the either/or. Don't you see it?

Military force isn't a continuation of police force or criminal law, it's a continuation of diplomacy. It's NOT the failure of diplomacy or something only to be undertaken when all else fails, but is something that can certainly carry on in tandem with all of those "better" things that you mentioned. You can very well believe that war was unnecessary, just don't get trapped into the belief that war precludes anything else.

Saddam was bad BUT... the sore spot he represented was a rally cry for terrorist forces and the domestic tyranny a cancer of genocide and terror... and that stuff spills over. We don't live in a world where isolation is possible. Containing Saddam was a farce because even if *he* and his armies were contained others were more than willing to feed their righteous indignation and hype their suicide warriors with the plight of Iraqi children.

If you don't remember the constant rhetoric between Desert Storm and 9-11 about the US war on Iraqi children... google it.

We are no more portrayed as monsters today than we were then. Thousands and thousands of Iraqi children were "collateral damage" long before we set out feet on the road to Baghdad. The idea that this war has *caused* more people to turn to terrorism, or even created the problem that wouldn't exist at all (and if you haven't said that, other have) had we just not done this bad war thing, isn't an idea that stands up to scrutiny.

Are people unwilling to look at what we may have done that contributed to the problem prior to... whenever? I don't think so. It would be a very good thing to work to avoid mistakes of the past. Here's a big one... for decades our foreign policy favored stability over social justice and propping local tyrants who might serve as our proxy so that we never got our hands dirty opposing the ruler of some little back-water nation. (Or big one, or whatever.)

There's lots of ways that the present is our fault, but we have to deal with now and the general "Yes, but..." from liberals is interpreted as a call for inaction. Am I wrong about that?

Iraq represents a lot of changes... no proxy, no finding a tyrant who might be stong enough to unseat Saddam and his sons and slipping him military aid on the sly, fomenting civil war and then pretending not to be responsible for the hell-life that Iraqi citizens live. No, we're there honestly and have as our highest priority, not *stability* but social justice.

We've learned from our mistakes and know that what we need in Iraq is liberty and prosperity because any other sort of stability (and we have learned this the hard way) is a lie.

Isn't that something that liberals should be able to get behind and push for? Social justice, liberty and economic prosperity?

And if not, why not?

Likewise, you don't figh... (Below threshold)
odrady:

Likewise, you don't fight wars with lawyers armed with briefs.

What if they're wearing boxers?

/ducks/

While Jay admits that I'... (Below threshold)
Steve Crickmore:

While Jay admits that I've said it before, and I'll spell it out again: Saddam, to the best of anyone's knowledge, had no involvement in 9/11 Bush has played a shadowly cat and mouse game with Saddam's alleged involvement, so successfully that the American public, for better or worse as of February 28,2006 " 85% felt that the U.S. mission is mainly "to retaliate for Saddam's role in the 9-11 attacks," 77% said they also believe the main or a major reason for the war was 'to stop Saddam from protecting al Qaeda in Iraq.'..Terrorism may be the ultimate tyranny of the minority, but democracy can be a tyranny of the majority (and it is not hard for a leader in a time of crisis, to bend the majority to the policy he requires, irrespective of how stubborn or slippery the facts are.)

Bush has played a shadow... (Below threshold)
MikeSC:

Bush has played a shadowly cat and mouse game with Saddam's alleged involvement

Nobody saying Saddam had anything to do with it is "playing cat and mouse"?

Got it.

Terrorism may be the ultimate tyranny of the minority, but democracy can be a tyranny of the majority (and it is not hard for a leader in a time of crisis, to bend the majority to the policy he requires, irrespective of how stubborn or slippery the facts are.)

The words of a side that can't win elections.
-=Mike

Oh goody, let's start by ar... (Below threshold)
David:

Oh goody, let's start by arresting Zarqawi, that will learn him

re: Saddam and 9-11.<... (Below threshold)

re: Saddam and 9-11.

History will show that Iraq's intelligence service (secret police) knew something was up, and if they were not inclined to support terror they could have penetrated the operation and prevented 9-11.

Call it a sin of omission. Not all that different from the conviction of the 20th hijacker.

But it'll take another 20-30 years for a dispassionate history to be written and for this all to come out.

Anyone that claims certainty (and the administration certainly never has) is guilty of wishful thinking.

And those that think that uncertainty means that a country should not act, history proves otherwise (i.e. in the presence of a large threat, uncertainty forces/demands action).

Just a side note "but democ... (Below threshold)
Wayne:

Just a side note "but democracy can be a tyranny of the majority" can easily happen. That is why the U.S. Constitution originally had very strong inferences to individual rights with the majority deciding how individuals interact and taking a super majority to infringe on the constitutional rights of individuals. Those ideas have been greatly eroded. The simple idea of "majority rule" on everything, don't work very well and will be probably be the downfall of the U.S.

History will show that I... (Below threshold)
Steve Crickmore:

History will show that Iraq's intelligence service (secret police) knew something was up,"
I wasn't 9/11 but the perception of 9/11 by the public, aided and abetted by the administration, that gave Bush his carte blanche...even if another allied secret service Pakistan's ISI could be held more to blame for 9/11 or another, the Mossad may have known about it in advance.

That might mean something i... (Below threshold)

That might mean something if polls meant anything.

Well, okay they mean something but they don't *create* reality. That most people polled, from time to time, have failed to answer in a way that shows they have an understanding of the facts on the ground only means that a majority of people haven't payed attention. How can it mean anything else?

For every person who thinks that Saddam was involved in 9-11 there is a person who believes that Iraq wasn't any part of the problem. Neither understanding makes either understanding true.

Don't apologize. Just keep ... (Below threshold)
Dennis:

Don't apologize. Just keep on blogging this message, and encouraging others to do the same. You can stop when all of the walls in every public space in the nation are completely covered with wallpaper containing your message in fifty four point type. Make that heavy duty waterproof, washable wallpaper.

So pre-emptive warfare is o... (Below threshold)
Bart:

So pre-emptive warfare is ok then?

Why is Osama not accused of 9/11 according to the FBI?

Neither was Saddam btw.

Did the military not try to cover up their actions?
They only took actions when the press found out what happened.

Did any officers get convicted after Abu Ghraib?

Just a few questions...

Jt, A good commen... (Below threshold)
Steve G.:

Jt,
A good comment and right on the mark. This was the problem with the previous administration's approach to terrorism - arrest them when you have enough evidence. That is the core problem with the legal tool - unless you have some extremely good inside information for conspiracy charges, you have to wait for the catastrophic event to produce evidence. That approach doesn't prevent terrorism, it reacts to it.

Oh, and what's this manure about preemptive attacks? You can go back much further than the Gulf War for information about how the terrorist organizations wanted to kill Americans. You can go back to the entire time between the Gulf War and OIF to see all the times Saddam Hussein attacked coalition and UN forces. There were plenty of provocative acts in both places. This isn't a war started by the United States, it is in response to attacks on our citizens and our interests in many places around the world over many years.

And Mr. Crickmore, "the Mossad may have known about..." Come on! That is the most obviously anti-Semitic nonsense. One reporter's article in an obscure newspaper, reprinted from that reliable source Lyndon LaRouche - hmmm no need to bring out the sketicism here, it must be true, it's in print.

What happened to building 7... (Below threshold)
Bart:

What happened to building 7?

So pre-emptive warfare i... (Below threshold)
MikeSC:

So pre-emptive warfare is ok then?

Yes.

Why is Osama not accused of 9/11 according to the FBI?

Seeing as how he's already confessed...

Neither was Saddam btw.

Seeing as how nobody said he was involved...

Did the military not try to cover up their actions?

Seeing as how they reported Abu Gharib months before the press did...

They only took actions when the press found out what happened.

The press found out when the military informed them of the investigation --- several months before the first story appeared.

Did any officers get convicted after Abu Ghraib?

There have been several sentences handed down, yes.
-=Mike

Is a sergeant considered an... (Below threshold)
Steve Crickmore:

Is a sergeant considered an officer? Cardona became the 11th low-ranking US serviceman or servicewoman to be convicted over the Abu Ghraib scandal.....June 1,2006

"Some critics of the US administration and the Pentagon have complained that no senior officers have been prosecuted over the affair. Cardona's defense lawyers had argued that the use of dogs to interrogate prisoners was condoned by superior officers..
General Geoffrey Miller... testified he had only recommended the use of dogs for keeping order at the prison."

As almost always, "a few bad apples" of lower service personnel, rather than any dereliction of senior officer leadership.

Steve, thank you for confir... (Below threshold)
Jay Tea:

Steve, thank you for confirming your ignorance of things military. Sergeants are considered NCOs, or "non-commissioned officers," but traditionally officers are Lieutenants (Ensigns in the Navy) and up.

And thanks also for confirming your absolute lack of faith in the military's ability to police itself and deal with its own miscreants. As pointed out above, NOBODY knew anything about Abu Ghraib until the Army released the story.

BTW, you ARE aware that all the photos out of Abu Ghraib were taken in one night, right? The night one sergeant was celebrating his birthday -- his girlfriend was Lynndie England, and her presence there for his birthday was against regulations. It was essentially a bunch of idiots who had some off-hours undercover fun, and are now paying for their crimes. And the general in charge, Janis Karpinski, was not court-martialed, but reassigned and demoted for not properly supervising her troops and letting it all happen.

J.




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