Thursday, October 05, 2006

The Real Difference Between the Parties

Claims and Counterclaims


October 5, 2006; Page A20

Tocqueville's trenchant observation, that sooner or later all political issues in America are "resolved" into legal questions, has certainly withstood the test of time. Our policy disputes are regularly fought out on "legal" or "constitutional" grounds, both in and out of the courts, and nowhere is this more evident than in the debates over the war against al Qaeda.

The national "dialogue" over how the U.S. should respond to the threat of radical Islam is replete with claims and counterclaims about whether the Bush administration has violated the law by holding captured jihadist prisoners without trial, by intercepting al Qaeda communications without judicial warrants, by subjecting detainees to stressful interrogations, and so forth. In fact, almost all of this clamor arises from a basic dispute over whether the U.S. is -- or should be considered -- at war with al Qaeda and its allies, or whether it should address the threat of transnational terrorism as a law-enforcement matter -- as most of its
European allies have done.

There is little doubt that the Democratic Party leadership, and no small portion of the rank-and-file, find the president's rhetoric of war distasteful -- and more than a little embarrassing -- and reject the underlying notion that the U.S. is, or could be, engaged in a legally cognizable armed conflict with al Qaeda and other jihadists. Nowhere was this better displayed than in Bill Clinton's recent meltdown during his interview with Chris Wallace of Fox News. Mr. Clinton protested (rather too much) that he really had been committed to killing Osama bin Laden, and insisted that he did his best to accomplish this goal.

That may well be true. But then as now, Mr. Clinton views the relevant policy choices through a law-enforcement prism. Granting the former president's ardent desire to see off bin Laden, his administration was mired for years in arguments over whether, consistent with a Cold War executive order forbidding "assassinations," the CIA could kill bin Laden, or whether U.S. agents would instead have to attempt a practically impossible capture -- i.e., an arrest.

Paralyzing concerns were also expressed by Clinton administration officials that any attempt to kill bin Laden might cause civilian casualties, even though wartime collateral damage is permissible, provided it is not disproportionate to the military advantage being gained. This rejection of the laws-of-war model continued even after bin Laden proved his belligerent intentions in a series of attacks on American citizens and U.S. military assets overseas.

In the aftermath of 9/11 -- and despite the fact that congressional Democrats joined Republicans in passing an "authorization for the use of military force" against those responsible for the attacks -- most continued to operate in a "law enforcement" mode. Democratic critics of the Bush administration have opposed virtually every measure the president has taken to guard against new attacks on American soil, including the USA Patriot Act, the National Security Agency's warrantless electronic surveillance program, data mining, access to international banking data, and the use of traditional military commissions to try and punish captured terrorists. During the 2004 presidential campaign, John Kerry made clear his belief that al Qaeda was a law-enforcement problem.

The Democratic message was, and remains, that the peacetime balance of individual rights and community interests is sufficient to meet the threat -- along with additional passive, and uncontroversial, defenses such as hardening cockpit doors and giving more monies to first responders. There have, of course, been notable exceptions to this rule -- such as Sen. Joe Lieberman -- but his steadfast support for both the war on terror in Afghanistan and in Iraq cost him the Democratic nomination for re-election to his seat.

By contrast, President Bush immediately recognized that al Qaeda, and the larger jihadist movement it represents, is not simply a new and especially violent street gang or drug cartel that could be handled by more and better policing. Only the government's full complement of war powers would be sufficient to meet the immediate threat to American lives and interests, and to take the fight to the enemy. He sought and obtained Congress's express authorization for military action, and has not looked back. For his pains, the president has been ruthlessly vilified by his political opponents and maligned as everything from the idiot tool of big-oil interests (and his own vice president), to a devious crypto-autocrat determined to transform the presidency into some kind of late Roman emperorship.

The president's critics, and especially those in Congress now running for re-election, should honestly admit that their differences are, by and large, matters of policy which can and should be debated as such. The question is not whether the president has broken the law, whether domestic or international, but which legal paradigm -- war or law enforcement -- makes the most sense in meeting the threat.

Those who believe that captured al Qaeda operatives should be treated as ordinary criminal defendants (rather than unlawful enemy combatants), entitled to all of rights enjoyed by civilians in the federal and state courts, should stop pretending that this result is compelled by the Geneva Conventions or the U.S. Constitution. Instead, they should acknowledge making a policy choice that advantages jihadists beyond the legally required level, explain why they believe this to be right and just, and how they think it will checkmate al Qaeda.

In particular, they must answer key questions, such as how a law enforcement system designed to punish and deter, rather than prevent, criminal conduct can hope to discover and pre-empt future suicide attacks before they take place -- especially after 50 years during which progressives have demanded, and achieved, increasingly greater protections for criminal defendants.

Since the Democrats are certainly not suggesting our criminal justice system return to the pre-Warren Court's days, the pros and cons of the law-enforcement model need to be laid out explicitly, and with particulars, before the American people.

Similarly, supporters of the law-enforcement model must explain on what legal basis
American forces could attack al Qaeda bases overseas, and any "criminal suspects" who may be present at those sites, if the U.S. is not engaged in a war. It was, of course, that very dilemma that prevented President Clinton from killing Osama bin Laden when he may well have had the opportunity.

Sadly, the Democratic voices in Congress, like Talleyrand's Bourbons, have learned nothing. They continue to attack President Bush's policies at every turn and have never answered these questions. They rightly fear that the American people will not agree that jihadists, who recognize no law but their own religious convictions, should be granted the due-process rights of ordinary citizens accused of criminal conduct, or that our own civilian population must accept greater risk of attack to vindicate a vision of personal privacy and individual autonomy that may be laudable in peacetime, but which no state could preserve during war -- and hope to win.

Messrs. Rivkin and Casey, lawyers in Washington, served in the Department of Justice under Presidents Reagan and George H.W. Bush.


Jeremy said...

My comment only responds to a very small portion of this article: The authors phrase "stressful interogations."

This is a nice way to gloss over what many other people consider torture (although popularity is a very poor test for truth). Take waterboarding for example. This involves making a person fully believe that they are about to drown; it happens to be an effective way of getting people to crack wide open. Just because it works, does that justify its use? Or, does literally scaring people to within an inch of their lives really count as merely stressful?

I'm concerned that "stressful interogation" might not be the most honest way of describing what's going on.

Douglas Groothuis, Ph.D. said...

They torture, behead, and force conversations on our people. We can rough them up a bit. It is a war, after all--not a legal problem with assorted criminals.

These are not American citizens; they are enemies. The US can save innocent lives by getting information from them. They would not be in this position had they not attacked us.

Tom said...


Yes, and they deny basic freedoms to women and want to kill the infidel. You don't mean to suggest that we adopt their standards, do you?

Another thing: is it the authors' view that we should grant our president war/state-of-emergency powers from now on? It is very hard to see how the "war on terror" will ever be over. So the president will be able to spy on whomever he or she says is a threat to national security (without being held accountable by any other branch of government) and will be able to hold indefinitely anyone he or she deems an enemy of the state. Isn't this cause for concern?

Douglas Groothuis, Ph.D. said...


Please, my friend! We will not behead people or threaten to do so. The methods used--I am not including Abu Grave illegalities (not sure how to spell it)--are tough, but not sadistic.

The President should have the prerogative to authorize spying on suspects. One must sacrifice some freedoms in war time. If we don't, 9/11 may seem small in comparison to a nuclear weapon set off in LA or New York City. It is possible and the Jihads/Fascists would relish it.

Tom said...

Doug: I know you weren't meaning to suggest any of those things, but there was a tone to your post that suggested to me a "do unto others as they do unto you (although not quite as bad)" ethic. Maybe I misread or misinterpreted.

However, I do disagree with you regarding presidential powers. Yes, we must strive for security and in certain very unusual circumstances the president might have to do whatever will keep us safe and deal with the consequences later. But to give him war powers for something as nebulous and (presumably very long lasting) as the "war on terror" strikes me as giving him way too much.

Douglas Groothuis, Ph.D. said...


I have not worked out a carefully crafted philosophy of torture, but I suggest that while sadism is always wrong, torture (of a particular sort) may not always be wrong.

Some forms of torture might be justified on this ground.

There is a consequentialist concern to extract vital information needed to save lives from future attack. This assumes all other forms of interrogation have failed.

I am not wedded to this, and am open to an argument that would preclude any torture for any reason.

Douglas Groothuis, Ph.D. said...

Chomsky cannot be trusted.

The Daily Fuel said...

As the article's authors point out, the fundamental question is: are we really at war? The president thinks we are. I, and many others, disagree with him.

One indication that we are not is that no great sacrifices have been demanded of this nation, other than a few minor inconveniences when going through airport security. Often in times of war, nations are called upon to make the greatest sacrifices: not for this president, who asked us to continue shopping as usual in the days following 9/11. Then he proceeded to implement tax cuts for the wealthiest Americans, the first American president to do so in a time of war.

His idea of sacrifice seems to apply only to the families of dead soldiers, whose funerals he prefers not to attend, I guess in order not to embolden the enemy (Democrats?) with photos of the commander-in-chief at a private's funeral.

But the president says we are at war against dangerous ideologues. Of course, one can be at war with an ideology. This country knows better than any other. The cold war was the perfect case study in ideological war. If Sen. McCarthy were alive today, I bet he too would line up in support of the president's view of stressful interrogations. Of course history showed us that the McCarthy Commission did nothing to save the country from Communism, but much to destroy the faith of Americans in the righteousness of their government. But while the cold war waged on, none of the presidents who were involved in fighting it saw it fit to use such a broad interpretation of the constitution as Mr. Bush does now. Patience, political, and economic pressure eventually won, with no need to abridge the constitution.

I am a believer in the maxim that actions speak louder than words, so I'd like to contrast the president's actions with his words:

Words: we are at war with a culture of extremism, with people who continually think of ways to destroy our nation (to which he clumsily added, "and so do we.") Actions: he proceeded to wage war on Iraq, a country which has nothing to do with the 9/11 attacks, and he neglected the Afghani front, where most of our worst enemies hide.

Words: the true goal of our war efforts is to spread democracy in the region. Actions: he refuses to speak with Mr. Amhadinejad, the democratically elected president of Iran, or with Hamas, the democratically elected majority party in Palestine. In other words, democracy had better work as Mr. Bush wants it, too.

Words: we are at war with Islamo-fascists. Actions: The president, whose number one job is to protect the constitution, blesses torture (stressful interrogations, as he likes to call them), the repeal of habeas corpus, and uses conniving elements of the press to spread propaganda. And, in the best tradition of fascist governments, his administration has taken full advantage of the climate of fear it has created. It takes a fascist to know one.

So forgive my mistrust of the true motives of this administration and its supporters. Much like Mr. Cheney, they all talk out of right (wrong) side of their mouth. All their attempts to paint Democrats as weak on the war on terror are disingenous. There is no war (none that can be won militarily, anyway.) Just a bunch of people who would like to convince us there is one, so they can continue to make political and financial hay for themselves.