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anything interesting? Fri, 25 Sep 2009 13:24:51 +0000 hourly 1 https://wordpress.org/?v=7.1.4 By: the talking dog https://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21117 Fri, 25 Sep 2009 13:24:51 +0000 http://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21117 Hmmm…. the Hamdan case, as explained here http://www.scotusblog.com/wp/hamdan-summary-and-huge-news/ by Marty Lederman, ex of “Balkinization” and Georgetown Law and now an official in the Obama/Holder Justice Dept., held that the 3d Geneva Convention of 1949 applies to all–al Qaeda, Taliban and everyone– captured in the Afghan conflict. As to other “right answers,” I will just note that in later chapters, Mr. Wittes himself astutely observes various levels of the Supreme Court decisions, which, in some cases are of little practical effect (GTMO still open, prisoner held, etc.) but at other levels, potentially of “tectonic” significance… Re: “which right answers did they decide?” is a fair question, because as noted both by you and by Mr. Wittes, the answer is “fewer than you might think!”
Re: holding prisoners, we certainly can hold our own prisoners as a matter of law, and did so in WWII (and I suspect beforehand) and the first Iraq War (albeit, not for all that long for the most part!). In Viet Nam, I have been told, for example in my interview with former JAG Officer Jeffrey Addicott, http://thetalkingdog.com/archives2/000611.html that all (or just about all) NVA and VC prisoners were indeed turned over to South Viet Nam during the conflict there.
The problem of not doing so in a similar manner Afghanistan is twofold.
For one, it demonstrates that we have no confidence in the Karzai government to perform a basic function, like holding prisoners, at a time when the main problem in that conflict is the total lack of legitimacy or local support among the local populace that is turning in droves to the Taliban, not because they like them, but because the Taliban are at least competent enough to provide basic security and services.
The second problem with not doing so is legal, and relates to the “tectonic” part of Mr. Wittes’s analysis. One judge has already extended American court jurisdiction over prisoners at Bagram (e.g. http://www.nytimes.com/2009/04/03/washington/03bagram.html)
Do we want federal judges, in any way really, directing operations in a war zone? Sadly, the Bush Administration’s abuses of law (and the Obama Administration’s refusal to preemptively back off them) pretty much forced the hand of the courts to intervene… the injustices and abuses are just that severe. Still, the courts are not well-suited to this task– as Wittes notes, and as I will readily note.
OTOH, all of this is entirely, 100% unnecessary: if we had handed prisoners from the Afghan conflict to detention facilities under the control of the Afghans (ditto, btw, in the Iraq conflict), we wouldn’t need to have this discussion… and indeed, we might well be on our way to “winning,” or more importantly, leaving>
I’ll leave you with a quote by T.E. Lawrence [“Lawrence of Arabia”] quote, which the West never listens to, but is as sound advice now as it was nearly a century ago:
Do not try to do too much with your own hands. Better the Arabs [or Afghans, or Iraqis, or…] do it tolerably than that you do it perfectly. It is their war, and you are to help them, not to win it for them. Actually, also, under the very odd conditions of Arabia [or Iraq, or Afghanistan…], your practical work will not be as good as, perhaps, you think it is.

]]> By: Thomas Nephew https://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21116 Fri, 25 Sep 2009 12:21:49 +0000 http://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21116 “our Supreme Court has said”
I need you to clarify that for me a little. Which ruling do you mean, and which right answer does it confirm?
“would have turned POWs captured in Afgh. over to the Afghan govt”
I’m a bit surprised at that. Is that a Geneva Convention? If so, which one; if not, what law or treaty compels that? Were all NVN and Viet Cong prisoners held by SVN? (Not that we were models of good behavior back then either.)
I’m asking not to take issue with you at all, of course, but to have the answer myself when someone takes issue with me.

]]> By: Michael L https://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21115 Thu, 24 Sep 2009 09:23:35 +0000 http://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21115 TD,
I think the “war president” part is really important. It explains Bush’s behavior but also Obama’s. Dems have always struggled with being seen as soft on war, and Obama especially has problems with looking like a strong commander-in-chief.

]]> By: the talking dog https://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21114 Thu, 24 Sep 2009 07:57:46 +0000 http://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21114 In subsequent chapters, I think it’s Wittes himself who makes the point that a number of things can go on at the same time– military action, intelligence operations, law enforcement, both domestically and in cooperation with other nations– all, some, or none of which actually require the formal conducting of “war”.
Our military is deployed in over 100 countries (btw, I AM suggesting that this would be an excellent time to start asking about that,to wit, is their presence all over the world buying us security… or just more enemies which will in turn only justify yet more deployments?) but I digress…
I am suggesting that after over 8 years now, it is safe to say that “the war” metaphor isn’t nearly as useful as first thought; unless one buys conspiracy theories that Bush/Cheney actually wanted OBL/al Zawahiri/et als. as useful political bogeymen, Occam’s Razor says that the failure to catch them is more the result of political, military and logistical incompetence, and maybe (after the quick rout of the Taliban through classical military methods, which I should note should have been part of the mix) we should decide we no longer need a military presence in Afghanistan, or at least, the scale of the one we have.
Perhaps if we had stopped permitting Dubya the fantasy of being “the war president” and just got down to the slow, boring business of regular intelligence and law enforcement operations with LIMITED military action where necessary, appropriate, we might have actually taken out AQ, AND not done so in a manner likely to generate more enemies rather than fewer.
I’ll just pose a question here. Might it make sense to go with the “war” status — but simultaneously acknowledge the detainees to be POWs, with all the Geneva Convention rights of POWs? No mistreatment, yes Red Cross visits, etc.
Well, traditionally (at least for the 55, 60 years before 9-11),we would have turned POWs captured in Afghanistan over to the Afghan gov’t,who we’ve implicitly decided aren’t up to it by taking the function from them; of course, this is because this is “OUR WAR”… but then, the purpose of that was intended NOT to follow international norms. BUT, now in 2009, OUR SUPREME COURT HAS SAID THIS IS ALREADY THE LAW. And here we go again with Wittes’s premise of a need for “new law” when the law as it already exists has a right answer, and the problem was that the Bush Administration (and quite frankly, the Obama Administration) decided that the law as it exists is just too darned inconvenient. And that’s the question again… is the problem “the law”… or (specifically, our conducting of) “the war”?

]]> By: Thomas Nephew https://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21113 Thu, 24 Sep 2009 01:07:25 +0000 http://thetalkingdog.com/2009/09/23/law_and_the_lon_1/#comment-21113 “Maybe the fact that we have given OBL and A.Q. their street creds by insisting that this is “a war” in the first place has been what needs changing– and what we should reconsider is not the law or the legal paradigm, but the metaphor.”
I hear you, maybe we shouldn’t wage this as a war, but maybe that isn’t in the cards any more.
First, there’s the AUMF, which seems formally adequate legal basis for saying “we’re at war.” (I think SCOTUS has explicitly affirmed this, hasn’t it?). But maybe that’s not what you’re driving at; maybe Bush et al would have done all the same things even without the AUMF.
Second, we haven’t captured OBL or Zawahiri yet, so politically it seems like unfinished business; I’m not sure the country’s ready for appearing to be calling off that effort, and I’m not sure I am either.
I’ll just pose a question here. Might it make sense to go with the “war” status — but simultaneously acknowledge the detainees to be POWs, with all the Geneva Convention rights of POWs? No mistreatment, yes Red Cross visits, etc.
Wouldn’t that clean up many concerns — even as it left open the possibility of open-ended, essentially preventive detention for some-to-many of the remaining detainees? (A secondary question: is a formal state of war necessary for a country to have POWs?)
Just asking. Great post!

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