Secular Right | Reality & Reason



Holder’s schizophrenic tribunal decision

The Bush administration never managed to shake the specious implication that military tribunals represented some unprecedented Bushian invention designed to evade justice, rather than longstanding historical practice.   I don’t understand why it failed so miserably on that count.  Yet the former administration itself anticipated the incoherent Obama-Holder policy of terror forum-shopping by trying Moussaoui in civilian court, while directing other terror suspects towards military courts. 

As much as I don’t object to the use of military tribunals during war, especially where there is risk of compromising intelligence, the underlying conceit here that (Islamic) terrorism is unambiguously war is more problematic than I once conceded.   The potentially indefinite duration of the alleged war against us, the absence of any indicia for knowing when it is over, and even the highly sporadic nature of the attacks, are just a few of the features that make the assumption that America is on a conventional war footing troublesome.  It’s a cliché to say that we need a “national conversation” about how to conceptualize terrorism and our response to it, and I suppose that the Bush administration de facto did decide—with intermittent Congressional backing–that we were “at war” with terrorism.    Still, I would like to see a more explicit debate about what that means.

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  • Uncle Kenny · November 15, 2009 at 1:25 pm

    “I don’t understand why it failed so miserably on that count.”
    Perhaps you might take a peek at this:

    And by the way terrorism is a tactic, not something one can be at war against. In order to have a war one must be able … and willing … to name the enemy. Failing that, all policies will be incoherent.

  • Aaron · November 15, 2009 at 11:55 pm

    The dichotomy of “criminality” as opposed to “conventional war” is a false dichotomy. “Conventional” war, if that means the sort that predominated in the West from the 17th century up through the first half of the 20th century, a.k.a. the modern period, is the exception in war, not the rule. For the last fifty years we’ve been back to what war usually meant to most people most of the time. This is definitely a war. Wars are usually just as Heather Mac Donald described: indefinite duration, hard to know when they’re over, highly sporadic. Read Martin van Creveld. The last thing we need is some stupid “national conversation”, or even explicit debate, if that’s taken to mean public debate. We need statesmen and jurists who understand what’s going on.

    HMD says we need an explicit debate to conceptualize terrorism. I’ll start. Here’s one thing that seems really strange to me: the right keeps saying that we’re at war, but they refer to a self-described soldier of God who attacked soldiers on an army base as a “terrorist” who committed “murder”. If we’re at war, then the attack was a guerrilla attack, not a terrorist attack or a murder. We condemn our enemies for targeting noncombatants, but then we condemn them the same way when they target combatants.

  • Aaron · November 16, 2009 at 6:23 am

    Aaron :


    If we’re at war, then the attack [on Ft. Hood] was a guerrilla attack, not a terrorist attack or a murder.

    P.S. It just occurred to me that once again I was “correcting” commonly used terminology, which is something I was recently chided for here. Hey, bad habits are hard to break. But once again, to return to the trial of Nidal Hasan, which to me is perhaps more outrageous than the proposed trials in New York: note that terminology is crucial here. If we’re at war, then Hasan should not be tried for murder. No murder was committed. Hasan should be tried for treason.

  • Mike H · November 16, 2009 at 9:49 am

    I believe the Bush administration was quite right in trying to define terrorists as something other than ordinary criminals but also something other than legitimate combatants. Fighting terrorism can take many forms, one of them being that of actual warfare but I believe the term “war” in this context is used in the broader definition as a major struggle rather than the narrow definition as used in various international treaties etc.

    I mean for one the enemy is not organized along military lines, does not usually wear uniform or other insignia that designate it sufficiently as an armed foe. Secondly they do not abide by any rules of combat and seem to often specifically target non-combatants. Given that fact it would be pure self-destrucitive insanity to afford them the gentlemanly benefits that is meant to be given to opponents in conventional war. Amongst them POW status and acknowledgment of their legitimacy as opponents.

    However there are issues with the common criminal framework as well. Namely, we are not dealing with common criminals and the stakes are much higher. The criminal justice system has often been shown its limitations when dealing even with domestic organized crime, terrorists are even harder to deal with. There is a fundamental difference as well, terrorists are specifically violent against the state and society at large and are thus antagonists of “America” as a whole rather than individuals or groups trying to evade the law for their purpose. That does give these terrorists the face of a specific political enemy who aims for destruction, not unlike the kind of enemy you’d face in a total war scenario. That alone calls for more drastic measures than civilian law enforcement and justice can enact.

    There is also the issue of what kind of leeway you can afford to give in such an instance. It’s sickening to see a criminal get away with murder in court yet even if he re-offends the damage caused is of course not going to be on the scale of 9/11 or Mumbai or Madrid. A 60 or even 75% conviction rate doesn’t really cut it when you deal with people who aim to cause maximum mayhem amongst the innocent, does it?
    Similarly as you are dealing with an organized foe who projects a certain political message globally, you also have to deal with the political ramifications of the issue and how this will impact the broader ideological struggle you are involved in. Can you afford to let a prominent Al Qaeda man get away with it in terms of the damage that does to the morale and credibility of your cause?

    It’s one thing to look at this through the prism of liberal judicial sensitivities and another to look at the realities facing us in the conflict. Let’s also not forget, the fact we even have this debate is a hallmark of a very advanced society. The natural impulse of 99% of all societies at all times would have been to torture the crap out of those guys and then think of the most brutal execution method your society has in store. We are beyond that but that doesn’t mean we have to be suicidal softies either.



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