Jeffrey Toobin's New Yorker article on the future of Guantanamo

The New Yorker's Jeffrey Toobin has a new article on the future of Guantanamo.  It features a visit to Guantanamo by Toobin, but also summarizes data developed by Ben Wittes on the characteristics of the detainees - any way to tell who is a continuing threat and who is not? - as part of his forthcoming book.  It also has a very interesting discussion on the idea of a national security court, and is nice enough to mention a conference that Steve Vladeck, Dan Marcus, Ben Wittes and I put on at Washington College of Law, American University, this past February 1, on the idea of a national security court.  Toobin attended that conference, which had an all star cast.  

The article has some interesting commentary from Jack Goldsmith and others on the possibility that the Bush administration will go back to Congress with some kind of proposal for a civilian national security court, in time for the November election.  One striking feature of the current presidential campaigns, of course, is that although everyone favors closing Guantanamo, no one wants to get very specific about what happens next.  So far as I can tell, McCain favors closing Guantanamo but continuing the military commission trials under current law.  Obama seems to favor closing Guantanamo and turning the detainees over for trial in regular federal court.  Clinton seems to favor closing Guantanamo and turning the detainees over to some kind of regular federal court trial but with perhaps some national security modifications.  I have my intrepid research assistants tracking down the candidates' statements, and perhaps will write up something for the Weekly Standard, but what seems currently to be out there is noteworthy for what it does not want to say.  

Jack G's point, says Toobin, is that the Bush administration may decide to put everyone - the candidates, the Congress, everyone - on the spot in time for the election.  That is fine with me; I have always opposed the Bush administration's assertions of executive power in this area, with the consequence of letting everyone else off the hook of accountability, and have always favored forcing everyone to raise their hands and vote on exactly and plainly US policy in so important a matter ought to be.  Toobin  implies that the Bush administration forcing that to happen with the Military Commissions Act at the moment of the fall midterm elections was a sort of cheap electoral advantage - no doubt it was entirely calculated.  But it also seems to me quite right; an election and an election campaign seems to me exactly the right moment when candidates and officeholders should be forced to stand up and be counted, whatever their views.  What better moment for accountability to the voters than in an ... election?

Thanks to Instapundit for linking to my Jack Goldsmith review in the TLS

My thanks to Glenn Reynolds here at Instapundit for linking to my review in the Times Literary Supplement (London) of Jack Goldsmith's superb The Terror Presidency.  (You can get directly to my Goldsmith review here.)

One of the things I listened to closely while writing that review was the Instapundit podcast interview with Jack Goldsmith, which I highly recommend and which you can reach at this link.

Glenn, thanks as ever! 

(And if any Instapundit readers come here after visiting the TLS, let me just say that I regard the TLS as the finest literary review in the world.  It covers a breathtaking range of subjects, its discussion of literature is unsurpassed anywhere, and if you are a student or, really, anyone looking to hone your own essay and prose style, read the TLS for models on how to write.)

Bridging the Foreign Policy Divide: Book Announcement

More use of this blog for shameless self-promotion.  The Stanley Foundation of Muscatine, Iowa commissioned during this past year a series of essays on core foreign policy issues that will matter to a new administration, whether Democratic or Republican.  Each essay is co-authored by a centrist liberal/progressive and a centrist conservative, seeking common ground across the political divide.

The essays range across many things, from the legitimate use of American miltary force to the size and composition  of the US military, nation-building and democracy, the rise of China, and many other things.  The list of contributors is stellar, and include Ivo Daalder, Francis Fukuyama, Frederick Kagan, Michael O'Hanlon, Tod Lindberg, Derek Chollet, and many others. 

The essays also include one on detainee treatment at Guantanamo in the war on terror, by yours truly and Elisa Massimino, the Washington director of Human Rights First.  Ours is titled The Cost of Confusion: Resolving Ambiguities in Detainee Treatment.

The essays have now been issued as a book, Bridging the Foreign Policy Divide: Liberals and Conservatives Find Common Ground on 10 Key Global Challenges.  It is edited by Derek Chollet, Tod Lindberg, and David Shorr (who are also all contributors to the essays).  Routledge 2007, $17.00 or so.  Out just in time for the primary season - this short collection of essays is also a very useful short text for political science or related classes.  Available at Amazon, here.

Derek, Tod, Elisa, and I did a segment on the Diane Rehm show on NPR (WAMU) last Monday, December 10, 2007, discussing the book.  Here.

US official oaths of office

It's a minor point, but Joe Klein is mistaken in his description of the presidential oath of office. Klein says, in his new Time magazine column:

As Dodd said, when the President takes the oath of office, he (or she) promises two things: to protect the Constitution and to protect the nation against enemies, foreign and domestic.

That's not actually what the Constitution says at Article II, Section 1. The required presidential oath reads instead:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

Klein appears to be conflating the presidential oath with the Congressional oath or the military oath (whether upon enlistment or the somewhat more elaborate commissioning oath) which do use the words "enemies domestic and foreign":

"I, {insert name here}, do solemnly swear, (or affirm,) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." (Note that the last sentence is not required to be said if the speaker has a personal or moral objection.)

Congressional and other oaths of office (I'm using Wikipedia here, but yes, it's correct) also are oaths of office to the Constitution, not the nation, the state, or any other entity. The Constitution specifies in Article VI, clause 3:

"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."

For other officials, including members of Congress, it specifies they "shall be bound by Oath or Affirmation to support this constitution."

At the start of each new U.S. Congress, in January of every odd-numbered year, those newly elected or re-elected Congressmen - the entire House of Representatives and one-third of the Senate - recite an oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

"So help me God" is customarily added to the end of the oath, but cannot be required as part of the oath of office in the United States. This oath is also taken by the Vice President, members of the Cabinet, and all other civil and military officers and federal employees other than the President. While the oath-taking dates back to the First Congress in 1789, the current oath is a product of the 1860s, drafted by Civil War-era members of Congress intent on ensnaring traitors.

***
Well, do these distinctions make any difference? Obviously it's a minor quibble with Klein's column. However, the larger point is more significant than one might imagine.

First, it is not accurate to say that the oath of the president, or of Congress, or of any member of the military is to protect the nation against enemies foreign or domestic. It is to support the Constitution. The same is true of the miltary oath and every other federal oath.

Earlier generations of Americans thought this was, in fact, a great distinction - the obligation to the Constitution, rather than to the "nation," was a formative part of our civic constitutional religion, something understood as separating the great American experiment from the mere passions of nation and nationalism of the countries and imperialisms of Europe. Certainly defending the Constitution means protecting the people of the United States from their enemies, but it has always meant protection in a stronger and broader sense of a certain political system embodied by the Constitution.

Second, the presidential oath of office is different from every other oath in specifically using the phrase "preserve, protect and defend" the Constitution rather than simply an oath to "support." Lincoln, in particular, believed that the difference in language, and the more pressing language of the presidential oath gave the president greater power and executive scope of action in emergency - he believed it gave him constitutional authority for at least part of his unprecedented exercises of presidential power in the Civil War.

It is noteworthy that Vice Presidential counsel David Addington - someone whom I have described as somewhere between Zen monk and thug - is painted by Jack Goldsmith in The Terror Presidency as a close student of Lincoln and a believer in the view that those additional words in the presidential oath carry a genuine distinction for executive authority.

(ps. I see Diane Marie Amann making much the same correction re the exact language of the oaths, here. Great minds, of course, naturally think alike!)

A first draft, disorganized list of questions for counterterrorism policy to answer in a new administration

I am working at this very moment on a short commentary for a law review tentatively titled (the law review does not know this yet), New FAQs for the War on Terror: Questions That Counterterrorism Policy Must Answer in a New Administration.

I am gradually developing a list of questions that constitute questions that define the policy divide on various matters of law. In no order at all - really completely disorganized - and without trying to make the language pretty or pithy, here is the beginning of the list:

Is administration detention in principle ever permissible? Or must it always come down to, as the UN special rapporteur asserted in a debate a couple of weeks ago with me at ASIL, try them in a reasonable time or let them go, and that principle transcends whatever specific, technical legal structure you employ?

Can ordinary criminal trials, without special recourse, adequately serve counterterrorism needs?

Can you use some structure for trials that is outside the existing criminal law framework?

Note that legal conservatives Rivkin and Casey oppose the move to a national security court precisely because they believe that only commander in chief authority and the law of war provide the constitutional basis not to have ordinary criminal trials. It is the conservative analogue to the position of the rights groups: they likewise do not think that you can constitutionally have special procedures even if it is "civilian."

Is waterboarding torture, or otherwise always impermissible?

In interrogation practices, does it matter what you know about the person - their degree of knowledge and culpability - - and the risk to others reasonably assessed - situational ethics, so to speak - in determining what you can permissibly do to them short of torture, however specifically defined? Are you allowed to do to KSM things, while still short of torture, that you are not allowed to do to someone about whom you know nothing?

Will the citizen (and resident alien, really) v noncitizen distinction continue to apply; and will the territorial v nonterritorial distinction continue to apply in counterterroism legal regimes?

The current administration position is that citizens cannot be subjected to illegal enemy combatant treatment. Increasingly, rational terrorist groups will seek to recruit Americans or American passport holders - the situation will come to resemble that of Western Europe, where the terrorists are "yours" - and a special legal regime premised on noncitizenship or nonterritoriality will not do what you intended when designed around Guantanamo Afghan prisoners.

Is it okay to change the legal criminal rules for CIA personnel midstream?

Ex post facto problems? Simple fairness? Consider how much of the wrangling in the Judiciary Committee has really had this as the predicate unstated.

What must and should be got from Congress, and what is the obligation of the judiciary to defer to the united political branches on counterterrorism and national security policy?

Will the judiciary defer? Heck if I know.

What is the application of international human rights law to all of this, apart from domestic US law?

How should it interact with the laws of war in the existing situation, and what about its application to the US domestically or abroad?

How should future detentions be governed?

Under what structure? Nearly all the existing regimes have been built around the "legacy" Afghan prisoners. Over time, however, new adminsitrations will almost certainly detain people who might or might not be citiziens, might or mght not be in the United States.

Most importantly at this moment - not a hypothetical category - the US is currently detaining thousands of people in Iraq, including a large number of foreign jihadis. A possibly unavoidable issue for a later administration is what happens to those jihadis whom the United States has concluded it cannot try for any particular crime but whom it cannot let go free - to go make jihad in Iraq again, or Afhstanistan or Pakistan or thailand or Indonesia or Malaysia etc. What should it do?

When will any of this get taken up in a serious way, if ever?

(And, most important, why can't I use block quotes or bullets without screwing up the letter justification on Blogger?)

KA in Weekly Standard this week on the Madrid bombing verdicts

Advertisements for myself, with apologies, but apparently not enough to deter me ... I have a short piece in the Weekly Standard, November 26, 2007, this week, on the failure of the Madrid bombing verdicts (announced on October 31) and what they suggest for the success or not of counterterrorism in ordinary criminal trials. Here at the Weekly Standard (open link).

It is remarkable to me, as I suggest at the very end, that somehow the debate among elites in the US has circled around again to the position, among academics and activists anyway, that ordinary criminal courts for counterterrorism are perfectly okay. That is not the position of any of the leading presidential candidates, of course, neither Republican or Democrats, nor is it the position of Congress when actually forced to a vote that might be one day put in front of their constituents. But it is the seeming consensus of elite opinion. I would not have believed that we would be back to arguing about the ability of ordinary courts to deal with serious counterterrorism, but at least in academic circles, that's where we are - and the disconnect between that discussion and the actual political process, the Democrats (and, we might add, the Republic of France) included, is profound. Excerpts:

***
The Failed Madrid Verdicts
Why counterterrorism trials won't work in ordinary courts.

by Kenneth Anderson

The Weekly Standard
11/26/2007, Volume 013, Issue 11

On October 31, a Spanish court handed down verdicts in the trial of suspects in the March 11, 2004, terror attack on Madrid's Atocha train station that left 191 people dead. The Madrid bombings stand alongside the 2005 London bombings as the deadliest terrorist attacks in large Western cities since 9/11. The trials following on those attacks stand as important tests of the ability of Western legal systems to deter and prevent terror via ordinary criminal law mechanisms.

The results are not promising--not with respect to punishing terrorism, let alone deterring or preventing it. Spanish prosecutors were able to secure only three murder verdicts among the 28 defendants, many of whom, although not the actual bombers, were plainly implicated in planning and carrying out the attack. And the Spanish criminal justice system is far more accommodating to prosecutors than the American system. Given the overwhelming nature of the evidence available to objective observers as to the involvement of many of the accused, the failure to secure justice once again raises serious doubts about the adequacy of ordinary criminal trials for dealing with jihadist terrorists, whether in the United States or in Europe.

Many critics of the Bush administration have reached the opposite conclusion. Noting the absence of successful attacks in this country since 9/11, they conclude that this owes little to the government's counterterrorism efforts but instead means the actual terrorist threat has been greatly exaggerated, 9/11 notwithstanding. It is therefore time, they argue, to eliminate the Bush administration's extraordinary measures, such as military commissions, detentions at Guantánamo, or warrantless wiretapping, and to relocate counterterrorism within the ordinary criminal justice system. The only acceptable approach to terrorists, many highly credentialed experts maintain, is to charge them with crimes and try them, or let them go. This may be a heroically noble human rights policy, but ordinary citizens will be forgiven if they find it criminally negligent of public safety.

By happenstance, I was living in Spain with my family at the time of the Madrid bombings, on sabbatical studying, ironically, legal responses in Europe to terrorism. Reaction in Spain to the bombings was a curious mixture of fatalism and appeasement, publicly cast as stoic defiance ("terrorists will not change our way of life") but also exhibiting a measure of collectively sticking one's head in the sand and hoping the threat would just go away.

***

Although the bombers themselves, tracked down by security forces, blew themselves up in a barricaded apartment to avoid capture, police had gathered extensive evidence on their principally Moroccan organizers, planners, and controllers. Suspects were arrested, held in investigative detention, and finally--not until three years later--tried on charges including murder, supplying explosives, conspiracy, and membership in a terrorist organization. The sprawling trial went on for months in a courtroom in Madrid. In the process several suspects were released for lack of evidence. Were it not for provisions of Spanish law allowing mere membership in an organization to be a crime, Spanish justice would have had astonishingly little to show for 191 deaths and more than 2,000 wounded, a point clearly recognized by a less than satisfied Spanish public and families of the victims.

What went wrong for Spanish prosecutors? They had to rely on masses of circumstantial evidence, including crucial telephone conversations gathered in third countries such as Italy, which were subject to lengthy debate over translation, provenance, and reliability. None of the 28 confessed. Command and control, planning and coordination, although uncontroverted by serious security experts, nonetheless was too diffuse to satisfy the properly strict requirements of ordinary criminal justice in dealing with ordinary criminals. Fernando Reinares, until recently the Spanish government's senior counterterrorism adviser and now an expert at Spain's highly respected, nonpartisan Elcano Royal Institute, remarked that the trial judge did not admit "the extraordinary mass of circumstantial evidence" that is "crucial when you are trying members of a nebulous group of international terrorists."

Convictions were obtained on lesser charges, for most defendants, while others were acquitted for lack of evidence. These mixed convictions send the message to Western observers that justice was heroically impartial. If, instead, one accepts the reasonable assessment that most of the defendants were guilty (including guilty of the murder of 191 people), but that the legal system was incapable of showing it within its own highly circumscribed terms, then the message to jihadist observers is that they can game the system. Crucial to that is keeping legal accountability for jihad within the strict terms of ordinary Western criminal justice, designed for ordinary criminals committing ordinary crimes--circumstances in which punishment is an important element of deterrence, and people do bad things for reasons of personal passion or gain, not for God and the promise of heaven.

Disturbingly, these failures for prosecutors occurred in a legal system far more flexible and prosecutor-friendly than the American system. Spain allows a judge to consider hearsay evidence, for example, and effectively whatever evidence the judge considers of adequately probative value. More remarkably, it is a system that allows incommunicado detention of suspects for up to 13 days--a shocking provision, by American standards. Moreover, the Spanish conception of pretrial detention is so loose as to begin to resemble administrative detention--most defendants had been held for years before they were finally tried. The Spanish criminal code permits mere membership in an organization deemed terrorist (rather than actual acts and participation) to be criminalized. It is highly unlikely that American prosecutors (despite what they sometimes naively say) could have done better, given an American criminal justice system that is far more generous to defendants.

So the Madrid verdicts stand as a warning that ordinary criminal justice is not necessarily capable either of ensuring public safety or even of doing justice in serious terrorism cases. Prime Minister Zapatero solemnly announced afterwards that "justice has been done," but he could not mean that in substance--only that the procedural rules of a judicial system gamed by the jihadists had been followed. The Elcano Royal Institute's Reinares remarked, more accurately, that Spanish courts would have to change their rules of evidence if the country was to defeat Islamic terrorism, because jihadist terrorism "leaves a different kind of footprint" that conventional criminal justice cannot adequately process.

Meanwhile, the debate in the United States comes down once again to this same question of whether ordinary criminal justice can keep Americans safe and bring real justice to those who, in fact, commit violent jihad. It is remarkable and dismaying that the argument has circled back yet again, for the evidence that it can, looking to Madrid, is no better now than it was when many of us thought the question had been definitively answered in the negative--on 9/11.

Kenneth Anderson is a member of the Hoover Institution task force on international security and law, and a professor at American University, Washington College of Law.

The 'new conservative realism'?

I have been writing off and on about a sort of "new liberal realism," urging accommodation and containment of dictators, and ultimately saying not only that bringing down Saddam was not worth the price in US blood and treasure, but that Saddam was, on balance, better than Iraq without Saddam. I have not, to say the least, been very happy about this new conventional liberal wisdom, and I've sharply criticized it here and here and here (these are all free downloadable pdfs at SSRN).

But there seems to me emerging among the conservative think tankers and pundits a kind of "new conservative realism" that is different from either Baker-Scowcroft realism or the neo-con "idealism is the new realism" that in part fueled the Iraq war. I am not quite sure of its contours yet, or precisely what I think about it, in fact. But it seems to be partly captured by this op ed in the Washington Post by Charles Krauthammer, here, Friday, November 16, 2007. Excerpts:

***
[T]he strength of alliances is heavily dependent on the objective balance of international forces, and has very little to do with the syntax of the U.S. president or the disdain in which he might be held by a country's cultural elites.

It's classic balance-of-power theory: Weaker nations turn to the great outside power to help them balance a rising regional threat. Allies are not sentimental about their associations. It is not a matter of affection, but of need -- and of the great power's ability to deliver.

What's changed in the last year? Bush's dress and diction remain the same. But he did change generals -- and counterinsurgency strategy -- in Iraq. As a result, Iraq has gone from an apparently lost cause to a winnable one.

The rise of external threats to our allies has concentrated their minds on the need for the American connection. The revival of American fortunes in Iraq -- and the diminished prospect of an American rout -- have significantly increased the value of such a connection. This is particularly true among our moderate Arab allies who see us as their ultimate protection against an Iran-Syria-Hezbollah-Hamas axis that openly threatens them all.

It's always uncomfortable for a small power to rely on a hegemon. But a hegemon on the run is even worse. Alliances are always shifting. But one thing we can say with certainty: The event that will have more effect than any other on the strength of our alliances worldwide is not another Karen Hughes outreach to the Muslim world, not an ostentatious embrace of Kyoto, or even the most abject embrace of internationalism from the podium of the UN. It is success or failure in Iraq.

Speaking at SAIS with Geoff Loane, ICRC, and Ruth Wedgwood on counterterrorism and Guantanamo into the future

Ruth Wedgwood, professor at SAIS and director of its international law program, invited me to join Geoff Loane, the head of delegation of the ICRC here in DC, to speak at a program on counterterrorism, legal issues on detention, and Guantanamo. Geoff is one of my favorite people, and I always enjoy both seeing him and being on a program with him; likewise Ruth. So I was delighted to do it. CSPAN ran it, and it should open at the link here. It is dated November 12, 2007, titled SAIS discussion on Guantanamo and the conflict with Al Qaeda. It opens in realplayer.

US policy toward Pakistan-in-turmoil: Steyn & the WSJ

Like everyone else, I've been trying to sort out the best approach for US policy toward Pakistan. The two most useful takes - I am not saying I agree 100%, still talking with people, reading and thinking about it, as unfortunately I have been for years now - are Saturday, November 10, 2007 WSJ editorial, here (open link for the moment), and Mark Steyn's syndicated column from Saturday, November 10, 2007, here, in the OC Register.

Excerpts from Steyn:

***
Everyone's an expert on Pakistan, a faraway country of which we know everything: Gen. Musharraf should do this; he shouldn't have done that; the State Department should lean on him to do the other.

"It is time for him to go," pronounced Rep. Dana Rohrabacher, R-Huntington Beach. Every foreign policy genius has his Hollywood pitch ready: "If we're not careful, we're going to see the same thing happen that happened in Iran," warned Dan Burton, R-Ind. Pakistan 2007 is a remake of Persia 1979 with the general as the shah, etc.

Well, I dunno. It seems to me a certain humility is appropriate when offering advice to Islamabad.

Gen. Musharraf is – as George S. Kaufman remarked when the Germans invaded Russia – shooting without a script. But that's because he presides over a country that defies the neatness of scripted narratives. In the days after 9/11, George W. Bush told the world that you're either with us or against us. Musharraf said he was with us, which was jolly decent of him considering that 99.9999 percent of his people are against us. In the teeth of that glum reality, he's rode a difficult tightrope with some skill.

As John Negroponte, U.S. deputy secretary of state, put it, aside from America "no country has done more in terms of inflicting damage and punishment on the Taliban and al-Qaida since 9/11" – which, given the proportion of the population that loathes America and actively supports the Taliban and al-Qaida, is not unimpressive.

Nevertheless, in Washington and the media, the assumption is that the wheel has now come off Musharraf's highwire act. Time for Pakistan to go back to democratically elected unicyclists, like the charming and glamorous Benazir Bhutto, who plays note-perfect in the salons of the West but degenerates into just another third-rate hack from one of the world's most corrupt political classes once she's back greasing the wheel in Pakistan itself.

Furthermore, confident believers in the usual dreary pendulum of Pakistani politics – corrupt democrats, followed by authoritarian generals, followed by corrupt democrats – overlook how profoundly the country's changed. Its political dynamic has a new player: Islamism. Miss Bhutto says, oh, don't worry about that, it's a lot of hooey cooked up by Musharraf to persuade Washington to prop him up for another half-decade.

Really?

Pakistan is both a nuclear power and a nation that cannot enforce sovereignty over significant chunks of its territory. Large tracts are run by the Taliban. The organization responsible for perpetrating the bloodiest assault ever on the U.S. mainland is holed up there and all but untouchable. The air routes between Karachi and Heathrow, Birmingham, Manchester and Glasgow are the vital conduit between the jihad's ideological redoubts and the wider world.

What do the perpetrators of the Daniel Pearl beheading and the London Tube bombing and the thwarted martyrs of innumerable other plots all have in common? Pakistan.

Fritz Gelowicz, arrested a few weeks ago in Europe, is an ethnic German who converted to Islam and graduated from a Pakistani terrorist camp. Unlike Britain and Canada, Germany has no longer-standing imperial ties with Pakistan, yet a ramshackle economically inconsequential basket-case of a state now has ideological converts in almost every corner of the world.

Mohammed Umer Farooq is a conventional first-generation moderate immigrant to the West who serves happily as pharmacist at the Princess Patricia's Canadian Light Infantry base in Alberta. By contrast, his daughter Nada Farooq says she "hates Canada" and was involved in a plot to behead the prime minister. In North America, Britain, Scandinavia, Australia and Pakistan itself, elderly grandparents who practice the Indian subcontinent's traditional Sufi Islam have seen their grandchildren embrace hard-line Deobandi Islam, essentially a local variant of Wahhabism … and then sell its virtues to pasty-faced white blokes with names like Fritz.

The Bhuttos and the Sharifs, their sometime rivals, sometime allies of convenience, couldn't run the country competently before it got hollowed out by the radicals. But the experts assure us they're now the answer to the woes of a nuclear powder keg.

Pakistan is not Persia. For one thing, it's a country only 60 years old whose slapdash creation was one of the worst disasters of British imperial policy. Yet even those who thought so at the time would be astonished to find that, a mere couple of generations later, a regional afterthought is not only a nuclear power that has dispersed its technology around the planet but also a driving force of the world's first global insurgency. If Gen. Musharraf is shooting without a script, what would you do if stuck in a toxic soap opera where the incoherent plot twists pile up with every passing decade?

It may well be that a Bhutto restoration will be the happy ending that foreign-policy "realists" predict. But it's more likely that a return to traditional levels of democratic corruption will cramp the economic interests of much of the military and lead key factions to make common cause with the Islamists – as Pakistan's intelligence service did with the Taliban. I don't know for sure, and nor does anyone else. But sometimes it helps to bet on form. And, given the past 60 years, the real question is how bad things will be after Musharraf. This thing can't be scripted, in Washington or anywhere else.

Stuart Taylor on waterboarding and torture

At bottom, I agree with Stuart Taylor at the National Journal on the issue of waterboarding. Article is up for the moment at the National Journal, here, but it will disappear at some point. Excerpt, from National Journal, Monday, November 5, 2007, Opening Argument, "Mukasey and the Slippery Pols":

***
It is especially telling that the main congressional objection to Mukasey has been his unwillingness to declare illegal an interrogation technique that Congress itself has assiduously and repeatedly declined to declare illegal.

The technique, called "waterboarding," involves simulated drowning. Congress could seek to explicitly ban it, along with other highly coercive techniques. It has not done so, because it does not want to take the blame for any future terrorist attacks that might have been prevented by highly coercive interrogation.

The attacks on Mukasey are an exquisite example of Congress's penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.

Some factual context:

Our government has not used waterboarding since 2005, according to news reports, and seems unlikely to use it again soon, if ever.

Before suspending the practice in 2005, the CIA reportedly waterboarded three (and perhaps only three) people, all of them Qaeda terrorists deemed highly likely to have potentially lifesaving information.

The Bush Justice Department has repeatedly found at least some forms of waterboarding to be legal under the narrow but vague 1994 and 2005 laws defining, respectively, the crime of "torture," and "cruel, inhuman, or degrading" treatment.

***
But, one might reasonably ask, isn't torture by CIA interrogators already a crime? And isn't waterboarding a form of torture? The answer to the first question is yes, under a 1994 criminal law implementing the U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The answer to the second question is more debatable.

Of course, being strapped to a board with a cloth over one's face and enough water running over one's nose and mouth to create the sensation of drowning sounds horrible and has been deemed illegal in various contexts by past administrations. But not every interrogation practice that sounds horrible or has been deemed illegal in some contexts clearly meets, in all contexts, the vague but narrow definitions embedded in the 1994 ban on "torture," or in the December 2005 McCain amendment's ban on "cruel, inhuman, or degrading treatment or punishment."

The 1994 law defines torture as including only practices "specifically intended" to inflict "severe physical ... pain or suffering" and certain other practices that cause "prolonged mental harm" (emphasis added). Under this definition, deliberately inflicting pain that is not quite "severe," or mental harm that is not quite "prolonged," is no crime.

To be sure, the 1994 definition is not so narrow as to justify the claim that only the pain associated with "death, organ failure, or serious impairment of body functions" would qualify as "severe," as the Bush Justice Department asserted in an infamous, now-repudiated August 1, 2002, memo. But the definition is certainly narrow enough to leave room for doubt whether it would be torture to waterboard a high-level terrorist for, say, 15 seconds. Indeed, U.S. military and intelligence agencies have reportedly waterboarded their own people as part of their training on how to resist interrogation.

Nor is it clear that all forms of waterboarding violate the McCain amendment's provision specifying that the ban on CIA use of "cruel, inhuman, or degrading" treatment (called "CID") extends worldwide. The amendment, passed amid much discussion of waterboarding, limited military interrogators to the list of relatively mild, traditionally approved interrogation methods in the new Army Field Manual, which prohibits all physical coercion.

But Congress quite deliberately chose not to limit the CIA to those methods, and thus tacitly gave the CIA approval to use unspecified forms of physical coercion. Moreover, Congress defined CID as limited to forms of coercion that would violate certain provisions of the Constitution, which the Supreme Court has held to prohibit only practices that "shock the conscience." The case law suggests that whether various interrogation practices shock the conscience depends on the importance and urgency of the information likely to be obtained and "exact analysis of [the specific] circumstances."

Waterboarding and some other highly coercive techniques would shock my conscience if used routinely or frequently on terrorism suspects. That's why I believe that, once confirmed, Mukasey will issue a legal opinion effectively banning waterboarding as CID in almost all circumstances.

But should Mukasey rule that waterboarding is always illegal? Even in the cases of those very few, if any, detainees who seem highly likely to have potentially lifesaving information? And even if it were done under rules requiring high-level, case-specific approval and prompt disclosure to the Intelligence committees? I don't think so.

Human-rights activists and some experts claim that all highly coercive interrogation techniques shock the conscience because they are virtually useless in eliciting valuable information. But other, perhaps better-informed, experts are quite convinced that coercive interrogation has saved lives. Former CIA Director George Tenet, for one, told CBS's 60 Minutes in April that what Bush calls "enhanced" interrogation "is worth more than [what] the FBI, the Central Intelligence Agency, and the National Security Agency, put together, have been able to tell us" about terrorists' plans.

***
Notice that one central issue here is the question, raised several years ago on this blog, as to whether there is ever any room for situational ethics in the assessment of what may be done in interrogation. Specifically, I argued a couple of years ago that (a) torture, whatever that was defined to be, is always illegal, all times and all places and all persons, but that (b) coercive interrogation techniques short of torture might be permissible depending upon what you knew about the person under interrogation.

That is, if you knew for a certainty that you had KSM and knew to a certainty his role, one was entitled to do things to him, still short of torture, that one would not be permitted to do to someone about whom you knew nothing. I argued that as a matter of both consequentialist knowledge and deontological culplability; this was disputed by many serious people, including the very serious moral and legal philosopher David Luban. My point now is to observe that this situational relativization is precisely what is argued above in the "shocks the conscience" standard - it depends what you know about the person, the level of reasonably known culpability, and what is at stake prudentially, eg, thousands of lives.

Congressional Democrats, certainly including Hillary Clinton, understand this, which is why they seek to hem and haw so much, while ultimately seeking to evade responsibility. It has been incomphrensible to me why the Bush administration has wanted to absorb all the body blows on these topics rather than share the responsibility with Congress, when it should have forced Congress to step up to the plate on where it would draw the lines on security and civil liberties.

ASIL discussion with Martin Scheinin, UN HRC special rapporteur on human rights & counterterrorism

The American Society of International Law (ASIL) hosted a lunch discussion today in which Martin Scheinin, the Finnish human rights scholar, and UN HRC special rapporteur on counterterrorism and human rights, presented the recent findings of his mission to the United States. I'll post up the links later on. I was the commentator, and found it to be a useful discussion - I hope he did as well. ASIL has been doing an increasing number of these under its new executive director Elizabeth Andersen, and I think they are a successful and useful format for discussion. A number of old friends were there - Edwin Williamson, Roy Gutman, Cristina Cerna, Michael Noone, numbers of people from DOS - the audience had many good questions. I'll post something later on this post about the substance; I'm about to fall over asleep.

Matthew Waxman on closing Guantanamo in the Washington Post

Must read article in the Sunday, October 28, 2007 Washington Post Outlook section by Matthew Waxman, formerly of the State Department, Defense Department, and NSC over the years of the Bush administration, and now a professor at Columbia Law School and my good friend and co-member of the Hoover Institution's new task force on national security and law. Here at the Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2007/10/26/AR2007102601761.html. (I'll have to fix the link later - this is the right URL, but for some reason I'm not able to embed the link.)

Matt offers a sober assessment of what can be considered for future detention policy for the United States. He sees a way forward to get beyond Guantanamo but, unlike the activist community and pretty much the whole academic community, understands perfectly well that there are people that the US government cannot and will not release, nor can it try them in regular criminal courts - and it does not matter whether it is a Republican or Democratic administration - moreover, the policy issues include not merely the "legacy" prisoners currently at Guantanamo, but the fact that the United States will detain people in the future that it will not release but willl not try in ordinary criminal courts. Matt is one of a handful of people - many of them on the Hoover task force, but rapidly expanding across many political and policy lines - trying to figure out something that represents the right balance between liberties and security. This is the kind of realistic, forward-looking thinking that is urgently needed now for figuring out what counterterrorism policy should look like in a new presidential administration. This is a highly, highly recommended article.

***
Excerpts:

President Bush has said publicly that he would like to see Guantanamo Bay closed, if he could do so without putting Americans in greater danger. He can, and he should. My experience advising former defense secretary Donald H. Rumsfeld and Secretary of State Condoleezza Rice on these issues has convinced me that there's a way out, but it will take some painful truth-telling to get there. For even if Guantanamo Bay could be defended in legal or moral terms, it still hurts us more than it helps us in battling al-Qaeda.

I'm not trying to challenge the improvised decision to create Guantanamo Bay's detention site in 2002. Rather, I want to challenge its continued operation in 2007. Fair-minded people can differ over whether the Bush administration was justified in sending suspected al-Qaeda fighters there immediately after Sept. 11, 2001, but as time wears on, it's almost impossible to argue that the prison is keeping us safer.

To solve our Gitmo problem, we need to understand it better. Unfortunately, amid all the rhetorical heat, Guantanamo Bay's defenders and detractors have gotten carried away. For example, the soothing notion among some critics that everyone at the prison is an innocent bystander erroneously swept up in post-9/11 dragnets is a fantasy. But so is the Bush administration's dogged insistence that all the detainees there are the "worst of the worst." Some of them should never have been there (including several supposed jihadists turned over for bounty based on assertions that later proved flimsy), and such imprisonments have had tragic and dangerous consequences.

Likewise, the administration's critics are wrong to assert that we no longer gain valuable intelligence at Guantanamo Bay. But we should not exaggerate the value of the current information-gathering there either, which often comes from detainees who haven't been involved in terrorist plotting for years now. And while the improved general conditions I repeatedly saw are humane by the standards of U.S. and European prisons, Guantanamo Bay's defenders hurt their own credibility when they refuse to acknowledge the well-documented abuse that has occurred there.

***
What to do? It's easy to demand that the prison be closed, but it's hard to figure out what to do with the most dangerous detainees there, such as Khalid Sheik Mohammed, the mastermind of the 9/11 plot. And even if we agree that we shouldn't use Guantanamo Bay as a long-term detention site, we still need to work out what sort of system could hold large numbers of terrorist operatives rolled up in ongoing or future campaigns against al-Qaeda.

Simply returning all the detainees to their home countries (such as Yemen, Syria, Egypt and Pakistan) is no answer. Some of these nations won't take them; some would probably mistreat them; others might even release dangerous militants.

Prosecuting the Gitmo detainees for crimes in U.S. courts isn't a panacea either. Criminal prosecutions should be carried out whenever possible, but the evidence against a particular suspect often can't be presented in open civilian court without compromising intelligence sources and methods. Or the evidence may not be admissible under U.S. criminal law rules.

So the best way to close Guantanamo Bay lies somewhere in between: transferring many of the detainees to their home countries, sending some to third countries and bringing the remainder -- including those who would be prosecuted for war crimes -- to secure facilities in the United States. They would be held in military facilities, like those that already kept suspected American terrorists such as Jose Padilla, or in ultra-secure federal prisons such as the one that holds Ramzi Yousef, the architect of the 1993 World Trade Center bombing.

***
Still, Guantanamo Bay is only the immediate manifestation of a much larger problem. For the foreseeable future, the United States and its partners will continue to capture suspected operatives of al-Qaeda and other terrorist groups. We need a durable, long-term framework for handling detainees -- one that lets us hold the most dangerous individuals and collect intelligence from them (including through lawful interrogation), but also (unlike Guantanamo Bay) has rules and procedures that are politically, legally and diplomatically sustainable. Neither U.S. criminal law nor the international laws of war were built to deal with networks of terrorists stretching across continents and bent on appalling carnage. So the United States, along with its closest democratic allies, ought to craft rules that are.

To get there, we should move beyond the debate between those who say that only traditional habeas corpus rights to a fair hearing can sort out these cases and those who say that noncitizen enemy fighters captured abroad in wartime have never been entitled to their day in court. We'd all be better off forging a broad agreement about the minimum acceptable conditions for any long-term detention process, firmly within the rule of law. These should include periodic reviews by an independent judge of the factual bases for a detention, under clearly legislated standards, and meaningful chances to challenge those premises with the assistance of lawyers. It's almost impossible to perform judicial review in combat zones, so we may have to make careful exemptions there. But any system without these features will lack legitimacy at home and abroad.

Both of these proposals -- shutting Guantanamo Bay and establishing robust judicial review of detentions -- carry risks. But those risks should kick-start the discussion, not end it. Detention policy is not about eliminating dangers, but about balancing and managing competing dangers. And keeping Gitmo open -- sapping U.S. prestige, alienating our allies and handing al-Qaeda a propaganda tool -- carries downsides, too ...

Overinvestment in counterterrorism?

Benjamin Wittes, in his outstanding Policy Review article on counterterrorism and law, here, begins by saying that if you are serious - serious, mind you, not just someone reciting a verbal formula - about counterterrorism, you have to accept tradeoffs of security and liberties. And if you are a civil libertarian who does not, well, congratulations on the purity of your principles, but this article and national policy really can't engage with you.

Jack Goldsmith's The Terror Presidency starts from a somewhat similar assumption - not saying that his book won't engage with you, but beginning with the assumption that people will instinctively understand and empathize with the position of national leaders who are indeed concerned for constitutional liberties and order, but must grapple from day to day with threat assessments, daily intelligence briefings offering parades of possible but uncertain horribles, and an enormous sense of responsibility to ensure that our national, state, and local governments do not back into the complacency of the years leading up to 9-11. To make sure, as Bush told Ashcroft, that this never happens again, period.

What The Terror Presidency does not address - it mentions, but does not really answer - is the increasingly common view among American (and other global) elites that the United States has elevated the threat from terrorism far above its actual value. Jack mentions James Fallows and others who remark that the automobile death rate in the US is something like 40,000 annually, so what's the big deal about terrorism? The Terror Presidency remarks on that view toward the end of the book, and notes that as Americans generally become more complacent about terrorism - ironically and dangerously, free to become individually complacent because they believe that government is not being complacent - this purely pragmatic, by the numbers argument becomes more and more conventional wisdom among elites. But the background assumption of The Terror Presidency is that the book's readers will understand and think it right that American officials will be in a "harrowing" position of seeking ways under incomplete information for keeping America safe, and that this inevitably result in actions based around false positives.

Like Ben's article, if you don't share that assumption - either on the Kantian purist rights argument that, though the heavens shall fall, etc., no tradeoffs, or on the by the numbers consequentialist position that we're overinvested in counterterrorism - the book will have trouble reaching you on its core, most fundamental point about counterterrorism necessarily as tradeoffs. You will have many other reasons for finding it fascinating and insightful, and a great narrative read about life inside the Bush administration on the core issue at a key historical moment - but the fundamental argument of the book won't actually engage you. This seems peculiar to me - a deep indictment, in fact, of our elites, frankly - but I think it is where we are at currently. Counterterrorism as intelligence work let alone as war is in the position, once again, of having to justify, not its existence but certainly its place at the top of the many priorites of government.

To be careful in putting this. The by the numbers argument is sometimes offered as a truly naive position that essentially says, as long as there is some other thing - automobiles, malaria, inner city murder, etc. - which on the margin produces more deaths or reasonably anticipated deaths than terrorism, then we are overinvested in counterterrorism. This, of course, is not very bright and smart people don't hold that position. But the serious position of overinvestment in counterterrorism is that the proper level of investment is ... that which matches the level of seriousness as measured in the "market," so to speak, of bad things we seek to prevent that involve human intention and agency, viz., criminal law. Counterterrorism should be proportionate to the threat, and the threat is essentially no more than other kinds of serious forms of organized crime leading to murder and destruction. It deserves the serious attention, in other words, of a very devoted and well funded and well organized criminal law effort - the devoted attention of prosecutors, police, FBI, etc. and even perhaps some special criminal laws to get at these kinds of crimes - but anything more, in the way of wars, surveillance that alters existing rights regimes, etc., is in fact disproportionate to the threat and represents overinvestment in counterterrorism.

Note that these are two different kinds of objections to the tradeoffs in counterterrorism; one is Kantian morality and the other pragmatism. Much of the argument so far has centered on the former, but it is the latter that, I think, is gradually gaining ascendency. Interestingly, although Judge Posner calls for a "probabalistic" analysis of the tradeoffs between security and liberty in the calculus of policy, he does not directly take on the claim that going beyond the criminal justice model inside the United States is disproportionate to the probable threat. (This is in his new book, Counter Terrorism: Blurred Focus, Halting Steps, Rowman and Littlefield, 2007, in the Hoover policy series.) He clearly would not accept the claim, since the argument of much of the book is that we are overinvested in judicialization of counterterrorism, at the disastrous cost of not having sufficient resources in intelligence gathering domestically. But the book does not address the more radical skepticism, that we're overinvested in counterterrorism, period, if one really looks hard at what the threat presents. I don't think this is how the American public sees things; it is probably in the position I mention above - ironically complacent about terrorism precisely because it believes government is being proactive - but I do think it represents the emerging view of elites.

But policy positions on counterterrorism will increasingly, I believe, have to address the pragmatic overinvestment argument. There are ways to do so, of course, and someone like Judge Posner would likely consider them too obvious to require mentioning. It is not simply that terrorism is not deterrable by the threats posed by the criminal justice system or that the criminal justice model offers a far higher level of protection to criminals who pose only modest risks to larger society that we do not think are constitutionally required or prudent to offer to criminal terrorists who threaten undeterrable and graver damage. Those and other objections to the primacy of the criminal justice system as counterterrorism do not get at the depth of the skepticism here - the skepticism is to doubt that terrorism creates risks that are in fact so very different from those of ordinary criminals - certainly not "existential" in the sense of the country as a whole. The most obvious existential threat lies in terrorism employing weapons of mass destruction but there is little, so the argument goes, evidence that WMD is that easy to get or to use, and so the real threat is "ordinary" terrorism. Even 9-11 did not cause the national heavens to fall, just a couple of large towers in one city, and a couple of thousand dead. Even if you add in Madrid, London, Bali, etc., it doesn't amount to something worth changing our lives over - globalization and mobility of people in the 21st century produce these costs, and they simply have to be managed. They can't be defeated in any case. In a word, the Western European attitude toward terrorism - management. Only very foolish right wing Americans would think it can be defeated, and it has defeated us if we have to change our lives in relation to it.

I don't think this is at all right. It does not take into account the indirect costs of terrorism - which in the case of terrorism always are more important than the direct effects, and that is the point, to leverage violence and its threat across a whole population. I suppose one can tell the population that some small percentage of airplanes fall out of the sky anyway, and adding terrorism to the list of causes isn't very significant; air travel is still pretty darn safe. Don't be irrational in your risk assessments. But it does succeed in changing people's lives, and in altering the economy, and in altering their perceptions of government - the response from government is, our problem is not to keep you safe, but to educate you in understandng that your personal risk is very small? Moreover, from the standpoint of ordinary Americans, what changed their lives was not our response to terrorism, but terrorism itself, and they want government to change it back. The pragmatist argument has the weird effect - altogether common in any treatment of Islamism - of treating the problem as entirely what we do, rather than what they do or did to us. The dangerous and narcissistic self absorbed consumers of advanced democracies, as Mark Steyn has repeatedly noted; hey, but enough about those crazy jihadi terrorist guys, let's talk about me!

And this is strategically dangerous - a large reason transnational jihad has got where it has got is from the strategic blindness toward dealing with it early on. The pragmatic approach, precisely because adopts a view that seems "efficient" because it operates on the margin, turns out to be dangerously "tactical" and shortsighted in its approach. It fails to take a "strategic" and long view of what actions on the margin do in relation to the jihadists' calculations of the long term. It has already been noted that they think long term while we think short term; they think strategically while we, whatever we actually think, act tactically; our thinking is always about us rather than about them in the sense that game theory might tell us to look at their strategies and not merely think about ourselves. We might have a different sense of strategy than merely serial actions taken as though independent of each other exclusively on the margin if we thought about how they interpret our supposedly efficient margin-based actions. (There's nothing new about this argument, either the argument or the response, of course - it's just put here in a little bit of efficiency lingo.)

Walzer noted that a crucial moral feature of war is that aggression by one side coerces the other side to act other than how it would; this is the tyranny of war. The same, of course, is true of terrorism - and it is the coerciveness which is its strategic point. The tradeoff for a political system is to tell its citizens that as best as possible they should not alter their lives in relation to the terrorist threat - but that the state will deal with the threat.

(If one believes, as a factual matter, that the threat cannot be defeated, well, that is another argument - also a pragmatic skepticism, but a somewhat different one from the "you're taking it too seriously" argument, although the two feed into one another.)

There are, in other words, important responses to the pragmatist argument. Jack's book starts from the assumptions of the vast majority of Americans, complacent though we may be. Dick Posner's book deals pragmatically, but does not go back that far into skeptical pragmatism. But I think that increasingly the sophisticated argument for quietism will come from a pragmatic, rather than moral rights, kind of argument.

Piano music I like while reading counterterrorism books

... while re-reading (blue pen, red pen, yellow highlighter, and post-it plastic tabs) Jack Goldsmith's utterly engaging The Terrorism Presidency and Judge Richard A. Posner's sober and sobering Countering Terrorism:

Domenico Scarlatti, Keyboard Sonatas, 1685-1757 (Mikhail Pletnev, piano). Like a broken string of pearls scattering across a polished floor, as I seem to remember one Scarlatti contemporary describing them.

Handel, Suites for Keyboard (Keith Jarrett, piano). This is by far my favorite album of piano music, ever, I think. Partly it is the music - I have the Ur-text editions and often play along with the bass line on my cello, to the household's great unhappiness. But it is also Keith Jarrett's delicate, moving without ever getting schmaltzy, reading of the pieces. I've listened to the CD hundreds of times.

US military-civilian relations, Glenn Sulmasy and John Yoo's new article, and a solicitation of reader views

Glenn Sulmasy, JAG and law professor at the US Coast Guard academy, and John Yoo have published a new article in the UCLA law review, "Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror," 54 UCLALR 1815 (August 2007). (Thanks Andrew for the link.) (I've cleaned up some grammar and added some bits.)

Let me say at the outset that I am not concerned in this post with views on John Yoo, his work in government, the torture memos, or his views of executive power. I am not particularly concerned in this post with rational choice theories, either (I myself don't especially agree with their application in this article). It is not the theoretical account or answers Sulmasy and Yoo give - with apologies to the authors - that seems to me important here.

This article should perhaps be read as the public opening of a debate, within the legal academy and I hope more broadly, over a fissure (fissures, more exactly) that might be thought to exist under the surface of civilian-military relations. I think that I, at least, have been informally seeing some indication of this since even before 9-11 [added: ;others might well think, as Alan Kaufman does in the comments, that this is not really the case and even perhaps, KA speaking again and not Alan, that John is extrapolating too much from his personal experience in the Bush administration being opposed by military lawyers]. Still, I will say that in my work as a professor with a number of students going into the JAG, but even before, as a NGO person who had worked extensively with (and frequently against) many US military lawyers both junior and senior on various law of war issues such as landmines, etc., over several decades, I long had the strong but anecdotal impression that there were odd gaps between JAG culture and the rest of US military culture, and various strains and strands within JAG culture itself. I did not pay it much mind in earlier years, figuring this had always been true in the military. I also didn't pretend to understand it within military culture.

But 9-11 caused me to pay much closer attention, as various controversies in the war on terror brought these and new strains much closer to the surface. Not ever having been in the military or JAG, I have never had confidence in my ability to analyze these relationships. I don't now. but I do think now that they are of sufficient public importance that they need to be taken up by the general intellectual community. Perhaps I am wrong about their importance and overestimate the actual controversies and fissures, and perhaps John is simply extrapolating too much from his own experience; I solicit your views on this below. But first let me make a few more not-very-well organized comments and offer two excerpts from the article.

I always thought, on the one hand, that the professional military lawyers were substantively right in their initial conclusion, contrary to Gonzales' White House counsel's office, that the Geneva Conventions applied. I don't think the administration's civilian lawyers, in the first flush after 9-11, understood that their professional military lawyers were not saying that captured Al Qaeda would be POWs, but instead merely that if the administration treated the attack as war, then the overall regime of the laws of war of course applied - with the result that under GC3, Al Qaeda would turn out to be unprivileged belligerents or unlawful combatants. Some highly experienced law of war experts inside the military would eventually conclude (following the "gap" argument about GC3 and GC4) that they should be treated instead as spies and saboteurs under GC4, but no one so far as I know suggested that they would be POWs, and the White House lawyers did not have the background knowledge really to understand that (the role of David Addington in this debate is unknown to me, but I do wonder). (Possibly I am wrong about that and there were professional laws of war lawyers in DOD arguing that they were POWs who could then be tried - so far as I know, however, although perhaps some later reached that conclusion as they became unhappy with what military commissions gradually turned out to be, it was not the initial advice from DOD lawyers.)

My impression, in any case, of the White House counsel's office was that rather than calling the professionals at DOD, its lawyers started flipping through the Geneva Conventions for the first time in their professional careers. I know some of these lawyers and have great respect for them, but I think they reacted quite wrongly in thinking that they could quickly come up with the necessary expertise and sound practical judgment. I was appalled that senior Pentagon lawyers were so thoroughly sidelined by the adminstration. The administration and the country paid the price for that - and still are.

On the other hand, I have been surprised and dismayed by the public vehemence with which some JAGs have fought the very idea of military commissions - highly invested, as Jack Goldsmith observes in his new book in the arena to which they are accustomed as criminal lawyers, the Uniform Code of Military Justice, and seeking and finding support among NGOs, military law groups, and other places outside the structure of government. I have been particularly astonished, although perhaps I should not be, at the extent to which - in my anecdotal experience, to be sure - some JAG defense lawyers have bonded with the various and often times altogether radical civilian and NGO defense groups for Guantanamo detainees. And let's be blunt; there are also post-JAG career issues here, too - these all merge with strongly held, sincerely held moral views about the rule of law and how trials should proceed that can sometimes condition one's fundamental identity, as a lawyer and a JAG.

Maybe that's a good thing, not a bad thing - I am not here judging it, because I do not have a clear sense of how a military lawyer's professional roles interact in every way. But I do think it bears talking about it if people think it is something that is occurring in the interaction of the JAG and the war on terror. Maybe it isn't, not really, or maybe it has long been an accepted part of the professional role of JAG officers as lawyers - still, speaking as an outsider, the current alliances, interactions, and public exposure are all really, really different from anything I ever saw in my interactions with the JAG working in NGOs. I have likewise been struck by how much certain JAG defense lawyers seemed to have internalized the use of media as a defense tool, even within an altogether different military system, and even in ways that deliberately politicize issues, to the point of making them quite nakedly anti-administration and OJ-defense-team-like.

I realize and acknowledge this represents these lawyers' deep moral concern that the Bush administration's approach to these cases was simply and unacceptably wrong. I respect that conviction, but am not entirely sure (and am not persuaded that this article presents the right answer; I have doubts that rational choice theory offers the right answer) how a military officer as well as officer of the court and defense counsel should respond in such circumstances. [Added:] One thing I am certain of, though - while being quite unclear about professional responsibility and military lawyering generally - is that criticism implicit and explicit in the article about scholarly writings by military lawyers is wrong; I thought, for example, that Charles Dunlap's 1990s article about the politicization of the officer corps leading to a coup in the form of a fictitious letter was both an outstanding and unusual piece of scholarship, and an entirely appropriate way in which an intelligent, professional, thinking officer corps and its lawyers need to discuss in a scholarly way rising issues, including those that go to professional formation and values.

It was interesting to me, too, that an article of mine, from not long after 9-11, was quoted back to me by two JAGs (it can be downloaded free here; I think it was used in a couple of JAG classes after it first came out, which is how they had seen it). My article argued that, in my experience as an NGO person debating with US military lawyers about a wide variety of human rights and law of war matters over a couple of decades, the peculiarity of the US military lawyer was a preference to treat such matters not as a matter of moral vision, but of "merely" technical lawyering, apolitical technical legal matters, and negotiation of the the US national security interest. I said in that piece that US military lawyers, in my personal experience with them, in fact had quite a burning moral vision of the laws of war and their meaning, and that US interests would be furthered if they were willing to argue more directly from moral propositions just as the NGOs do. It was pointed out to me that, in fact, JAG officers are far more willing to do that today than when I wrote that article, or at least in the pre-9-11 years - but as against the civilian authorities in their own government.

[Added:] Interestingly, at least to me, one of the core observations of that article about the interaction of US military lawyers with groups such as NGOs was the engaging, downright endearing desire of US military lawyers to be liked by the NGO people - they didn't want to think of themselves as the bad guys defending bad stuff; they thought of themselves as good guys just like the NGOs and wanted to go hang out with them and find common grounds of goodness and idealism. And in the unhappiness in some quarters over miltiary commissions and Guantanamo, it appears they have. It wasn't what I was thinking when I wrote that piece, and I'm actually surprised that Sulmasy and Yoo didn't cite it, but there it is.

Part of this, of course, locks into the whole question of citizens and soldiers, one's rights to expression even when one is a soldier. There is a tendency - I share it - to sympathize with the soldier or officer or JAG who feels morally compelled to speak out. On the other hand, the very concept of democratic civilian control over the military requires that military not operate as an independent branch of government, even on things it regards as deep moral propositions, but treat itself as a pure instrument of civilian will. That has never been true of the generals who control grand strategy, of course, and can't be - but it has never been thought to extend down to individual JAGs. Yet, if it comes to individual techniques, such as interrogation or detention techniques, that an individual JAG or, frankly, any other soldier finds fundamentally abhorrent and unconscionable, in our system we both expect the concern to be raised - and we expect it somehow to be resolved, for or against, within what is ultimately a structure of civilian authority.

So, on the one hand, a firm belief that even an instrumentality has to have some independent, internalized limits even as against those who direct it. On the other hand - well, I have spent a lot of time in Latin American military dictatorships over the past thirty years, and in every case, their justification for doing what they did was predicated on the view that the military had obligations to the "nation" that were greater than any particular set of civilian leaders. That enabled them to justify coups against any particular civilian administration in the name of some higher national conception. The UCLA article appears to suggest - the language is careful on that point - that some senior officersr, and some miltary lawyers - indeed, seemingly particularly military lawyers - view any administration in theory, but the Bush administration in particular, as merely temporary holders of office, whereas the military's allegiance is to something more eternal, even if it is the constitution as independently construed by the officer corps.

If that were really true, of course, it would come far too close to the "higher concept of the nation" that was relied upon by Latin American military dictators from Pinochet to Guatemala's successive military rulers. Or else Seven Days in May, which by happenstance I watched not long ago. But it was also hard to see that the article presented evidence of that - after all, it is true of all civil servants, always, that they see administrations come and administrations go; there are many miles between that and a view that the military serves some higher extra-administration mission. That seems to me the most incendiary implication of Sulmasy and Yoo's article, but one in which it is an enormous leap from one to the other, unjustified on its own.

Please be clear about this - I am not characterizing JAGs as a whole, of course, and am not even trying to say what I think the professional roles and their interactions should be, but am simply reflecting on my experience in being around different groups on various occasions and in various ways in light of this new article. My experiences are anecdotal, from someone outside the military. And my respect for the JAG and the way in which the rule of law has become an important part of military culture is enormous. I am not even necessarily criticizing these increased signs of willingness, if they are real, to dispute civilian authorities on moral grounds. I don't pretend to have answers to the various questions raised in these discussions - I am not sure exactly what I think or to what extent it raises matters of concern. But I am initially convinced that it is a public discussion that needs to be had. It is a hard one, because like all such questions, it by implication can easily be read as raising questions about loyalty, obedience, fidelity, honor - all deeply personal as well as professional, questions of personal and professional identity. (It is partly because of the psychological issues involved that I doubt very much that rational choice theory can provide the answers. ) [Added: I also think that Alan Kaufman is right in suggesting that Jack Goldsmith's discussion on this in The Terror Presidency is much more nuanced and captures the genuine controversy better, but I will leave that aside here.]

It is hard to know exactly what forum in which to have such discussions, if they should be had at all, if there is any reason to have them. Within the JAG schools, for example - yes, in one way, but I don't think it's sufficient. There are important questions here that need to be had in dialogue with larger intellectual and political communities. I'd be happy to try and create a setting for something like that discussion at my school, or perhaps through the new Hoover task force on national security and civil liberties. There are many players who already have articulated points of view - the NGOs, civil liberties organizations, military law groups, etc. Maybe it is something that the Lieber Society - the law of war branch of the American Society of International Law - might take up. And again, let me be clear - this is not an attack on the integrity of the JAG, either individually or institutionally, far from it, but it is a question as to whether there are issues of professional identity that need to be openly discussed. I have very mixed feelings about these things, and am frankly not sure what I think, except that I do think the questions need to be asked.

(This inchoate sense that the war on terror as a legal proposition has strained the JAG, in its fundamental identity, is one reason I have pressed for a civilianization of the detention and trial process - a national security court and a civilian regime of administrative detention, despite the many uncertainties and questions that such a regime raises. It is time to get the military out of the detention business and out of the military commissions business, and to bring their activities in these things back to traditional battlefields, battlefields as traditionally defined in the law of war, not the whole world as (legal) battlespace as the war on terror regime asserts. That means, however, as Jack Goldsmith, Ben Wittes, me, and many others by now - Glenn Sulmasy included - have urged, that Congress has to bestir itself and legislate the legal mechanisms, not only this administrative detention proposal, but additionally the legal structures to govern that part of counterterrorism that consists of gathering intelligence and acting on it in ways that are neither law enforcement nor war in the narrow legal sense.)

I know a great many JAG and former JAG, many of them highly distinguished lawyers in and out of uniform, some of whom have gone into academia and elsewhere (and one salutary side-effect of the tragedy of 9-11 is the fact that JAG officers, for the first time in my experience in academia, are able to get serious academic positions in law schools where they bring a wealth of experience not available any other way to these academic subjects). I'm not military or former military, I'm a law of war expert via NGOs, and I would be highly interested in getting reactions to this article and to the general issues I've raised here from those who are or have been.

Is this in fact a tempest in a teapot and not something of any long term concern? Are there real issues here, or am I making more out of it than I should? Is this something that merits a public discussion, or it is something best left to the JAG schools, as part of the discussion of professional roles as military and lawyers? This blog not being a shy place, I would be very interested to hear from people like Geoff Corn, Bobby Chesney, Mike Newton, Alan Kaufman, and people from the Lieber Society. And nonmilitary people as well, from NGOs and academia, from DOS and DOD, and from people in or once in the Bush administration - Matt Waxman and Philip Bobbitt and Jack Goldsmith come to mind. I am trying in part to gauge whether this is an issue of sufficient salience that I should be looking to try and promote a larger discussion. Or whether this is getting all excited over something that isn't really an issue, in an article that is making strong claims it doesn't really back up. Perhaps my imagination is merely inflamed from having watched Seven Days in May a couple of months back, all Burt Lancaster and Kirk Douglas. I solicit your views. I'd rather raise it in a blog post in order to see whether it is worth having a more formal discussion, or whether it warrants an article, or whether I'm getting over-excited. Send me an email if you'd rather not post something publicly.

I have excerpted two chunks from the article, below, one from the introduction on the large issue of military-civilian relations, and the second from near the end, specifically on the JAG.

Recent events in the war in Iraq and in the War on Terror have raised the salience of civilian-military relations. The war in Iraq has brought forth a great deal of friction between civilian Department of Defense officials and military officers. For example, dozens of retired military officers, including some recently returned from Iraq, called for the resignation of Secretary of *1819 Defense Donald Rumsfeld on the ground that he had mismanaged the war. [FN13] The criticism from the retired officers echoed not-for-attribution comments by active duty officers, which had extended to criticism of Secretary Rumsfeld's heavy hand in planning before the invasion. [FN14] Perhaps the most publicized flashpoint occurred when Army Chief of Staff, General Eric Shinseki, testified before Congress that an insufficient number of troops were being sent to occupy Iraq. [FN15] Senior Department of Defense officials quickly repudiated Shinseki's comments. [FN16] Our system perhaps has not witnessed a similar level of public conflict between civilians and military officers since President Truman's well-known and controversial firing of General Douglas MacArthur during the Korean War.

Civilians and military officers have also struggled over legal policy in the War on Terror. In February 2002, after extensive debate between civilian and military leaders, President Bush decided that the Geneva Conventions did not apply to armed conflict with al Qaeda, and that the United States would not extend prisoner of war (POW) status to al Qaeda's Taliban allies. [FN17] According to media reports, senior officers of the Judge Advocates General's (JAG) Corps opposed the decision and turned to human rights groups to challenge the decision in court. [FN18] According to press reports, JAGs argued that the decision violated international law, and they implicitly believed that the president did not have the authority to interpret and apply international law on behalf of the nation's government and military.

A second event of friction occurred in the fall of 2006 during Congress's consideration of the Military Commissions Act of 2006. [FN19] In November 2001, President Bush issued an order establishing special military courts for the trial of terrorist suspects accused of committing *1820 war crimes. [FN20] Some JAG officers had opposed this option, arguing that the existing court-martial system under the Uniform Code of Military Justice (UCMJ) ought to be used instead. [FN21] Civilian leaders in the Pentagon went ahead with the design of the military commissions, but proceedings never began due to habeas corpus litigation challenging their legality. In Hamdan v. Rumsfeld, [FN22] the U.S. Supreme Court held that the commissions violated Common Article 3 of the Geneva Conventions, [FN23] which it concluded Congress had incorporated into the rules for military commissions when it enacted the UCMJ in 1950. [FN24]
In response, the Bush Administration sought legislation from Congress to place the military commissions on firmer ground and to overrule aspects of Hamdan. During congressional hearings on the legislation, the head JAGs for the U.S. Marines and the U.S. Army claimed that military commission rules that withheld classified information from the defendant (but not defense counsel) violated “the judicial guarantees which are recognized as indispensable by civilized peoples,” as called for by Common Article 3. [FN25] Brigadier General James Walker, the Marines' top uniformed lawyer, said “no civilized country should deny a defendant the right to see the evidence against him, and that the United States ‘should not be the first.”’ [FN26] This directly conflicted with the position of the civilians in the Bush Administration, who concluded that the legislation was consistent with the United States' international obligations. [FN27] In the same hearings, the *1821 representative of the U.S. Department of Justice argued that the proposal to allow the defense counsel but not the defendant to see classified information “properly administered by the military judge, would strike the appropriate balance between safeguarding our Nation's secrets and ensuring a fair trial of the accused.” [FN28] In the same written statement, the representative declared: “In the midst of the current conflict, we simply cannot consider sharing with captured terrorists the highly sensitive intelligence that may be relevant to military-commission prosecutions.” [FN29]

Some criticize these actions for undermining the principle of civilian control of the military. Others defend them as an example of military experts preventing civilians from making serious strategic or tactical mistakes. Whatever their intention or effect, military criticism or even resistance to civilian policy decisions is not restricted only to the war in Iraq or the War on Terror. Rather, such criticism is the latest in a series of major conflicts between civilian and military leaders since the end of the Cold War.

Even before the September 11 attacks, observers had concluded that civilian-military relations had reached a “crisis.” [FN30] During the early Clinton years, one prominent military historian argued that General Colin Powell had resisted civilian leaders--regarding the use of force in Bosnia--in a manner reminiscent of General George McClellan's hesitancy to commit to battle during the Civil War. [FN31] Writing in 1994, Richard Kohn, one of the nation's leading military historians, characterized the Armed Forces during the late George H.W. Bush and early Clinton Administrations as “out of control.” [FN32] By 2002, Kohn had concluded that “civilian control of the military has weakened in the United States and is threatened today.” [FN33] According to Kohn, “the American military has grown in influence to the point of being able to impose its own perspective on many policies and decisions.” [FN34] Summing up the post-Cold War years, Kohn detected “no conspiracy but repeated efforts on the part of the armed forces to frustrate or evade civilian authority when that opposition seems likely to preclude outcomes *1822 the military dislikes.” [FN35] Kohn believed that civilian-military relations in that period were as poor as in any other period in American history. [FN36] In 1992, then-Colonel Charles Dunlap (now a brigadier general and deputy JAG of the U.S. Air Force), even wrote an essay in the form of a fictitious letter from the future describing a military coup by the year 2012 because civilian leaders were calling on the military to perform essentially civilian tasks, such as stopping drug trafficking or feeding the poor, which would lead to a politicized officer corps. [FN37]

What events produced this crisis? The conventional explanation is that President Clinton entered office with a military already distrustful of him, because of questions raised during the 1992 campaign about whether he had dodged the Vietnam War draft. Matters only became worse when Clinton decided, as one of his first acts as president, to reverse the military's ban on openly gay personnel. The Joint Chiefs of Staff immediately met with President Clinton to express their strong opposition to the decision, which was followed by an extensive congressional lobbying effort by the military in support of a statutory codification of the ban, coordination with retired officers who could publicly criticize President Clinton's proposal, and leaks to the press of mass resignations should the ban be lifted. [FN38] Within a few months, President Clinton announced the existing “Don't Ask, Don't Tell” policy, which amounted to a significant change from the administration's original policy.

While the controversy over gays in the military held high political salience, it was only one example of resistance by the military after the end of the Cold War. General Colin Powell, for example, gave an on-the-record interview in the New York Times opposing military intervention in Bosnia while serving as chairman of the Joint Chiefs of Staff; meanwhile, civilians in Congress, the first Bush Administration, and the 1992 presidential campaigns were still debating policy options. [FN39] General Powell even published an editorial in his own name opposing any Bosnian intervention. [FN40] Military historians suggest that the open opposition of General Powell and the military delayed U.S. intervention in the Balkans by four years. [FN41] Military leaders sought to prevent the Clinton Administration *1823 from sending a large military force to intervene in Haiti, and blamed civilians for refusing to send adequate armor and resources for the mission in Somalia. Opposition from the military and the Pentagon prevailed over President Clinton's desire to support the treaty banning land mines and significantly impeded his signature of the treaty creating the International Criminal Court-- a decision the Bush Administration soon reversed with the broad backing of the uniformed military. [FN42]

During this period, the struggle between civilians and the military continued over less well-known issues as well. Military officers apparently undermined the administration of Secretary of Defense Les Aspin, leading to his resignation, and also forced his nominated successor, Admiral Bobby Ray Inman, to withdraw. Controversies accompanied the retirement of several four-star flag officers, and there seemed to be constant infighting over issues such as sexual harassment policies and women in combat. [FN43] No serious change in organizational force structure occurred, even though the primary enemy for which the American military had prepared for more than half a century, the Soviet Union, had disintegrated. As Kohn observed, “the uniformed leadership-- each service chief, regional or functional commander, sometimes even division, task force, or wing commanders--possessed the political weight to veto any significant change in the nation's fundamental security structure.” [FN44] Opposition to efforts to rethink policy in response to the end of the Cold War and developments in military technology continued into the Bush Administration, which experienced stiff resistance before the September 11 attacks to the “revolution in military affairs” promoted by Secretary Rumsfeld. [FN45]

One could say, of course, that none of these examples demonstrates that civilian control of the military in the United States is under any real threat. If the sole purpose of civilian control of the military is to prevent a coup, then the principle has not been seriously challenged. But civilian control of the military encompasses more than just formal control over the instruments of government. It must also be measured by the ability of the military to succeed in imposing its preferred policy outcomes against the wishes of civilian leaders to the contrary.

This was the heart of General MacArthur's challenge to President Truman's leadership, widely considered the most serious civilian-military *1824 conflict, at least since the Civil War. MacArthur posed no threat of a military takeover of the formal mechanisms of government. Rather, MacArthur publicly questioned the civilian decision, after Communist China's intervention in the winter of 1950, to pursue a limited strategy in the Korean War instead of outright victory. MacArthur claimed that he was not required to take orders from the president as commander-in-chief, and that he owed a greater obligation to a higher constitutional authority. After he had been relieved by President Truman, General MacArthur returned to the United States to cheering crowds and addressed a joint session of Congress. In a speech to the Massachusetts legislature, MacArthur said: “I find in existence a new and heretofore unknown and dangerous concept that the members of our Armed Forces owe primary allegiance or loyalty to those who temporarily exercise the authority of the Executive Branch of Government rather than to the country and its Constitution which they are sworn to defend.” [FN46] While certainly not as public or as brusque, some members of the uniformed military appear to share a similar attitude that civilian leaders are, at best, temporary office holders to be outmaneuvered or outlasted.

One of the most important sections of this article addresses the extraordinarily sensitive question of the role of JAGs in the current war on terror debates. It is exceptionally difficult for anyone, inside the military or out, to raise at this point because it both invokes and triggers many debates over military culture. But this is a conversation that needs to be had within the JAG, within the military as a whole, and among civilian and military leaders. I have very considerable admiration for the article's willingness to raise an issue that can have such profound repercussions:

... In this ambiguous arena, JAGs are immersed in more than just the straightforward application of widely accepted legal rules on the use of force. Rather, the United States is engaged in adapting the laws of war to this new type of enemy, with significant moral, policy, and political considerations. *1844 These questions involve the status of detainees, the applicability of the Geneva Conventions, the legality of targeting leaders of al Qaeda, and determining proportionality and distinction when terrorists conceal themselves within civilian populations. [FN123] This new application of the laws of war has placed the JAG Corps in the middle of questions that had once been the domain of the elected civilian leadership or combat commanders.

In some instances, some senior JAGs have preferences that are profoundly different than those held by the civilian leadership. There are a number of potential explanations. First, JAGs have been influenced in part by nongovernmental organizations in the human rights arena. [FN124] These organizations sharply criticize the U.S. government and military operations conducted in the War on Terror and characterize U.S. strategic and tactical decisions as violating moral as well as legal principles. Second, JAGs are responsive to the American legal academy, which also continues to criticize many operations in the War on Terror as violations of both U.S. constitutional law and international norms. Third, JAGs cannot help but see that the War on Terror has produced deep divisions among political parties and groups in civilian society.

The growth of the role of JAGs has been remarkable in the past thirty years, even more so in the past decade. [FN125] It has essentially gone unregulated. Legal ambiguities in the wars of the twenty-first century will undoubtedly require a continued and enhanced presence of JAGs in military operations. However, unregulated deference to the JAGs has limited some combat operations, and will continue to do so. [FN126] Civilian leaders should remain aware that the growth in JAG influence can have a detrimental impact on the nation's ability to win wars. Leaders have allowed a regime to arise in which the JAGs advise, within the confines of the law, the best means of achieving military objectives. American combat officers must now seek out JAGs for rulings on the incorporation of the law of armed conflict into their ongoing operations. It is no coincidence that this unprecedented role for JAGs developed at the *1845 same time that severe problems in civilian control over the military occurred in the wake of the Cold War.

JAGs, almost as surprised as others with their newfound prominence, must be mindful of the effects their advice can have on effective combat operations. [FN127] Their enthusiasm in providing advice on operational matters will be viewed by some as challenges to civilian control of the Armed Forces. Policy concerns regarding operations or political decisions regarding the conduct of war cannot be officially challenged by JAGs. If actions to resist civilian policy choices in the War on Terror continue, our rational model approach predicts a response by combat officers and civilian entities, ultimately resulting in a diminished role for JAGs.

As I said, I solicit your views.