Posts Tagged ‘Terrorism’

The Fallacies of Mukasey

Tuesday, October 20th, 2009

Michael Mukasey’s editorial in the Wall Street Journal yesterday continues to demonstrate the collapse of common sense in the Republican Party. His thesis is that “civilian courts are no place to try terrorists.” His main supporting argument – and the subheadline – suggests that there is a direct link between trying terrorists in a criminal proceeding and September 11. He doesn’t explain the link anywhere in the piece – but as the subhead says:

We tried the first World Trade Center bombers in civilian courts. In return we got 9/11 and the murder of nearly 3,000 innocents.

Mukasey himself concludes his piece:

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without. [my emphasis]

The “if…then…” relationship between these two is tenuous – and if you read the piece, you notice that Mukasey does not try to make it. And his laziness is evident elsewhere as he tries to attack Attorney General Eric Holder’s contention that a certain group of terrorists was prosecuted successfully on the grounds that (a) they were not executed because a jury member lied about his willingness to impose the death penalty; and (b) because one prisoner attacked a guard and injured him seriously.

The bulk of his piece does not attempt to further the narrative about how American justice leads to terrorist attacks on America – it instead raises a number of other issues, which have often been gone over. There is some legitimacy to this critique – so I do not mean to dismiss it outright. Phillip Bobbitt and some other legal scholars on the left have used it to make the case for “National Security Courts” which would solely deal with issues of terrorism and national security threats. Mukasey though uses them to make the more radical argument that our justice system itself is incapable of dealing with the threat – and so he proposes a kind of preemptive surrender of values.

These are the basic issues he raises:

  • Trying terrorists would require extra security for judges, jurors, prosecutors, etcetera.
  • This extra security (and additional caseload) would further burden an overloaded system.
  • The court itself would become a target.
  • Trying terrorists in a court would encourage litigation of national security issues.
  • If terrorists are convicted and put into the general prison population, they would be able to try to recruit converts to jihad.
  • Those suspected terrorists held by George W. Bush weren’t treated consistently with American standards of justice – and due to various reasons, we cannot make any case against many of them.
  • Part of our justice system involves the full disclosure of evidence to the defendants; this would allow information to leak, including possibly about intelligence means and methods.

Only the last two are legitimate issues that are difficult to deal with. The first five all have relatively easy solutions if we decide that our American justice system is capable of handling the threat from terrorism. We will provide the extra security. We will hire more judges and prosecutors and get the necessary resources to handle the additional caseload – getting this done would be as much a priority as having enough troops to accomplish a mission in Iraq. We would house terrorists separately from the general prison population – and I haven’t seen anyone suggest otherwise. (Though it’s worth noting that the example Mukasey gives is of a man who was radicalized in prison without being housed with terrorists.)

The issue of what to do with the prisoners George W. Bush was responsible for is a thorny one. Bush and Mukasey left the situation unresolved, and however it is resolved, it will prove politically and legally hazardous. But Obama seems to be approaching this situation pragmatically – and avoiding letting a desire for consistency to constrain him. This is the overall right approach, though the details could obviously be resolved poorly.

Regarding the last issue, Mukasy raises a very salient point – one which a National Security Court would resolve. This issue was also raised with respect to the War on Drugs and efforts to prosecute organized crime, and in each case, a new court with a new justice system was proposed. But our justice system proved able to handle these issues after early setbacks. Perhaps a new court is needed here, as our adversarial system can work to the advantage of organized groups opposing it. This is an issue to be debated – and a serious one. I would tend to believe that our courts – perhaps with some extra rules or procedures designed to mitigate the downsides – can handle these cases.

[Image by threecee licensed under Creative Commons.]

The Cairo Rapprochement

Thursday, June 4th, 2009

Obama’s Cairo speech is an excellent beginning of a rapprochement with Muslims around the world.  Here’s a few brief comments on a few passages in the speech:

So I have known Islam on three continents before coming to the region where it was first revealed.

Very respectful tone here. But, to my mind, theologically problematic. Obama is no theologian – but if he is a Christian, then does that not mean he rejects that Islam was revealed? It’s one thing to speak in a respectful tones about another religion – but another to accept that religion’s premises that supersede your own as true.

America is not the crude stereotype of a self-interested empire. The United States has been one of the greatest sources of progress that the world has ever known. We were born out of revolution against an empire. We were founded upon the ideal that all are created equal, and we have shed blood and struggled for centuries to give meaning to those words – within our borders, and around the world. We are shaped by every culture, drawn from every end of the Earth, and dedicated to a simple concept: E pluribus unum: “Out of many, one.”

This is something Obama has done so well – to preach the exceptionalism of America. And in many ways, his own story is a symbol of this. This idea of American exceptionalism is rejected as toxic though by most opponents of America – as well as many leftists in America. At best, it is seen as a kind of crude nationalism – and at worst as a sociopathic indifference to great crimes. There are two schools of American exceptionalism – the one which suggests America is inherently better than other countries and empires – and the other which states that America’s exceptionalism can be found in how it has dealt with its ideals and its power. Obama, clearly, belongs to the second category.

For we have learned from recent experience that when a financial system weakens in one country, prosperity is hurt everywhere. When a new flu infects one human being, all are at risk. When one nation pursues a nuclear weapon, the risk of nuclear attack rises for all nations. When violent extremists operate in one stretch of mountains, people are endangered across an ocean. And when innocents in Bosnia and Darfur are slaughtered, that is a stain on our collective conscience. That is what it means to share this world in the 21st century. That is the responsibility we have to one another as human beings.

Here Obama touches on the idea of the increasing interconnectedness of the world today – and in which he seems to be suggesting an alternate explanation than greed and empire for America’s involvements around the world, as well as a collective responsibility of all to create a better world.

…more than any other, they have killed Muslims…

I wish Obama had brought this up a few times – as this is such an important point. Al Qaeda and other violent extremists (the term Obama adopted, at least for this speech) have – while speaking most about attacking America – killed mainly fellow Muslims. In a recent editorial in Dawn, Pakistan’s leading English-language newspaper, columnist Nosheen Abbas quoted a man who lived in Swat before the Taliban took over:

These hooligans come and tell us they are here to bring Islam. What? Are we not Muslims?!

This is why the most effective counterterrorism strategy that the Bush administration was able to find was to let the extremists win for a while – and let their intolerance alienate the population.

Palestinians must abandon violence. Resistance through violence and killing is wrong and does not succeed. For centuries, black people in America suffered the lash of the whip as slaves and the humiliation of segregation. But it was not violence that won full and equal rights. It was a peaceful and determined insistence upon the ideals at the center of America’s founding. This same story can be told by people from South Africa to South Asia; from Eastern Europe to Indonesia. It’s a story with a simple truth: that violence is a dead end. It is a sign of neither courage nor power to shoot rockets at sleeping children, or to blow up old women on a bus. That is not how moral authority is claimed; that is how it is surrendered.

Although this might be the right thing to say – given our interests – I am not sure this is historically accurate. It’s a rather dangerous idea – that “Resistance through violence and killing is wrong.” Clearly – Obama is not saying that with any act of violence, one cedes one’s moral authority – for then he would be condemning the police whose authority is based on their implicit ability to do violence as well as our own military – which are even now engaged in violence with various forces in the Middle East. What he is instead referring to is violent resistance – by which he clearly is referring not to violence which supports the status quo, but which opposes it, or alternately, the violence of the weak against the strong. It’s an odd thing to condemn on moral grounds – and I’m not sure how this case can be made. There are many other instances in history when resistance would seem to justify violence – the Nazi occupation, the various genocides, slavery. What I could accept is that in recent history, it has been found that peaceful mass resistance has proven to be a far more effective tool in overturning the status quo, in empowering the weak over the strong.

Too many tears have flowed. Too much blood has been shed. All of us have a responsibility to work for the day when the mothers of Israelis and Palestinians can see their children grow up without fear; when the Holy Land of three great faiths is the place of peace that God intended it to be; when Jerusalem is a secure and lasting home for Jews and Christians and Muslims, and a place for all of the children of Abraham to mingle peacefully together as in the story of Isra, when Moses, Jesus, and Mohammed (peace be upon them) joined in prayer. [my emphasis]

I am not certain – but I feel as if this passage will be cited most of all – and will be the most influential, especially the idea of Jerusalem as “the place of peace that God intended it to be.”

So let me be clear: no system of government can or should be imposed upon one nation by any other.

That does not lessen my commitment, however, to governments that reflect the will of the people. Each nation gives life to this principle in its own way, grounded in the traditions of its own people. America does not presume to know what is best for everyone, just as we would not presume to pick the outcome of a peaceful election. But I do have an unyielding belief that all people yearn for certain things: the ability to speak your mind and have a say in how you are governed; confidence in the rule of law and the equal administration of justice; government that is transparent and doesn’t steal from the people; the freedom to live as you choose. Those are not just American ideas, they are human rights, and that is why we will support them everywhere…

No matter where it takes hold, government of the people and by the people sets a single standard for all who hold power: you must maintain your power through consent, not coercion; you must respect the rights of minorities, and participate with a spirit of tolerance and compromise; you must place the interests of your people and the legitimate workings of the political process above your party. Without these ingredients, elections alone do not make true democracy.

This is almost exactly what I had hoped Obama would say. Democracy activists in the region had already expressed disappointment that Obama was going to Egypt, implying an endorsement of the regime. And some – in the aftermath of the speech – continued to complain that he had given up on Bush’s democracy promotion. Realists continue to assert that we shouldn’t bother with such niceties as democracy promotion – seeing it as mainly a destabilizing element. The neoconservatives on the other hand correctly pointed out that a great deal of the instability and resentment in the region came from the fact that most of the nations here are authoritarian. Obama is attempting to “thread the needle” here – and to my mind, did it perfectly. He adopted what I understand to be Philip Bobbitt’s understanding of a state of consent being in direct opposition to a state of terror. Accepting this formulation puts Obama’s foreign policy on stronger ground than Bush’s.

Likewise, it is important for Western countries to avoid impeding Muslim citizens from practicing religion as they see fit – for instance, by dictating what clothes a Muslim woman should wear. We cannot disguise hostility towards any religion behind the pretence of liberalism.

Am I wrong to see this as a swipe at France here?

Overall, an excellent speech – and one that was apparently well-received. The follow-up is crucial – and it remains to be seen how Obama’s focus on nations that “reflect the will of the people” differs from Bush’s democracy promotion. But the change in emphasis is key – and itself does a great deal of good.