Tag: National Review

Bagram, Habeas, and the Rule of Law

Andrew C. McCarthy has an article up  at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.

McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.

More details after the jump.

McCarthy is Factually Misleading

McCarthy begins by criticizing a decision by District Judge John Bates to allow three detainees in Bagram, Afghanistan, to file habeas corpus petitions testing the legitimacy of their continued detention. McCarthy would have you believe that this is wrong because they are held in a combat zone and that they have already received an extraordinary amount of process by wartime detention standards. He is a bit off on both accounts.

First, this is not an instance where legal privileges are “extended to America’s enemies in Afghanistan.” The petition from Bagram originally had four plaintiffs, none of whom were captured in Afghanistan – they were taken into custody elsewhere and moved to Bagram, which is quite a different matter than a Taliban foot soldier taken into custody after an attack on an American base. As Judge Bates says in his decision, “It is one thing to detain t

hose captured on the surrounding battlefield at a place like Bagram, which [government attorneys] correctly maintain is in a theater of war. It is quite another thing to apprehend people in foreign countries – far from any Afghan battlefield – and then bring them to a theater of war, where the Constitution arguably may not reach.”

Judge Bates also took into account the political considerations of hearing a petition from Haji Wazir, an Afghan man detained in Dubai and then

moved to Bagram. Because of the diplomatic implications of ruling on an Afghan who is on Afghan soil, Bates dismissed Wazir’s petition. So much for judicial “despotism” and judicial interference on the battlefield, unless you define the world as your battlefield.

Second, the detainees have not been given very much process. Their detentions have been approved in “Unlawful Enemy Combatant Review Boards.” Detainees in these proceedings have no American representative, are not present at the hearings, and submit a written statement as to why they should be released without any knowledge of what factual basis the government is using to justify their detention. This is far less than the Combatant Status Review Tribunal procedures held insufficient in the Supreme Court’s Boumediene ruling.

Yes, Fix Detention in Afghanistan

McCarthy then chides the Obama administration for trying to get ahead of the courts by affording more process to detainees: “See, we can give the enemy more rights without a judge ordering us to do so!”

Well, yes. We should fix the detention procedures used in Afghanistan to provide the adequate “habeas substitute” required by Boumediene so that courts either: (1) don’t see a need to intervene; or (2) when they do review detention, they ratify the military’s decision more often than not.

Thing is, the only substitute for habeas is habeas. Habeas demands a hearing, with a judge, with counsel for both the detainee and the government, and a weighing of evidence and intelligence that a federal court will take seriously. If the military does this itself, then the success rate in both detaining the right people and sustaining detention decisions upon review are improved.

This is nothing new or unprecedented. Salim Hamdan, Usama Bin Laden’s driver, received such a hearing prior to his military commission. The CSRT procedures that the Bagram detainees are now going to face were insufficient to subject Hamdan to a military commission, so Navy Captain Keith Allred granted Hamdan’s motion for a hearing under Article V of the Geneva Conventions to determine his legal status.

Allred found that Hamdan’s service to Al Qaeda as Osama Bin Laden’s driver and occasional bodyguard, pledge of bayat (allegiance) to Bin Laden, training in a terrorist camp, and transport of weapons for Al Qaeda and affiliated forces supported finding him an enemy combatant. Hamdan was captured at a roadblock with two surface-to-air missiles in the back of his vehicle. The Taliban had no air force; the only planes in the sky were American. Hamdan was driving toward Kandahar, where Taliban and American forces were engaged in a major battle. The officer that took Hamdan into custody took pictures of the missiles in Hamdan’s vehicle before destroying them.

Hamdan’s past association with the Ansars (supporters), a regularized fighting unit under the Taliban, did not make him a lawful combatant. Though the Ansars wore uniforms and bore their arms openly, Hamdan was taken into custody in civilian clothes and had no distinctive uniform or insignia. Based on his “direct participation in hostilities” and lack of actions to make him a lawful combatant, Captain Allred found that Hamdan was an unlawful enemy combatant.

Hamdan’s Article V hearing should be the template for battlefield detention. Charles “Cully” Stimson at the Heritage Foundation, a judge in the Navy JAG reserves and former Bush administration detainee affairs official, wrote a proposal to do exactly that, Holding Terrorists Accountable: A Lawful Detention Framework for the Long War.

The more we legitimize and regularize these decisions, the better off we are. Military judges should be writing decisions on detention and publishing declassified versions in military law reporters. One of the great tragedies of litigating the detainees from the early days in Afghanistan is that a number were simply handed to us by the Northern Alliance with little to no proof and plenty of financial motive for false positives. My friends in the service tell me that we are still running quite a catch-and-release program in Afghanistan. I attribute this to arguing over dumb cases from the beginning of the war when we had little cultural awareness and a far less sophisticated intelligence apparatus. Detention has become a dirty word. By not establishing a durable legal regime for military detention, we created lawfare fodder for our enemies and made it politically costly to detain captured fighters.

The Long-Term Picture

McCarthy, along with too many on the Right, is fixated on maintaining executive detention without legal recourse as our go-to policy for incapacitating terrorists and insurgents. In the long run we need to downshift our conflicts from warmaking to law enforcement, and at some point detention transitions to trial and conviction.

McCarthy might blast me for using the “rule of law” approach that he associates with the Left and pre-9/11 counterterrorism efforts. Which is fine, since, just as federal judges “have no institutional competence in the conduct of war,” neither do former federal prosecutors.

Counterterrorism and counterinsurgency are not pursued solely by military or law enforcement means. We should use both. The military is a tool of necessity, but in the long run, the law is our most effective weapon.

History dictates an approach that uses military force as a means to re-impose order and the law to enforce it. The United States did this in Iraq, separating hard core foreign fighters from local flunkies and conducting counterinsurgency inside its own detention facilities. The guys who were shooting at Americans for a quick buck were given some job training and signed over to a relative who assumed legal responsibility for the detainee’s oath not to take up arms again. We moved detainees who could be connected to specific crimes into the Iraqi Central Criminal Court for prosecution. We did all of this under the Law and Order Task Force, establishing Iraqi criminal law as the law of the land.

We did the same in Vietnam, establishing joint boards with the Vietnamese to triage detainees into Prisoner of War, unlawful combatant, criminal defendant, and rehabilitation categories.

The Washington Post article on our detention reforms in Afghanistan indicates that we are following a pattern similar to past conflicts. How this is a novel and dangerous course of action escapes me.

Who’s the Despot Here?

McCarthy points to FDR as a model for our actions in this conflict between the Executive and Judiciary branches. He says that the President should ignore the judgments of the courts in the realm of national security and their “despotic” decrees. I do not think this word means what he thinks it means.

FDR was the despot in this chapter of American history, threatening to pack the Supreme Court unless they adopted an expansive view of federal economic regulatory power. The effects of an expansive reading of the Commerce Clause are felt today in an upending of the balance of power that the Founders envisioned between the states and the federal government.

McCarthy does not seem bothered by other historical events involving the President’s powers as Commander-in-Chief in the realm of national security. The Supreme Court has rightly held that the President’s war powers do not extend to breaking strikes at domestic factories when Congress declined to do so during the Korean War, trying American citizens by military commission in places where the federal courts are still open and functioning, and declaring the application of martial law to civilians unconstitutional while World War II was under way.

The Constitution establishes the Judiciary as a check on the majoritarian desires of the Legislature and the actions of the Executive, even during wartime. To think otherwise is willful blindness.

Presidential Cults

Glenn Greenwald, author of Cato’s much-discussed paper on the success of drug decriminalization in Portugal, writes about cults of presidential personality. He notes that Jay Nordlinger of National Review and other conservatives – not to mention a few libertarians – have criticized the Obama administration’s plan to broadcast a presidential speech into American schools and push teachers to post Obama quotes in their classrooms and encourage students to talk about how President Obama inspires them.

Greenwald never actually defends the Obama plan. But he does argue that conservatives have short memories when they say that this is something unique. In particular, he reminds us of the notorious Monica Goodling’s questions to job candidates at the George W. Bush Department of Justice, such as “[W]hat is it about George W. Bush that makes you want to serve him?” And also of White House political aide Sara Taylor, who told the Senate Judiciary Committee, “I took an oath to the president, and I take that oath very seriously.” Committee chairman Patrick Leahy had to ask her, “Did you mean, perhaps, you took an oath to the Constitution?”

Greenwald has a good point. Both the red and blue teams have been far too quick to succumb to a cult of presidential personality. (And really, swooning over Reagan or Obama is sort of understandable. But George W. Bush? You have to wonder if they worked really hard at creating a Bush cult because there wasn’t really much there.)

But I do see one difference: The Obama administration is trying to push its president-worship onto 50 million captive schoolchildren (not to mention using the NEA to enlist the nation’s artists in promoting Obama and his agenda). Goodling was asking people looking for government jobs why they wanted to “serve George W. Bush.” Now, sure, they should want to serve the public interest – and she was asking these questions to people seeking career legal positions as well as to political appointees. Still, it seems a smaller bit of cultishness than going into every public school.

Gene Healy wrote about cultishness by both Bush and Obama supporters here.

Have Mexican Dishwashers Brought California to Its Knees?

workerAn article published this week by National Review magazine blames the many problems of California on—take a guess—high taxes, over-regulation of business, runaway state spending, an expansive welfare state? Try none of the above. The article, by Alex Alexiev of the Hudson Institute, puts the blame on the backs of low-skilled, illegal immigrants from Mexico and the federal government for not keeping them out.

Titled “Catching Up to Mexico: Illegal immigration is depleting California’s human capital and ravaging its economy,” the article endorses high-skilled immigration to the state while rejecting the influx of “the poorly educated, the unskilled, and the illiterate” immigrants that enter illegally from Mexico and elsewhere in Latin America.

Before swallowing the article’s thesis, consider two thoughts:

One, if low-skilled, illegal immigration is the single greatest cause of California’s woes, how does the author explain the relative success of Texas? As a survey in the July 11 issue of The Economist magazine explained, smaller-government Texas has avoided many of the problems of California while outperforming most of the rest of the country in job creation and economic growth. And Texas has managed to do this with an illegal immigrant population that rivals California’s as a share of its population.

Two, low-skilled immigrants actually enhance the human capital of native-born Americans by allowing us to move up the occupational ladder to jobs that are more productive and better paying. In a new study from the Cato Institute, titled “Restriction or Legalization? Measuring the Economic Benefits of Immigration Reform,” this phenomenon is called the “occupational mix effect” and it translates into tens of billions of dollars of benefits to U.S. households.

Our new study, authored by economists Peter Dixon and Maureen Rimmer, found that legalization of low-skilled immigration would boost the incomes of American households by $180 billion, while further restricting such immigration would reduce the incomes of U.S. families by $80 billion.

That is a quarter of a trillion dollar difference between following the policy advice of National Review and that of the Cato Institute. Last time I checked, that is still real money, even in Washington.

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Lowry on the “Mad Dash” to Pass ObamaCare

From National Review editor Rich Lowry’s column for King Features Syndicate:

As with the stimulus package, Obama’s health-care plan depends on speed. More important than any given provision, more important than any principle, more important than sound legislating is the urgent imperative to Do It Now.

Do it now, before anyone can grasp what exactly it is that Congress is passing. Do it now, before the overpromising and the dishonest justifications can be exposed. Do it now, before Obama’s poll numbers return to Earth and make it impossible to slam through ramshackle government programs concocted on the run. Do it now, because simply growing government is more important than the practicalities of any new program…

Obama cultivated an image of cool during the campaign. Unrattled. Deliberate. Cerebral to a fault. Who knew he’d be in a panic to remake one-sixth of the economy by the first week of August of his first year in office?

Normally, the larger and more complicated a bill is, the longer Congress takes to consider it. With the stimulus and cap-and-trade, Obama and the Democrats upended this rule of thumb by passing byzantine, 1,000-page bills that no one had the time to read. When the work product is indefensible, deliberation is dangerous.

There’s a touch of the guilty conscience about Obama’s terrible rush. As if he knows he was elected as a moderate-sounding deficit hawk last year, and if he’s going to pass an ambitious left-wing program, he must do it before the opposition builds.

He Is the Very Model of a Modern Right-Wing Foreign Policy Thinker

Jim Lobe points us to the thoughts of Andrew McCarthy, a fellow at the Foundation for the Defense of Democracies, on Barack Obama’s reticence to urge other people to spill their blood in Iran.  A few choice bits below:

  • andymccarthy“The fact is that, as a man of the hard Left, Obama is more comfortable with a totalitarian Islamic regime than he would be with a free Iranian society.”
  • The divergences between radical Islam and radical Leftism are much overrated — ‘equal rights’ and ‘social justice’ are always more rally-cry propaganda than real goals for totalitarians, and hatred of certain groups is always a feature of their societies.”
  • It would have been political suicide to issue a statement supportive of the mullahs, so Obama’s instinct was to do the next best thing: to say nothing supportive of the freedom fighters.”
  • It’s a mistake to perceive this as ‘weakness’ in Obama. It would have been weakness for him to flit over to the freedom fighters’ side the minute it seemed politically expedient. He hasn’t done that, and he won’t. Obama has a preferred outcome here, one that is more in line with his worldview, and it is not victory for the freedom fighters. He is hanging as tough as political pragmatism allows, and by doing so he is making his preferred outcome more likely.  That’s not weakness, it’s strength — and strength of the sort that ought to frighten us.”

As Lobe notes, this prompted a rare “that’s over the line” type response from National Review editor Rich Lowry, but McCarthy is having none of it.  Instead, McCarthy says that by no means were his earlier remarks out of bounds, and argues that Obama is going to transform the United States into the sort of country that the Islamic Republic will be fond of.

That’s the sort of calm, reasoned debate we’ve come to expect from the establishment Right.  I’m trying to think, which conservative thinker does this sort of thing finds its lineage in?  Burke?  Kirk?  Carl Schmitt?  It’s tough to say.

Just Say No to Public Option Health Care

In today’s New York Times, Paul Krugman writes about the necessity of a public option in health care. Why is a public plan such a bad idea? I explain in my post over at The Corner:

A public plan, regardless of how it was structured or administered, would have an inherent advantage in the marketplace over private insurance companies because it would ultimately be subsidized by American taxpayers. It would also have an advantage since its enormous market presence would allow it to impose much lower reimbursement rates on doctors and hospitals, similar to current reimbursement practice under Medicare and Medicaid. It is estimated that privately insured patients presently pay $89 billion annually in additional insurance costs because of cost-shifting from government programs. Assuming the new public option would have similar reimbursement policies, it would result in additional cost-shifting as much as $36.4 billion annually. This would force insurers to raise their premiums, making them even less competitive with the taxpayer-subsidized public plan.

With the public option squeezing private insurers from the sides, and expanded eligibility for Medicare and Medicaid pushing from the top and bottom, it is unlikely that any significant private insurance market could continue to exist. America would be firmly on the road to a single-payer health care system with all the dangers that presents.

McCarthy Does Petraeus a Disservice

General Petraeus recently gave an interview to Fox News. Petraeus speaks approvingly of the decision to close Guantanamo, limiting interrogation to the techniques in the Army Field Manual, and how adherence to the Geneva Conventions takes propaganda fodder out of the hands of our enemies.

Andy McCarthy attacks Petraeus over at National Review Online’s The Corner:

With due respect to Gen. Petraeus, this is just vapid. To begin with, he doesn’t identify any provision of the Geneva Conventions that we have actually violated - he just repeats the standard talking-point of his current commander-in-chief that we took “steps that have violated the Geneva Conventions” during those bad old Bush days. What steps is he talking about? How about naming one?

McCarthy then uses the brief reference to the Geneva Conventions to attack strawman arguments as if Petraeus wanted to give full Prisoner of War status to Al Qaeda and Taliban fighters and had just proposed ending military detention of combatants picked up on the battlefield.

I’m pretty sure that Petraeus is not squeamish about keeping detainees in custody. As CENTCOM Commander, he’s got over 600 of them in Bagram.

When you watch the video it’s pretty clear that Petraeus was referring to the treatment of detainees and the use of “enhanced interrogation techniques” as violating the Geneva Conventions, a position consistent with his previous statements. Petraeus doesn’t supply a specific provision to satisfy McCarthy, but he is likely thinking about Common Article 3 of the Geneva Conventions of 1949.  This provision bans, even in a conflict of a non-international nature (read: counterinsurgency and counterterrorism), cruelty, torture, and humiliating and degrading treatment.

McCarthy is also broadly dismissive of the propaganda effect that Guantanamo has had in encouraging people to take up arms against US forces. This sentiment is counter to the doctrine that I learned in the Special Forces Detachment Commander’s Qualification Course. Low-level insurgencies and terrorism are driven by propaganda.

To build an insurgency, you don’t need to win battles. You need to take a few shots at your enemy and tell stories about how successful you were, even when you weren’t. Over time you get sympathetic parties to join your struggle and gain critical mass to move into outright guerrilla warfare.

To sustain a worldwide terrorist organization, you don’t need to actually pose an existential threat. You need to prod a superpower into deploying large troop formations into the Muslim world, where they can be entangled in local disputes over local grievances. Usama bin Laden is not the commander-in-chief of any significant armed force, but he can be the inciter-in-chief who makes broad claims about opposition to America. He tries to link local insurgencies to his global caliphate narrative even where they are not supportive of his broader goals. Check out David Kilcullen’s book, The Accidental Guerrilla, for a detailed discussion. Incidentally, Kilcullen worked for Petraeus as a senior counterinsurgency advisor in Iraq.

This is the propaganda war we are fighting, and most everyone agrees that we have not been doing it very well. Every time we drop a bomb in Afghanistan, the Taliban beat us to the punch with exaggerated (and mostly false) claims of civilian casualties. US forces are now reviving body count reports to counter Taliban propaganda. While I don’t think that body counts are a good metric for success in the long run, trying to be an honest broker of good and bad information blunts enemy propaganda.

McCarthy is wrong to mischaracterize Petraeus’ words and dismiss the propaganda war where we have largely been a punching bag. Cheerleading our military leaders who produce gains on the ground but dismissing the fundamental insights that produced their success is willful blindness.