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The President’s War

February 2, 2010

(Updated below the fold)

Greenwald harangues us military tribunal types for treating terrorism as warfare by harkening back to the days of Reagan:

How much clearer evidence can there be of how warped and extremist we’ve become on these matters?  The express policies of the right-wing Ronald Reagan — “applying the rule of law to terrorists”; delegitimizing Terrorists by treating them as “criminals”; and compelling the criminal prosecution of those who authorize torture — are now considered on the Leftist fringe.  Merely advocating what Reagan explicitly adopted as his policy — “to use democracy’s most potent tool, the rule of law against” Terrorists — is now the exclusive province of civil liberties extremists.  In those rare cases when Obama does what Reagan’s policy demanded in all instances and what even Bush did at times — namely, trials and due process for accused Terrorists — he is attacked as being “Soft on Terror” by Democrats and Republicans alike.  And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) — or even hold them accountable in ways short of criminal proceedings — is now the hallmark of a Far Leftist Purist.  That’s how far we’ve fallen, how extremist our political consensus has become.

He also notes this post from Larry Johnson, which details how international terrorism was worse in the 1980s than it is now.

What’s missing from all of Johnson’s accounts of 1980s terrorism is the phrase “al Qaeda” because it didn’t exist yet.  As I’ve said before, the President has correctly abandoned the use of the phrase “war on terror” in favor of being “at war against al Qaeda”.  According to the POTUS, we are at war with a group of stateless enemy combatants (not “war”, as Greenwald calls it, but actual war).  Like it or not, that means that the laws of war apply to our actions with regard to al Qaeda.  It doesn’t matter if Reagan thought that international terrorism should be prosecuted as a crime even if things were worse then than they are now.  Reagan’s U.S. was not at war with any terrorist organizations.  This President’s is.

This day in age, the most dangerous practitioners of “terrorism” (a vague term to begin with) in the world are associated with al Qaeda, and the United States is currently engaged in a war to defeat this enemy, particularly in the Afghan theater And, if we’re going to be engaged in this war, then we have to treat our enemies as we would enemy soldiers.  That doesn’t mean we have to give them protections under Geneva, as they are indeed stateless guerrillas that attack civilian populations rather than soldiers of another nation, and we certainly shouldn’t “torture” them as a matter of national principle (just to clear that up), but it does mean that we cannot treat them as civilians.

Since we can’t wage at war against civilians, we can’t prosecute our enemies in this war as we would ordinary criminals.  Sure, al Qaeda operatives like Abdulmutallab are guilty of crimes—war crimes, that is—because they attempt to attack civilian populations.  The reason we try enemy combatants like him in military tribunals in the first place is precisely because they are accused of committing war crimes.  But killing for al Qaeda is not the same as killing for Vito Corleone because we are not waging a war against Cosa Nostra.   You can’t be an army and a constabulary at the same time.  You have to choose one or the other, and we’ve chosen to try and defeat al Qaeda rather than police it.  That means you don’t release captured detainees until the war’s over, and you don’t try those detainees accused of war crimes in a civilian court.

Greenwald and Johnson aren’t necessarily wrong that terrorism is a crime.  In this instance, however, we have declared war on al Qaeda, so terrorism by that organization is no longer crime—it is war.  To argue that we’re not at war with al Qaeda is to revive the debate on “Authorizations of the Use of Military Force” versus Declarations of War by Congress.  That argument certainly holds water, but by all appearances, that’s not the debate.  The debate is whether or not we should try our enemies in our own courts for their war crimes committed against us and others.  And the answer is no.

UPDATE: Something I wrote to my father yesterday in a response to his response on this post:

I think the realization has passed people by that, look, this is the way we’re choosing to deal with al Qaeda. We are declaring war against it. Congress has authorized an AUMF against it. That means we are legally obliged to treat its operatives as enemy combatants rather than criminals, regardless of whether terrorism is innately a criminal activity. A German soldier killing an Englishman in 1943 would be a crime except for the fact that Germany and England were at war in 1943. Until the war is over, the guys at Gitmo are essentially POWs. The ones that are there for killing or attempting to kill civilians should be tried the way you try enemy soldiers–by military tribunal. And the others stay there until the war does end. It is when we try to mix policing and waging war that bad stuff happens. And that’s what some people want to do. And they shouldn’t.

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