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Is This War Different?

March 15, 2010

Yglesias and Drum attempt to expose conservatives on detainee policy:

Note, though, that in his item Conda appears to imply that al-Qaeda detainees should be treated as prisoners of war! Of course the one point of consensus between liberals and conservatives on this issue is that terrorism suspects aren’t warriors and shouldn’t be treated as prisoners of war. But because liberals believe in the rule of law, we want to treat them like criminals. Conservatives have dreamed up some kind of hazy legal status so absurd that their own writers can’t even remember what it is from day to day, so they accidentally slip-up and wind up referring to them as prisoners of war.

Well, conservatives believe that detainees shouldn’t be treated as prisoners of war because they are, as Drum says, “non-uniformed terrorists”, even though we are at war with them.  To fail to treat what would otherwise be enemy soldiers, if not for their stateless allegiances, as enemies rather than criminals is to not be at war with them.  And, as the President himself has said time and time again, we are at war with al-Qaeda.  This is not an international operation of the United States Police Department—those with whom we are at war have to be treated as such, if only for the sake of our legal system.  If there’s anybody who has “dreamed up some kind of hazy legal status” for enemy combatants, it is those who think that the military should be arresting people on the battlefield.  At least Drum is honest about this:

The Andy McCarthys of the world endlessly lecture us about how this war is different because it’s fought on one side by non-uniformed terrorists. And there’s some truth to that. It is different. But one of the ways it’s different is that it’s not always simple to know who’s a real enemy combatant and who’s not. And if that decision is left entirely up to the executive branch, you’re practically begging for the same kinds of abuses that you get if you let the executive branch operate without oversight in any other area. Thus, lawyers and judges have a role to play. They aren’t aiding the enemy during wartime, they’re trying to figure out who the enemy really is. Even Andy McCarthy ought to be interested in that.

I don’t know how “endlessly” I’ve been lectured by conservatives on the distinctions between this war and a “real” war—it seems like I’ve been lectured a whole lot more about how it doesn’t matter if we say we’re at war with al-Qaeda or the Taliban because when we capture them we have to treat them as if they’ve robbed a Seven Eleven in North Hollywood.  What is interesting, as Drum acknowledges, is the situation that arises when it’s unclear whether or not a detainee is or isn’t an al-Qaeda operative.  I’m willing to admit that perhaps a lawyer is warranted, as the case of Fouad al-Rabiah shows, but not under any circumstances for a civilian trial.  The whole thing would blow up immediately—the military personnel did not read him his Miranda rights, he didn’t get his phone call, etc.  It would be impossible to keep any of our enemies captured during wartime.  That’s no way to wage a war a’tall.  Unless, of course, it’s an “overseas contingency operation”, which the President has adamantly declared that it isn’t.

This is to say nothing of whether Department of Justice lawyers should be working pro bono in an “effort to use the legal system as a Trojan Horse to change national security policy” (not saying that they are!), but that’s an argument for another time.  I’ll save accusations on that for later.

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