The War on Terrorism is the Correct Label

[jmm99]

In her comments (7 Sep 2011) imposing a 25-year mandatory minimum sentence, Judge Colleen McMahon said:

"The essence of what occurred here was that a government, understandably zealous to protect its citizens, created acts of terrorism out of the fantasies and the bravado and the bigotry of one man in particular and four men generally and then made these fantasies come true," she said. "The government made them terrorists. ... I am not proud of my government for what it did in this case."

If this judge truly believed the "essence of what occured here" (that ... "The government made them terrorists"), then the courage of her convictions ought to have compelled her to find that the defendants were entapped as a matter of law and to dismiss the charges.

Confusion, inconsistency or hypocrisy as to "terrorism" ?

Regards

Mike

[Ken White]

Whatever it is, there certainly is a lot of it going around.

[jmm99]

or Is It ? That's the bottom line to a debate (sponsered by Intelligence Squared and Slate) involving people of higher pay grades than I - 7 Sep 2011, It's Time to End the War on Terror, For the Motion: Peter Bergen, Juliette Kayyem; Against the Motion: Richard Falkenrath, Michael Hayden; Moderator: John Donvan (50-page transcript).

At Lawfare, analysis of the debate is by John Mattiace, "an attorney practicing in New Jersey, who earned his J.D. from Seton Hall Law School in 2010. While in law school, he studied Islamic Law at the American University in Cairo, Egypt and served as an intern to the Staff Judge Advocate of the XVIII Airborne Corps at Fort Bragg in North Carolina":

The debate was accompanied by direct audience voting, with the side having generated the biggest percentage change in opinion deemed to have “won” the debate. By this metric, the debate was won by Hayden and Falkenrath, with their side having changing the minds of 15 percent of the audience, and the other side having only changed the minds of 3 percent. On the other hand, a plurality at the end of the debate still favored ending the war on terror; the overall vote at the end was 46 percent for ending it, with 43 percent against ending the war and 11 percent undecided.

I find it possible to harmonize both positions for the simple reason that the two sides were talking past each other (ships in the night):

The Hayden-Falkenrath side makes a telling ROE point (not really disputed by Bergen-Kayyem):

Hayden and Falkenrath framed the debate by defining the notion of “war” largely as the legal state which was created by the passage of the AUMF shortly after September 11. They reasoned that this legal state, undergirded by the AUMF, gives the government the authority to carry out acts of war, such as the killing of bin Laden, legally. As Hayden put it:

The point we want to make is the legal construct–the legal belief that we are a nation at war; that we are a nation in conflict; and we have a right, because we are in that status, to use the legal tools and the legal authorities that a nation at war is allowed to use. What it is we’re supporting is to keep all available tools on the table–to keep a menu of options from law enforcement, diplomacy, or to arm[ed] conflict in order to keep you safe.

....
Thus, Hayden and Falkenrath’s position is that without this legal state of war, the government can no longer legally carry out such acts like the killing of bin Laden or the various “number twos” of al Qaeda. Hayden specifically used the killing of bin Laden to strengthen his position. He put the killing in stark terms, describing it in the following way:

Let me give you a slightly different description of [bin Laden’s killing]. A heavily armed agent of the United States government was in a room with an unarmed man who was under indictment in the United States judicial system and was offering no significant resistance to the heavily armed agent of the United States government, and that heavily armed agent of the United States government killed him.

Hayden’s rhetorical purpose is clear with the inclusion of the phrases “under indictment in the United Stated judicial system” and “offering no significant resistance.” Any attorney hearing or reading this description in a vacuum would be instantly troubled by these facts and even a first year law student could “issue spot” the various Fifth and Fourth Amendment violations. Even someone with no legal training at all would be revolted. But that same action taken by the same “heavily armed agent of the United States” does not constitute a violation of the Constitution, nor any criminal statute, precisely because the country is in the legal state of war. ......

These are points I've made over and over again for the last three years.

On the other side of debate, Bergen-Kayyem went little to law and more to a "state of mind":

Bergen and Kayyem ended up agreeing with Hayden and Falkenrath that the legal tools that allow the Executive to kill people like bin Laden should not be taken away. Kayyem specifically stated that:

There is authority for the President to use force, including killing Bin Laden, under the Authorization for the Use of Military Force. I support that.

Nevertheless, they argued that the term “war” means more than a simple legal state in the context of the phrase “war on terror.” Bergen described their position as follows:

[W]e’re just calling for an end of this all-encompassing, global conflict that has cost us so much money. We’re not calling for [the end of] a global police action against terrorists, certainly. We reserve the right for a certain kind of war-like activities, but it’s time to stop this sort of grandiose approach, where we’re at war with any person who’s ever said the word “Jihad” around the world, which is going to cost us a lot of money.

Kayyem argued that the war on terror represented many negative things listing the following:

the enhanced interrogation, the dark side, the with us or against us, the indiscriminate interviewing [of] particular Arab and Muslim communities, the registration of Arab immigrants, military tribunals that adhere to standards unrecognized in military law, the color code alerts, the breathless press conferences, the rejection of the law of wars, the treating of the Geneva Conventions as quaint, secret wiretapping and violation of established law, the disdain for the judiciary–those were also part of that war.

Bergen also added that:

The War on Terror was not the war on Al-Qaeda and its allies. It was an open-ended conflict against a tactic that produced a lot of enormous problems for this country, including the Iraq War and all that, the legacy we have from that. . . . We’re not just debating about what happened today. It’s about a mindset which causes countries some serious economic problems–which we are still trying to recover from.

Thus, Bergen and Kayyem’s position is that the “war on terror” does not only represent a legal structure but also carries with it a sort of grandiose global notion of war and includes things like warrantless wiretapping, black sites, rendition, harsh interrogation, the spending of over a trillion dollars and acts like the Iraq war. Overall, they contended that because the country has moved past these things and by extension changed its mindset, it should cease framing its counterterrorism as a war.

While many of the things said by Bergen-Kayyem are true or have elements of truth, various things that are "bad" do not necessarily follow from an AUMF vs a group or groups of Violent Non-State Actors. Just because you have a broad hunting license, doesn't mean you have to kill everything in the woods.

As to mindset, a starting point (and the ultimate defense against terrorism as a tactic) would be the civilian population's refusal to be terrorized. Soldiers accept risks in the field; civilians should also accept risks in this kind of conflict (the risks not being anywhere close to existential with respect to the civilian population as a group).

The problem, of course, with barring the door to any AUMF basis is simply that tools will be lost - e.g., UBL being a member of a declared hostile force.

Those who want to move us from "war" to "peace" - and cherry pick statements from new-found "allies" that seem to agree with that, had best look more carefully at all the consequences of their allies' positions.

Regards

Mike