(And more references to old posts, too!) Back in October of last year I wrote a really long piece, The United Federation of Planets. It was another piece on the topic of the “reality” of rights, but in that piece I wrote this:
The “state of nature” is the ultimate objective reality. In it, people will do whatever is necessary to survive, or they don’t survive. In point of fact, throughout history – even today – people have not only defended their lives, liberty and property, they have taken life, liberty, and property from others not of their society. And they have done so secure in the knowledge that their philosophy tells them that it’s the right thing to do. This is true of the The Brow-Ridged Hairy People That Live Among the Distant Mountains, the Egyptians, the Inca, the Maori, the British Empire, and the United States of America. It’s called warfare, and it’s the use of lethal force against people outside ones own society. Rand explained that:
A ‘right’ is a moral principle defining and sanctioning a man’s freedom of action in a social context.
That’s a critical definition. If a society truly believes that:
…all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness
then that society cannot wage war. It cannot even defend itself – because to take human life, to destroy property, even to take prisoners of war is anathema to such a society, for it would be in violation of the fundamental rights of the victims of such action. (See: the Moriori. Or the Amish.)
This creates a cognitive bind, then, unless you rationalize that the rights you believe in are valid for your society, but not necessarily for those outside it. Those members that violate the sanctions on freedom of action within the society are treated differently from those outside the society that do the same. Those within the society are handled by the legal system, and are subject to capture, judicial review, and punishment under law, whether that’s issuance of an “Anti-Social Behavior Order” in London, or a death by stoning in Tehran. Those outside of a society who act against that society may be ignored, or may risk retaliatory sanctions up to and including open warfare, depending on the situation. (See: Kim Jong Il, Mahmoud Ahmadinejad, nuclear weapons.)
In every successful society the majority must share a common philosophy and believe that philosophy is superior to all others. It must, or that society will change. The philosophy of any society can be one of aggressive evangelism, or quiet comfort, or anywhere in between, but successful societies are marked by one key characteristic: confidence.
If you examine (the Left) closely, it has wrapped itself in a philosophy that attempts to extend all of the West’s “rights of man” to the entire world – up to and including those who are actively seeking our destruction, and the Left holds itself as morally superior for doing so. Attempting to intercept terrorist communications is “illegal domestic wiretapping” – a violation of the right to privacy. Media outlets showing acknowledged Islamist propaganda is exercise of the right of free speech, but suppression of images from the 9/11 attacks – specifically, the aircraft crashing into the World Trade Center, or its victims jumping to their deaths – is not censorship. The humiliation of prisoners at Abu Ghraib is described as a “human rights violation,” as is the detainment of prisoners at Guantanimo without trial. For the Left, the war between the West and radical Islamists should not be handled as a war – it should be handled as a police matter – as a society would handle internal violators. Our enemies shouldn’t be killed, they should be, at worst, captured and counseled. Our enemies are not at fault, WE are, because we are hypocrites that don’t live up to our professed belief in absolute, positive, unquestionable, fundamental, ultimate rights. If we just lived up to our professed beliefs, the rest of the world would not hate us. Yet to believe this, the Left must ignore objective reality. It acts, as the Moriori acted, to negotiate and appease, because that’s what its philosophy demands – and the results would be identical.
(Bold emphasis added.)
My validation came in an August 8 New York Times (natch) op-ed by General Wesley Clark and Kal Raustiala:
THE line between soldier and civilian has long been central to the law of war. Today that line is being blurred in the struggle against transnational terrorists. Since 9/11 the Bush administration has sought to categorize members of Al Qaeda and other jihadists as “unlawful combatants” rather than treat them as criminals. (My emphasis.)
The federal courts are increasingly wary of this approach, and rightly so. In a stinging rebuke, this summer a federal appeals court in Richmond, Va., struck down the government’s indefinite detention of a civilian, Ali al-Marri, by the military. The case illustrates once again the pitfalls of our current approach.
Treating terrorists as combatants is a mistake for two reasons. First, it dignifies criminality by according terrorist killers the status of soldiers. Under the law of war, military service members receive several privileges. They are permitted to kill the enemy and are immune from prosecution for doing so. They must, however, carefully distinguish between combatant and civilian and ensure that harm to civilians is limited.
Critics have rightly pointed out that traditional categories of combatant and civilian are muddled in a struggle against terrorists. In a traditional war, combatants and civilians are relatively easy to distinguish. The 9/11 hijackers, by contrast, dressed in ordinary clothes and hid their weapons. They acted not as citizens of Saudi Arabia, an ally of America, but as members of Al Qaeda, a shadowy transnational network. And their prime targets were innocent civilians.
By treating such terrorists as combatants, however, we accord them a mark of respect and dignify their acts.
Oh HORSESHIT!! By treating them as combatants we allow ourselves to unleash military firepower and dispense with the legal chains that go along with judicial process.
And we undercut our own efforts against them in the process. Al Qaeda represents no state, nor does it carry out any of a state’s responsibilities for the welfare of its citizens. Labeling its members as combatants elevates its cause and gives Al Qaeda an undeserved status.
As targets for JDAMs and Hellfire missiles, Marines and Army Rangers rather than FBI agents and Federal Marshalls?
If we are to defeat terrorists across the globe, we must do everything possible to deny legitimacy to their aims and means, and gain legitimacy for ourselves. As a result, terrorism should be fought first with information exchanges and law enforcement, then with more effective domestic security measures. Only as a last resort should we call on the military and label such activities “war.” The formula for defeating terrorism is well known and time-proven.
Really? It’s worked so well so far.
Labeling terrorists as combatants also leads to this paradox: while the deliberate killing of civilians is never permitted in war, it is legal to target a military installation or asset. Thus the attack by Al Qaeda on the destroyer Cole in Yemen in 2000 would be allowed, as well as attacks on command and control centers like the Pentagon. For all these reasons, the more appropriate designation for terrorists is not “unlawful combatant” but the one long used by the United States: criminal.
No, the more appropriate designation for terrorists is “targets.”
The second major problem with the approach of the Bush administration is that it endangers our political traditions and our commitment to liberty, and further damages America’s legitimacy in the eyes of others. Almost 50 years ago, at the height of the cold war, the Supreme Court reaffirmed the “deeply rooted and ancient opposition in this country to the extension of military control over civilians.”
Here I can agree – in principle.
A great danger in treating operatives for Al Qaeda as combatants is precisely that its members are not easily distinguished from the population at large. The government wields frightening power when it can designate who is, and who is not, subject to indefinite military detention. The Marri case turned on this issue. Mr. Marri is a legal resident of the United States and a citizen of Qatar; the government contends that he is a sleeper agent of Al Qaeda. For the last four years he has been held as an enemy combatant at the Navy brig in Charleston, S.C.
The federal court held that while the government can arrest and convict civilians, under current law the military cannot seize and detain Mr. Marri. Nor would it necessarily be constitutional to do so, even if Congress expressly authorized the military detention of civilians. At the core of the court’s reasoning is the belief that civilians and combatants are distinct. Had Ali al-Marri fought for an enemy nation, military detention would clearly be proper. But because he is accused of being a member of Al Qaeda, and is a citizen of a friendly nation, he should not be treated as a warrior.
Here is one of the points I was illustrating in United Federation. When one’s philosophy runs afoul of objective reality, something’s gotta give. Wesley and Kal want to continue to embrace the philosophy and deny objective reality – the reality being that treating terrorists as mere criminals allows them to use our civility as a weapon against us. It’s a tactic they enthusiastically and willingly exploit.
Cases like this illustrate that in the years since 9/11, the Bush administration’s approach to terrorism has created more problems than it has solved. We need to recognize that terrorists, while dangerous, are more like modern-day pirates than warriors. They ought to be pursued, tried and convicted in the courts. At the extreme, yes, military force may be required. But the terrorists themselves are not “combatants.” They are merely criminals, albeit criminals of an especially heinous type, and that label suggests the appropriate venue for dealing with the threats they pose.
“Especially heinous” – another point of agreement. But they are making war on us, and to refuse to acknowledge that seems to me to be wishful thinking at best, suicidal at worst. They’re not out for plunder. Their operatives are not afraid of dying. They want to kill as many of us as they can, as horrifically and often as they can.
They are not pirates, they aren’t even the equivalent of the barbarian hordes that ushered in the Dark Ages. They’re more like a plague than anything else, except this is a plague that hates.
We train our soldiers to respect the line between combatant and civilian. Our political leaders must also respect this distinction, lest we unwittingly endanger the values for which we are fighting, and further compromise our efforts to strengthen our security.
Criminal prosecution is supposed to result in correction – i.e.: imprisonment. When do convicted terrorists get parole? How many will end up on Death Row and go through endless appeals?
We deem them “unlawful combatants” because they are conducting warfare without obeying the rules of war that formal nations have agreed upon. Walter Russell Mead in his essay The Jacksonian Tradition explained it this way:
Jacksonian America has clear ideas about how wars should be fought, how enemies should be treated, and what should happen when the wars are over. It recognizes two kinds of enemies and two kinds of fighting: honorable enemies fight a clean fight and are entitled to be opposed in the same way; dishonorable enemies fight dirty wars and in that case all rules are off.
An honorable enemy is one who declares war before beginning combat; fights according to recognized rules of war, honoring such traditions as the flag of truce; treats civilians in occupied territory with due consideration; and — a crucial point– refrains from the mistreatment of prisoners of war. Those who surrender should be treated with generosity. Adversaries who honor the code will benefit from its protections, while those who want a dirty fight will get one.
So far, our side has done its dead-level best to fight honorably against a dishonorable enemy. The Left wants to rein even that in, and restrict us as much as possible to using law-enforcement techniques against an enemy that will use every advantage it can get.
The difficulty in separating terrorists from non-combatants is their greatest strength and our greatest weakness. Treating terrorists as unlawful combatants runs terrible risks of abusing truly innocent people. This is where our philosophy runs up against objective reality and is found wanting. So we have a terrible choice – do we, once again, put aside our beliefs for a time and do what is necessary to survive, or do we give every advantage to an enemy bent on destroying us? Or, more likely, do we tear our society asunder under the stress of our collective cognitive dissonance and the inevitable resulting loss of confidence?
My money’s on the latter. So is (or was) bin Laden’s.
(h/t: Jackalope Pursuivant)