Comments to "It's Congress's War, Too" in Sept 3 NYT Magazine, starting with Marty Lederman

Let me use this space as a place for comments anyone wants to make. I will periodically repost substantive things people write in the comments section (whether to this post or the one below, which has excerpts from the essay) into the main body of this post so they are easily accessible. We'll start with Marty Lederman's comments - although we sometimes (often?) disagree, Marty's thoughts are always worth reading - and these are no exception.

My thanks to Glenn Reynolds and Instapundit for mentioning my NYT Magazine piece today, It's Congress's War, Too - and Real Clear Politics, also. And anyone else who has linked to it.

[Also, I want to thank my editors on this short essay at the NYT magazine - Scott Malcomson (not just a superb editor, but also author of important books you should read - e.g., Empire's Edge: Travels in South-Eastern Europe, Turkey and Central Asia, and the brilliant (and I don't mean that lightly) One Drop of Blood: The American Misadventure of Race), the magazine front section editor Alex Star, and my old, dear friend Gerry Marzorati. I am perfectly aware, thank you very much, that writer-editor etiquette frowns on PDA because, after all, these guys are all serious professionals, at the top of their game, and they do this for a living everyday, and this was in fact a short, modest little essay - but actually, I don't care about breaking etiquette, because they did a great job, particularly Scott, who guided it through, and they deserve public thanks. So thank you.]

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Reader Comments:

Marty Lederman writes:

Very nice column, Ken. I agree with much of it, even though I'm not terribly sanguine about the legislation that we will see proposed in Congress in the next couple of weeks.

Two minor, but important, qualifications:

1. The general thrust of your piece is a sentiment that many folks share, which is that Congress has been AWOL. You claim that "two branches of our government are hard at work" -- the Executive and the Judiciary -- and ask "where are the people’s elected representatives in all this?"

This is an odd question to be asking , given that every single relevant Supreme Court case -- Rasul, Hamdi, Hamdan, etc. -- has turned on *construing statutory rules* -- and that there are a veritable slew of statutes (and Senate-ratified treaties) already dealing with most or all of these issues in extensive detail. See, e.g., FISA (including several post-9/11 amendments), the Torture statute, the Geneva conventions, the UCMJ, the War Crimes Act, the PATRIOT Act, the assault statute, the DTA, the McCain Amendment, etc.

The problem is not that Congress has been silent -- the U.S. Code is teeming with laws regulating all of the areas you identify, including as applied to the conduct of war -- but instead that the Administration has refused to follow the rules laid down by duly enacted statutes, has tried its damnedest to keep its conduct secret from Congress, and, to the extent it believes pre-existing statutes are ill-suited to the new war(s), has failed to ask Congress for amendments. (Whenever the Administration has asked for statutory developments, e.g., the PATRIOT Act, Congress has been quick to respond.) All of which is to say that the accusatory finger is pointing at the wrong branch.

2. Second, in the interrogation section, there's the suggestion that the key question is what constitutes "torture." But we are party to treaties that also prohibit all "cruel treatment" (Common Article 3) and "cruel, inhuman and degrading treatment" (the CAT, not to mention the McCain Amendment). Although the due-process-based standards for the latter are (unfortunately) vaguer than they ought to be, in light of the Administration's strained reading of the due process precedents, the CA3 ban on all "cruel treatment" (not to mention "outrages upon dignity") is a fairly good starting baseline prohibition, and my understanding is that there are fairly clear understandings under Geneva as to what constitutes "cruel treatment and torture." In my view, no statute is needed to add to that prohibition. What the Administration wishes to do, of course, is to *authorize* the CIA to engage in "cruel treatment," i.e., to authorize violations of the Geneva Conventions. See http://balkin.blogspot.com/2006/08/cia-cruelty-authorization-act-of-2006.html. Personally, I think this would be a bad idea. This is one area in which the better course of action would simply be for Congress to embrace the post-Hamdan status quo, i.e., to affirm our commitment to abjuring the use of cruelty against those in our custody.

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Anonymous writes:

I want to flag the following passage from O'Connor's 2004 Hamdi opinion.

While the Executive Branch is always quick to cite Hamdi as upholding its broad authority to detain enemy combatants (subject, in the case of a US citizen held in the US, to some procedural due process protections), it's important to remember that the Court based that part of the holding on STATUTORY grounds, never reaching the Government's inherent authority as commander in chief arguments. Specifically, it held that the AUMF must have been intended to authorize detention of enemy combatants in accordance with traditional practice in warfare. This was one of the points Marty Lederman makes in his comment on your piece.

What's striking, however, in re-reading O'Connor's opinion is actually how narrowly it may be thinking about the current "war." One can see the difficulties the Executive Branch may have in relying on it in the long-term. She seems to be thinking about the armed conflict (much as many Europeans do) as restricted to hostilities in Afghanistan against residual Taliban forces. In the event that US forces draw down from Afghanistan or, perhaps someday, capture bin Laden, it is not at all far-fetched that the Court would read the AUMF's implicit detention authorities very narrowly.

In that event, the Executive Branch might be left relying on inherent powers arguments, which haven't been tested yet, and are not one's I'd want to roll the dice on...

Here's the passage from Hamdi:

Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress' grant of authority for the [***594] use of "necessary and appropriate force" to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is [**2642] not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. See, e.g., Constable, U. S. Launches New Operation in Afghanistan, Washington Post, Mar. 14, 2004, p A22 (reporting that 13,500 United States troops remain in Afghanistan, including several thousand new arrivals); J. Abizaid, Dept. of Defense, Gen. Abizaid Central Command Operations Update Briefing, Apr. 30, 2004, (... available in the Clerk of Court's case file) (media briefing describing ongoing operations in Afghanistan involving 20,000 United States troops). The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States." If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of "necessary and appropriate force," and therefore are authorized by the AUMF.

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From Lawrence L.:

Dear Mr Anderson:

Please stop using the phrase "the war on terror." It appears in your first paragraph in this Sunday's NYTimes Magazine. Here are the reasons for this request:

Why "War On Terror" is not an accurate use of words

There is no such thing as a “war on terror” or “war on terrorism.” It is a stupid statement, and I'll explain why in a moment. I don't mean that as a pejorative. And to repeat it, or give it any credence, is to help spread a lie, a deliberate attempt at propaganda, or a statement by a person who does not know what he or she is talking about. I find that the newspapers and television, as well as “blogs” on the Internet, all use the phrase “war on terror” and it does everyone a disservice. Google alone states that there are 137,000,000 references to this phase.

When our President, George Bush, says those words, he is talking non-sense. So is anyone else using these words. The reason I am writing this article is to explain this phenomenon.

The words are inflammatory, and their ultimate effect often deliberately to cause people to suspend any rational judgment about the things the speaker wants to do because of this so-called “War on Terror.” When rational judgment is suspended, people will do anything no matter how ineffective it is because of the emotional mind-clouding power, and the fear it gives rise to, when such meaningless words are used.

It is also extremely sloppy journalism to repeat this phase, except as a direct quote, because it is meaningless. It is as meaningless as “war on laziness” or the “war on weather.” Journalists seem never to have heard of semantics, or an "abstraction ladder", which looks at the meaning of words and how their use affects us.

Right now, we as a country are involved in a number of situations, one or two very separate wars, some diplomatic efforts, and a very diverse set of circumstances that may possibly threaten our way of life, and we, as a country, appear to be afraid of a number of diversified groups of people who reside in various countries. We are also, as a country, possibly threatened in a number of ways by a number of countries, as opposed to small scattered groups of people.

If we can define what these groups and countries are and distinguish how they differ from one another, it can help us to understand what we’re doing, why we’re doing it, and what the characteristics of all this mixed up “war on terror” might really mean. This, of course, immediately implies that there is no one single opponent against whom we can wage war, but instead presents a variety of different situations, some more dangerous than others, each of them requiring that we handle them, as best we can, in different ways if we want to reduce any threat they pose. ·

The first group of people that we claim to be fighting with is a vaguely defined group, once led by a man named Bin Laden, that calls itself Al Qaeda. It appears to be based in Afghanistan, but may have spread to various other countries. It is a loosely-knit, guerrilla group that dislikes “the West”, vaguely defined as European and American countries. We don't know nearly enough about it to be “at war” with this group because it is so diffuse, and it is all too easy to confuse it with other groups at times. It is not certain that its leaders are alive or have control over this group because it is so diffuse. Originally, it was most probably responsible for the event known as “9/11”. We, as a country under President Bush, claim to be fighting this group but appear to have lost interest in pursuing this group forcefully.

I say “claim to be fighting” because, for all of our efforts, we have never caught Bin Laden, and Al Qaeda appears to be stronger than ever before. We have troops in Afghanistan, but they appear to be there mainly poised to defend the central government, which has been threatened by a number of groups including the Taliban (the prior totalitarian government), war lords in various provinces, and a loose network of guerillas including the Al Qaeda group. The current Administration, led by President Bush, has apparently de-emphasized our military efforts in Afghanistan and his rhetoric, his use of the words “war on terror”, appear to be mainly directed at Iraq, not Afghanistan.

The number of deaths of U.S. troops killed in Afghanistan in this first military operation is 255 with 765 injured as of January 2006, as tracked by Wikipedia. I cite this figure in sharp contrast to the number of U.S. troops killed in the next military effort, still going on today, in Iraq which was 2,299 U.S. soldiers killed and 33,094 seriously injured as of March 2006 (cited at the site [not sure this link works]). The disparity between Afghanistan and Iraq, in terms of dead and casualties is very revealing about what is being emphasized. ·

The second group that we were fighting was the Saddam Hussein regime in Iraq. It was a war declared by President Bush, with no real resistance from Congress. The enemy was a vague one – mainly the dictator, Saddam Hussein, who somehow had Weapons of Mass Destruction (WMD) and was linked vaguely to “terrorists”, the same ones named in Afghanistan as being Al Qaeda. None of these reasons has proven to be true. I repeat: None of the reasons given for this war have been proven to be true. As cited above, more than 2,000 U.S. soldiers have been killed in Iraq as a result of this war. Because of what the President and his Administration have been saying, and repeating as a mantra, according to many surveys, many people in the U.S. believe, irrationally, that this war is being fought as a “war on terror.” This is simply not an accurate or true statement.

It appears that Iraq has three major ethnic groups that have never gotten along. When Saddam was in charge of the country, the Sunni controlled everything with an iron hand. The Shiites, although in the majority, had no political power. The Kurds, the third group, also had no power. Once Saddam’s forces were overcome by the U.S. forces, the Shiites grabbed political power, the Kurds grabbed the northern part of the country, and the Sunni who had control and resented losing it have begun conducting an insurgency. The Shiites and the Sunni both have deep hatred of each other; it is obvious that the Sunni aren’t used to being out of power, and the Shiites resent all of the terrible things that were done to their people when the Sunni were in power. This is has led to brutal killings, with our troops in the middle, mainly siding with the Shiite majority. The country at this time may be in civil war.

Our troops really aren’t fighting “terror” or “terrorists” here. They are actually intervening in an internal conflict that has been going on for a long time back to when England and Winston Churchill was involved. I will add that there have been instances of non-Iraqi individuals crossing the border into Iraq from Syria and Iran to attack American military forces, and some of these individuals may be linked to Al Qaeda, but that is not the biggest part of the problem. In fact, because of our invasion of Iraq and our destruction of the status quo, by eliminating Saddam Hussein, it may be that we have opened a whole new breeding ground for, and encouraged, these individuals to learn how to operate successfully and conduct terrorist operations. Iraq thus appears to be involved in a civil war of Sunnis versus Shiites, with Kurds protecting their interests, and some outsiders conducting guerilla terrorist operations aimed at fomenting unrest and driving the U.S. forces out. We cannot be involved in a “war on terror” here because there are at least four separate parties here, and it isn’t always clear who is doing what to hurt or kill whom. ·

A third arena whom we are not fighting is North Korea, a dictatorship that is working to build an atomic bomb capability. This country is a military threat to South Korea because it possesses a huge standing army of more than a million soldiers. It is a country with a well-defined government, not a loosely organized group of individuals. We have not declared war on them, nor have they declared war on the U.S. But for some reason, at times, they have been included in this “war on terror.” ·

A fourth arena that is also sometimes referred to under the mantra of “war on terror” is Iran. Iran is the largest country in the Middle East, with a government that is primarily run by its religious right. They may provide a place for Al Qaeda and other groups which dislike the U.S. for various reasons to develop and train members. We are not at war with Iran, and they are not at war with us. But, for some reason, they also have been lumped into this “war on terror”. ·

There are other places in the world, such as South America and the Philippines, that have been also lumped into this “war on terror”, but, again, we have not declared war on them nor have they declared war on the U.S. Numerous groups, some of which hate the U.S. and some involved in insurgencies against their existing government, have the earmarks of “terrorists” in that they conduct underground operations, kill people indiscriminately, have loose organizations, may or may not be linked to other similar organizations. ·

In general, it is also important to separate different types of terrorists (a very maligned word) into specific and different groups. For example, Basque separatists, in Spain, commit what we would call terrorist acts. So do the Tamil Tigers in northern Sri Lanka. They can both be called “terrorists.” Please note that, although these groups commit acts that seem to be terrorist acts, such as blowing up bombs in public places and killed innocent civilians, both of these groups are internal in their countries and act much as if they were engaged in a civil war against their existing government. ·

So we are not at war with all of the groups I’ve mentioned. We couldn’t be. Many of them have no government for us to declare war on. It is sloppy use of communication to say that we are engaged in a “war on terror” when we really need to understand that there are many such groups around the world, each separate and different, each requiring different tactics, each posing a different type of threat (in some cases, no threat) to our country.

Please remember that next time you hear these words. If you understand what has been said here, you will be able to determine how absurd such a claim is (“war on terror”) and look at what the person saying these words is really trying to do. He or she may be trying to scare you so you don’t think clearly; he or she may be pushing an agenda to take rights away from you; he or she may be saying such words to get elected again; or to be considered “patriotic” or “strong” or “effective”. Always listen to the words and match them to the actions. The outcome may surprise you and open your eyes to what is actually going on.