Sunday, July 08, 2007

My new Fordham International Law Journal speech-essay, US Counterterrorism Policy and Superpower Compliance with International Human Rights Norms

My speech/essay, US Counterterrorism Policy and Superpower Compliance With International Human Rights Norms, has just appeared in 30 Fordham International Law Journal 455 (February 2007).

I have posted a copy to SSRN, and it can be downloaded (free), here.

The piece has some copyediting mistakes in it - most significant is where William Wilberforce appears instead as Wilbur Luce, ouch! and Ben Wittes' name is misspelled, ouch ouch! - but those problems are my doing, not the journal editors, as I was unconscionably late getting them final handmarked changes and there was not time for me to review final proofs. It is a speech and deliberately left as a speech in essay format, not reworked as an article, so it is quite informal and perhaps quite unjustifiably provocative. It is also sweeping in its scope - I wanted to take in the big picture, the grand picture in a short space.

Earlier I posted some lengthy excerpts from the piece below as blog entries. I'm now deleting those entries, as they are distractingly long, and anyone who wants to read it can download the pdf from SSRN at the link above.

One short note about what is in this speech-essay. I call for Guantanamo to be closed in this piece. But I make it conditional on very specific and frankly unlikely events - viz., the legislative creation of a special counterterrorism/national security system that, while 'civilianized', does not put everyone into the regular US court system. We need a system of civilian administrative detention with processes for regular review, and we need a system for trying terrorist offenses, narrowly defined as a matter of substance and not applicable outside of terrorism thus narrowly defined (ie, no using the Patriot Act to prosecute (unrelated crimes of, say) child pornography - but which has its own set of more permissive procedural and evidentiary rules. If you can get that, then moving away from the miltiary tribunal system, closing Guantanamo and moving those not released to the US, etc., makes good sense. If not, well, then not.

People need to be clear that not everyone at Guantanamo - even beyond the undisputed "high value detainees" - is merely the innocent shepherd sold by the Northern Alliance. Hamdan was not, on his own admissions. Guantanamo contains people who were detained for regular war crimes on ordinary Afghan battlefields - including the murder of US military personnel - under circumstances which have always warranted military justice. Pure political expediency, not justice, argues for letting them go - and moreover, we already know that released detainees have returned to the battlefield, and more would do so if released - the people they will kill, however, are more likely to be Afghans, or people in Asia, than Americans.

Looking to the future, merely closing Guantanamo does not change the fact that we will pick up people whom we will want to detain for potentially years and yet will not be able to try in a regular court under regular domestic court rules. Either we find conditions of administrative detention, or ... well, what? We might find that we have thereby created an incentive not to detain, but instead to engage in assassination. Or we might look to sponsor proxy forces - eg Ethiopia in Somalia - somewhat in the way that Reagan policy used proxies and surrogates in Central America. Or we might rely on the French and Spaniards and other European countries and the fact that, despite the Western European human rights protection, structurally Continental legal systems provide nowhere near the legal protections of the US constitution in criminal investigation and prosecution, as a structural feature of an inquisitorial, rather than adversarial, system. Or perhaps we simply won't do much of anything at all - caught in stasis between clashes of different policies and different legal standards and different decisionmakers, frozen and immobile - the disaggregated state unable to be proactive in the protection of its citizenry - and so make a very different kind of bet about our safety.

It is easy for the Democrats and Congress to pretend that it is all otherwise and that we can just go back to Sept 10 criminal law paradigms, with some modest increases in homeland security, with targets that won't complain about discrimination - inanimate cargo containers, for example. Possibly the Democratic party would even enact that preference if in charge of the presidency and Congress. But I doubt it. We live at this moment in a period of Republican-facilitated Democratic kibbbutzing - facilitated and enabled by the Cheney policy of pure executive power - sniping without having to take proactive responsibilty and ownership of what protecting against terrorist attacks should mean as a going-forward policy of the United States. That condition is unlikely to last forever and, at the end of the day (if for no other reason than the fact of a new attack), the electorate will know where their leaders stand on counterterrorism and the legal regime shaping it, the necessary and inevitable tradeoffs between security and liberties that define counterterrorism in a liberal democracy.

So by all means let us avoid a police state - although what numbers of my colleagues in the legal academy seem to regard as the police state we supposedly already have seems to me a dangerous case of boy-crying-wolf - but let us also strive to avoid piles of body parts in American cities. The truism that there are necessarily trade-offs between these two is increasingly something denied by a significant part of elite opinion. The academics act as the high-intellectual end of a narrative that an increasing part of the electorate is eager to hear and absorb - there is no real terrorism danger, it stems from our own policies and attitudes, the problem is not terrorism but the invasion of civil liberties, talking about terrorism is simply a way of justifying the police state. Terrorism is not therefore the issue; counterterrorism is. 'They' are not the issue, 'we' are - and ignoring 'them' and focusing on 'us' promises a way back to the blessed land of nostalgia, a way of going back to live in the time of lovely ignorance, otherwise known as September 10, the quiet life, the morally unstrenous time of Before-Bush.

The intellectuals' attitude is not explainable, it seems to me, except on the assumption - which I wearily hear repeated without dissent at many, many academic conferences - that really there is no terrorism problem, except the one that the Bush administration created by invading Iraq or - the more intellectually grand alternative - the one that the West created for itself by being so intolerant of Muslims and Islam and, of course, Israel. But anyway, on either narrative, the problem turns out miraculously not to be terrorism, but instead our own viciously overreactive counterterrorism, which simultaneously creates a police state and promotes a cycle of Muslim radicalization.

Terrorism, on this account, is merely a second order problem. But it's not.


Marty Lederman said...

Boy, we must attend radically different conferences, Ken. Who are these "intellectuals" who "repeat" -- without dissent! -- "that really there is no terrorism problem, except the one that the Bush administration created by invading Iraq or - the more intellectually grand alternative - the one that the West created for itself by being so intolerant of Muslims and Islam and, of course, Israel"?

That "the problem" ("the" problem? can't there be more than one?) is not terrorism but "our own viciously overreactive counterterrorism"?

That "terrorism . . . is merely a second order problem"?

Honestly, I hang out with a *lot* of critics of this Administration -- and read the articles and blogs of many more -- and I've never heard a single one express views anything like these.

I'm not denying that there are folks out there who say such things -- there are folks who say anything and everything, of course. But they aren't part of the mainstream conversation about the Bush Administration's policies, and certainly don't have any constituency among any policymakers that I'm aware of.

KA said...

Marty - and here I thought I had driven away all serious readers with discussions of recipes for cooking salmon and reviews of Rene Char! Nice to hear from you. Well, I can think offhand of four academic/policy meetings I've attended in since January, three here in the US and one in Europe, where this was precisely the sentiment - expressed as "the" problem. I don't think I'm arguing against a straw man - this is what I hear frequently in academic and policy discussions. I readily grant, for myself, there can be and of course is more than one issue, and they are not mutually exclusive. That is precisely the point of asking what the tradeoffs are - and with the exception of one polite exception by a panelist, I am not hearing demurrals. In discussions with the human rights folks around Elisa Massimino's and my paper on counterterrorism, for example, that was again the expressed sentiment - to the point that she was being asked why she would get involved in writing something that involved trying to judge these kinds of tradeoffs. Perhaps I am more sensitive to hearing this but, sure, in Europe in the last few weeks, London and Paris, that was precisely what I heard - the phrase "second order problem" is not mine, alas - it's a rather good one, yes? - but wrong. Interestingly, when pressed about this - this was true, at least, in the US, but not so much in my discussions in Europe - if for example, I made a comment about terror being its own problem whatever else the issues of counterterrorism, many discussants beat a sort of retreat to the position that of course there are multiple problems. (In London, on the contrary, a mere week or two before the latest stuff, very serious conversations with serious people who were out to tell me that *the* issue was counterterrorism in the US especially driving a backlash of radicalism. And the depth of conviction such that I don't think the Piccadilly and Glasgow incidents would change any minds.) In my anecdotal experience over, say, the last six months, merely for what it's worth, the starting point was not multiple problems, but instead that the war on terror is the problem and terrorism as such is is second order. Your experiences seem to have been different; I wouldn't dispute you about that.

Anonymous said...

The Congressman from Ground Zero [Ramesh Ponnuru]

A few weeks ago, former White House aide Bradford Berenson testified before the House Judiciary Committee about the much-debated question of whether suspected-terrorist detainees should have habeas-corpus rights.

During one exchange, Rep. Jerrold Nadler (D., N.Y.) had this to say: "I don't see how you can pick up someone in New York and say that his rights are different or less because he's accused of being an enemy combatant, based on whatever information, as opposed to his being accused of being a murderer. . . ."

Berenson responded: "[W]e need to be clear about what that means. It means that if we had captured Mohammed Atta on September 10th, we would have had no choice but to treat him as a criminal defendant, which would have meant no interrogation, no intelligence, and the World Trade Center is coming down."

Nadler interjected, "That's exactly right."

The exchange is around the 51 minute mark here:

Anonymous said...

Marty Lederman says even hanging out with a lot of administration critics he has never heard a single one express views of "terrorism ... merely a second order problem." How about the widely noticed, even widely celebrated article by political scientist John Mueller in Foreign Affairs, 2006, arguing that not only is terrorism not a second order problem, it's not even a problem? Titled "Is there still a terrorist threat?" and answering ... no.