Friday, November 25, 2005

The war on terror beyond the Bush administration second term

Apart from the conduct of the Iraq war, the most important foreign policy-national security task of the second Bush term is the institutionalization of the war on terror. By "institutionalization" I mean the creation of permanent structures of ideology, politics, security, and war that provide the foundation for defeating the threat posed by Islamofacism over the long term.

The model, of course, is the Cold War, and it has been much discussed since September 11 (I think in particular of an excellent Peter Beinart article in The New Republic, I believe, several years ago). The fundamental point is that the Cold War in the United States - despite much pro-Communist sympathy and more among the intellectuals, even long past the point that Stalin's regime was crystal clear - was deeply bi-partisan. The leadership of the anti-Communist union leaders was a source of irreplaceable moral authority, one which profoundly distinguished the United States from European labor. The defeat of the Wallace Democrats meant that the nation as a whole was firmly against Soviet communism. There were inevitable compromises between the anti-communist left and right - compromises that have emerged today as strains in the modern welfare state with Soviet communism defeated - but they were compromises between visions of the welfare state in a democratic society, not deals necessary merely to ensure no defections to Stalin.

The lessons of that time are indeed applicable today, as the necessity of a long term struggle against jihadism becomes plain. As things stand, however, the Bush administration, in the name of preserving absolute executive power in its hands, has refused to lay the groundwork for a long term, bipartisan strategy against jihadism. I do not say this as a Democrat, and I say this as a firm supporter of President Bush, the war on terror, the war on Iraq, and his foreign policy in general. But it is time to look beyond this administration, and ask whether this administration's war on terror can or will last beyond it. The Bush administration's war on terror is in grave danger of becoming an orphan child the moment that it leaves office. The reason is simple. In order (understandably) to preserve maximal executive power, the administration has refused - apart from the Patriot Acts I and II as essentially domestic security legislation - to work with the legislature to establish the terms of the war on terror on three pillars: war; intelligence, interrogation, detention, surveillance, and covert action; and policework.

Imagine that Truman had been a Republican, not an anti-communist Democrat, dealing with the opposition party in establishing the terms of the Cold War. Could there have been a coherent Cold War strategy, had he tried to hold all the national security cards in his hand, in the name of preserving the full constitutional reach of presidential power? He might well have preserved executive power - at the expense of containing the Soviet Union. The war on terror is already losing its imaginative grip on the American public; its intellectuals and the chattering classes have long since dismissed it, gripped as they are by the Iraq war and in the absence of a second 9-11. Either a Democratic or Republican administration - and in some respects a Republican one even more - might be well inclined to downgrade the war on terror as at best a necessary but temporary reaction to 9-11 and at worst a dangerous fantasy of the Bush administration.

If one believes, as I do and as I trust the Bush administration does, that the war on terror is a deep and necessary thing for some long time to come, then the only way to institutionalize it is to make it a permanent institution. And the only way to do that is by establishing it in legislation. That legislation needs to be reasonably bi-partisan, even in the current environment. It does not need the Michael Moore left, the Move-on crowd, the folks who believe the head of the hydra is George Bush. It doesn't need John Kerry or Ted Kennedy. It doesn't even need Rep. Murtha. But it does need John McCain - and, believe me, no fan am I - and it would be helpful if it had Senator Clinton, even as the product of her coldly reptilian political calculations.

And the most difficult subject of that legislation is neither war nor policework - the boundaries being reasonably clear on each. No, the question is the "new" form of conflict raised by transantional terror, the question of covert action, surveillance, interrogation, detention, and so on. The piece of the war on terror, in other words, that has proved the most difficult is the intelligence piece, partly because it involves fundamental failures at the operational level - the CIA, especially - but also because it involves policy and moral decisions taken in the past, in other circumstances, that are not sustainable in the face of the possibility of another 9-11 or potentially much, much worse. Those policies involve the deepest issues of what constitutes acceptable interrogation practice, what level falls below that into actual torture, whether interrogators may use greater pressure on a captured Zarqawi than they could on someone whose role was genuinely unknown, who should review detention or interrogation, the scope of cooperation with foreign intelligence services, and many, many similarly troubling questions.

(My own view is that the McCain amendment commits the serious error of bringing into what should be treated as an "external" intelligence activity US constitutional standards about humane treatment. There should be a minimum standard of humane treatment, yes, but it should be defined specifically for purposes of this new kind of covert and intelligence struggle. It should, for example, as noted above, provide for differing levels of treatment of someone known to be a bad guy, such as Zarqawi, versus the possibly innocent shepherd. It should not adopt constitutional standards that operate in relation to a US domestic criminal justice system whose fundamental aim is not about national security of the United States and protecting its people from, for example, nuclear or biological or chemical terror, but about criminals who, however awful their crimes, are still deviants within the social order, not jihadists at war with with it. The constitution should be seen as defining a bottom floor for how we deal with people, including criminals, within our political community - not for how we deal with people who come to make war against it using the methods of terror. Not entitled to the standards of the laws of war for legal combatants, because they use the methods of terror, yes, we have an obligation to establish minimum standards - standards that can usefully draw on existing minimum standards in the laws of war, such as Common Article 3 of the Geneva Conventions. But those minimum standards ought to be established for the particular and specific purpose of this new kind of intelligence war. Likewise, in my view, it is time to establish special tribunals with special rules of evidence and secrecy for dealing with terrorist suspects who are US citizens, drawing carefully on the long existing models of Western Europe. One may have very different views about how in fact to address these and other issues. The point is that, whatever the specific compromise answers, they need an overarching legislative frame.)

Unless the troubling questions get some kind of reasonably comprehensive, specific, widely-agreed upon answers - so that people on the ground doing the actual work know what is legal and what is not - then either abuses will occur because the ground rules were deliberately unclear or else no one will be effectively interrogated, with possibly catastrophic results. There are people within the Bush administration seeking to make clear the need to establish plain, permanent structures - Matthew Waxman, at DOD, for example - but in fact the wholly counterproductive attachment to pure executive power still holds sway. It is long past time for this administration to declare that, without prejudice to or concession of its views on the scope of executive power in matters of foreign policy and war, a lasting war on terror requires a legislative framework. Beyond the Iraq war, and barring something enormous, such as collision with North Korea or Iran, this is the foreign policy issue for the Bush administration.

(As I've mentioned before, I am looking to organize a short conference in the spring on these issues at my law school with the Hoover Institution. So I will be exploring these ideas here in tentative form over the next few months.)


K. Scott said...

Re 'insitutionalizing' the war on terror, I think your position suffers from several perspectives. There is every evidence to presume that the point of many if not most of the policy positions of the Bush Administration was to "insitutionalize" the Republican Party, as well as aggrandize Executive power, it most certainly was NOT first and foremost to proect the US. The tail has been wagging the dog for some time, you really think the Administration even wants to change now?
Secondly, you posit worse treatment for some detainees based on their asserted importance and foreign status: this without judicial oversight. There is little evidence that coercive interrogation yields good information, and much that it does not. In addition, the lack of judicial oversight would quickly enable the policy to descend to nightmare, as it has done already. Please review the documents from Gitmo if you believe otherwise. Lastly, I assume you would have no objection then to similar tactics - with no judicial oversight or any transparency - being used on US citizens abroad? Water boarding of CIA operatives perhaps? Or of Seals, or even army? It is simply insufficient in law or logic to suppose that such tactics be used only in 'opur just' cuase, but not theirs. A common standard is needed, or the standard lowers to the lowest common denominator - that has been the lesson of history, and particularly of the last few years. Finally, changing the standard for some detainees but not all, in some instances but not all, smacks of conflating the jus ad bello and the jus ad bellum - if not directly, than very analagously. Doing so does more than simply confuse, it detroys the enitre edifice fo intrnational humantarian law.
In summary, you trust this Administration too much, government too much, the torturer too much, and oddly enough for a professor of law, show entirely too little practical interst in the Rule of Law.

Marty Lederman said...

Professor Anderson: I think it's very interesting that you've now suggested several times that "we have an obligation to establish minimum standards -- standards that can usefully draw on existing minimum standards in the laws of war, such as Common Article 3 of the Geneva Conventions," but that "those minimum standards ought to be established for the particular and specific purpose of this new kind of intelligence war."

I, too, have been trying to persuade folks that the single best, simplest solution to the torture scandal -- the best start, anyway -- would be to codify the standards of Common Article 3.

But I'm curious, then, how it is that you and I can be hinting at the same solution: How could the standards of CA3 conceivably be "modified" to have new, and special, meaning for the interrogation of international terrorism suspects? Imagine, for instance, a statute that incorporated CA3, and that thus provided that "every individual in the custody or under the physical control or effective control of the United States Government, regardless of nationality or physical location, shall in all circumstances be treated humanely, and the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; and outrages upon personal dignity, in particular humiliating and degrading treatment."

I don't see any way in which these standards could be "construed" to permit the sorts of techniques that the CIA and military have been authorized to use against Al Qaeda suspects. See, e.g.,

I, for one, think that would be a good thing.

But you appear to be suggesting that "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" might take on a different, much more forgiving, hue with respect to this new category of detainees. I don't see it -- not, at least, without doing real damage to the ordinary English meanings and common understandings of these words.

Am I missing something? Or would you actually have us abandon the CA3 standards?