February 07, 2010

Roadblogs to Governance?

Recently (on Groundhog Day) Robert Wright wrote an Op-Ed for the New York Times in which he argued, on a basis I didn't completely understand, that the world of blogging and the Internet in general was making the country "ungovernable" for Obama, citing (I think) the ease of organizing public opinion into pressure groups in a "frictionless, low cost way" that makes it impossible to navigate policies to successful fruition in Washington.

The open forum nature of the Internet does make it possible for an overwhelming array of opinions on everything to enter, instantaneously, the bloodstream of national discourse. Of course, for probably 99.999% of all such blogging, that's about where it begins and ends. Talk. Most of it sheds more heat than light. I do think that the best of the blogs offer analysis and factual reporting that is simply unavailable in the mainstream media. The rest of it (perhaps me included) is just another form of the "e-mail forwards" that were all the rage during the culture shock years of the early Bush Administration. That's actually why I started doing it. It didn't seem fair, or even polite, to impose an opinion on someone just because they were in my address book. Just put it out there as an exercise of First Amendment rights.

The coverage of the Christmas Day bomber is an excellent case illustrating the usefulness of the Internet in rounding out the analytical picture, as accomplished by the blogs. The fracas here centers around whether Abdulmutallab should be treated as a "criminal" or an "enemy combatant." Similarly, an inchoate "national conversation" followed the decision to try Khalid Sheikh Mohammed in New York City, in federal district court, which the Obama Administration is now backing away from. If I were to derive all of my information and legal framework from the usual national media (cable and network news, conventional press, radio), and I had no legal background of my own, I would probably not know that there is, after all, an existing statutory and Constitutional structure under which these issues are supposed to be decided. Very similar to this issue is the question whether Khalid Sheikh Mohammed (KSM) should or should not be tried in federal district court in New York, as opposed to before a military commission in Guantanamo.

Jane Mayer in The New Yorker does her usual excellent job of chronicling the sequence of events which led to the decision to try KSM in New York, the resulting firestorm of criticism, and then the waffling by Eric Holder and the Justice Department. It's worth reading at http://www.newyorker.com/reporting/2010/02/15/100215fa_fact_mayer. What's evident from this account is that the Obama Administration's equivocation has to do solely with political considerations, and many of those calculations emanate from Rahm Emanuel, the White House Chief of Staff. Emanuel feels Obama "needs" the cooperation of Sen. Lindsey Graham of South Carolina to close Guantanamo, and he can't get that cooperation without trying KSM in front of a military tribunal. Mayer notes in passing that Emanuel is a "non lawyer."

Yeah, and that's kind of the point. We are supposed to be a nation of laws, not men. That was the most important principle in the founding documents of this country. The Patriots (the original New England Patriots, not the gridiron version) had had their fill of arbitrary English decisions handed down by King George III and Parliament. They wanted, most of all, a reliable, predictable legal structure. As we phase out strict adherence to the Bill of Rights, that is what we are moving away from, and that is very, very dangerous.

For example, we should simply figure out and act consistently about this "civilian trial," "crime paradigm" versus "war on terror" argument. It should not be decided by mob rule, even if members of the mob are Rudy Giuliani and Lindsey Graham. What's it gonna be? The argument now usually takes the form of rhetorical questions: What shall we do, give Osama bin Laden his Miranda rights? For Jim DeMint, Mitch McConnell, Sarah Palin (and Dianne Feinstein), the argument is won simply by posing this question. But that doesn't actually answer the question. "Liberals" are being frightened away from bedrock principles of civil liberties by browbeating and accusations that they are "soft on terror." Barack Obama is not soft on terror, and neither is Eric Holder. But the political climate (and not the one created by the Internet) is apparently forcing them (so they say) to make up rules on the fly in order to stay ahead of the increasingly lawless trends in this country.

That's not what we need. Here's what the Authorization for Use of Military Force dated September 18, 2001, actually says about the President's authority to use the military apparatus to deal with the threat of terror:


    (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

So the general consensus of opinion is that al-Qaeda was responsible for the attacks, and the Taliban was complicit in harboring and aiding. So there's a starting point. So how do we determine when someone is an "enemy combatant" under this AUMF and when they're a common criminal, thus becoming a "person" within the meaning of the 5th and 14th Amendments? (And the term "person," as recognized by the Bush Administration in giving civilian trials to Richard Reid, the Shoe Bomber, and Zacarias Moussaoui, the "20th hijacker" and a member of al-Qaeda, applies to everyone in U.S. civilian custody, not just to American citizens.)

The problem, of course, is in formulating a clear, Constitutional rule. Do we want to say that any Muslim who engages, or attempts to engage, in an act of terror or asymmetrical warfare against the United States is an "enemy combatant?" That's actually how we enforce the concept, if you think about it. Whether they are a member of "al-Qaeda" is often pretty hard to tell. Were the 19 hijackers of 9-11 members of al-Qaeda? It seems likely that the ringleaders, Mohammed Atta and Marwan al-Sheihi, were actually radicalized through connections to the Egyptian jihadist movement known as the Muslim Brotherhood, and then went over another line into full-scale terrorist planning as the result of "exposure to the West" in Hamburg, Germany. Congress, the White House, and all the mainstream opinion-makers don't know if they can come up with a satisfactory statement of policy which doesn't seem (a) overtly racist or sectarian or (b) unconstitutional. So the response is to make it up as they go along, referring to the AUMF (as Bush did) as if it answered anything, which it doesn't, not really. Is this Christmas Day bomber in the same category as the 9-11 hijackers because they can connect his training to al-Qaeda in Yemen nine years after 9-11? What is al-Qaeda, exactly? I think it's an organizational structure that we superimpose on Muslim groups which may or may not have anything to do with each other in order to keep them within the framework of the AUMF.

Bush denied habeas corpus rights to the enemy combatants at Guantanamo, using the AUMF as the legal basis for the designation of the detainees there as enemy combatants, but that didn't work out when tested by the Supreme Court (which was the same result in the Hamdan case regarding the constitutionality of the Military Commissions Act procedures).

The whole thing is a mess, but the real danger is in the arbitrary nature of the responses by government officials and the complete politicization of civil liberties, which are supposed to be decided by legal principles, not mob rule. I think the real position taken by the government (both Bush & Obama) is as I've stated: a Muslim jihadist engaged in terror activities will be treated as an enemy combatant, because the war on terror is a war, not a crime-fighting exercise. It just isn't much like any other war we have fought: no uniforms, no specific national allegiance of the enemies or backing of a specific foreign power, no entity capable of "surrender" or signing a peace treaty. And no end in sight. Whether everyone (and everyone on the Internet) agrees with the wisdom of such a statement, it is nevertheless vital to enunciate the principle so we don't get too used to deciding things as King George III did a long time ago.

Opinions on such matters, expressed by individuals on the Internet, don't produce a country which is "ungovernable." They simply fill out the picture and keep the discussion from being cast solely in terms of the "manufactured consent" of a narrow bandwidth of the "opinion elite," who increasingly decide everything solely in terms of the next election cycle. I guess it's a jealous guarding of such "horse race" politics that the New York Times feels is threatened. Call guys like Glenn Greenwald, the lawyers at Balkinization and Cenk Uygur "roadblogs" and we're good to go.

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