Friday, June 30, 2006

Juan Cole watch (1)

This will become a regular feature here as we point out the inanities, slanders and sometimes anti-Semitism of the head of the Middle East Studies Association (an academic discipline that has basically "gone native" and would hardly be missed).

Our Hero assures us, in his never-ending vigilance against all misdeeds, that the poor dear Palestinians have gone without electricity ("what did the children do to deserve this," he asks. A: Shit like this). Even worse, he snorts, Hamas probably had nothing to do with the capture of Cpl. Gilad Shalit:

The likelihood is that the captors of the Israeli soldier are freelancers. This wasn't something plotted out by the Haniyeh government ...

Well, Juan. Hosni Mubarak disagrees with you. He seems to think Hamas had something to do with it, and says he successfully negotiated the Israeli soldier's release with Hamas (which kinda presupposes that Hamas would actually have Cpl. Shalit, or have sufficient control over those who do, to deliver him.)

In remarks published Friday, Mubarak told the pro-government Egyptian newspaper Al-Ahram that "Egyptian contacts with several Hamas leaders resulted in preliminary, positive results in the shape of a conditional agreement to hand over the Israeli soldier as soon as possible to avoid an escalation. But agreement on this has not yet been reached with the Israeli side."

Whom to believe ... the president of Egypt or a conspiracy-minded crank? We report. You decide.

UPDATE: Well, apparently Hamas itself (or to be more precise, its military wing) says it's holding the Israeli soldier hostage. Here from AP:

Early Monday, Hamas' military wing — one of the three groups holding Shalit — issued a statement giving Israel until 6 a.m. Tuesday (11 p.m. EDT Monday) to start freeing the prisoners. The other two groups are also Hamas-linked.

Whom to believe about Hamas ... Hamas or Juan Cole ... decisions, decisions ...

Thursday, June 29, 2006

"Justice Stevens has made his decision ...

... now let him enforce it."

That's what a real president presiding over a real polity that seriously understood that it was at war would say. Alas, the Gitmo decision will probably stand, and even before the sun was down tonight, Bush was saying he'd abide by the ruling and Republicans in DC were saying they'd provide legislation to authorize tribunals (why? For reasons I'll explain below.)

All that's strictly necessary to know how wrongheaded and destructive of US security this decision is is to look at who is praising it: The New York Times; The Washington Post; the ACLU; CAIR which wants to close Gitmo outright; The Nation; Human Rights Watch; Amnesty International.

Not exactly the people you'd want to have your back in an alley. They'd be more concerned about whether the guy attacking you was given a fair chance to back out of the fight, whether his daddy beat him or his mommy didn't love him enough 20 years ago, whether you landed one below the belt, and whether your beating him will piss off his friends. Exquisite moral neutrality is their stock-in-trade.

But the decision itself is awful, awful, awful. Here is Justice Kennedy, from the AP story:

"The Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment."

Actually, this is exactly what this abominable decision to treat enemy soldiers as common criminals is NOT. Time-tested traditions have always used military tribunals in wartime — George Washington, Andrew Jackson, Abraham Lincoln and Franklin Roosevelt all used them; sometimes with Congress's OK, sometimes not. But never has it been American tradition that the Supreme Court gets to decide issues of the conduct of war and override the president's judgement. The true breathtaking arrogance of the decision lies in these tidbits from Kennedy's ruling.

● "The government has made no demonstration of practical need for these special rules and procedures."
● "These structural differences between the military commissions and courts-martial ... remove safeguards that are important to the fairness of the proceedings and the independence of the court."

The Bush administration had argued that because affording due process would require, among other things, require the revelation of classified information, of the identities of agents and turncoats. As Justice Scalia put it: "The principal opinion on the merits makes clear that it does not believe that the trials by military commission involve any 'military necessity' at all. ... This is quite at odds with the views on this subject expressed by our political branches." This decision may have been erroneous or poorly-thought-through, but it is fundamentally a decision for the political branches, particularly the president as commander-in-chief, to make. As James Yoo points out: "They replaced his wartime judgment and Congress' support with their own speculation that open trials would not run intelligence risks." That decision is above the justice's pay grade. Simply not theirs to make.

The very fact that Kennedy felt free to write the first-bulleted sentence is precisely the problem. And because he's a lawyer, trained to think about procedures in a stable polity where the rule of law reigns unquestionably, he doesn't realize that the second bullet unintentionally makes the administration's case. Military tribunals are not primarily designed for the civilian value of procedural due process. So even if Congress does authorize tribunals, the very logic of the decision is that they will more-closely resemble civilian trials or courts-martial. What Yoo rightly calls "the circus that was the trial of Zacharias Moussaoui" will be repeated 500 times over if these terror suspects are treated like burglary suspects or even murder suspects within a sovereign state. The whole point of sovereignty, the social contract and citizenship is that it they grant privileges, immunities and rights that cannot effectively exist in nature. And our relationship to illegal-combatant foreigners is at most natural, and so they are entitled to nothing under the law, only whatever grace or mercy may lead us to bestow.

There is now no excuse for not realizing that we are in a September 10 world. This decision is the latest symptom of the lawyerization of foreign policy ("Don't turn over Osama bin laden to us; we don't have enough evidence to get a conviction). Under the Supreme Court's logic, soldiers will have to read Miranda warnings or shout "Halt!" to enemy soldiers before they shoot them. And keep in mind that legitimate uniformed soldiers who can be counted on, for the most part, to fight by the Marquis of Queensberry rules, are entitled to far more under the laws of war than illegal combatants (as must be the case, in order to give incentive to fight by the Queensberry rules, lest they be turned into pious platitudes). A Washington Post columnist also revealed more than he intended with his very first words:

It seemed almost too much to hope for, but the Supreme Court finally called George W. Bush onto the carpet yesterday and asked him the obvious question: What part of "rule of law" do you not understand?

Now set aside the image of the justices calling the president "onto the carpet" as they they were the principal and he was some misbehaving student. More importantly: Mr. Robinson, what part of "war" do YOU not understand? The very fact that you (and some arrogant robed men) see this as a matter of the "rule of law" is the very problem. War does not take place under law; it is the antithesis of law, the ultimate acknowledgement that THESE differences cannot be settled peacefully, under law. That this case existed at all, much less was decided the way it was, is simply the taking of this philosophical error to its logical conclusion.