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It's not about civil liberties - it's about endless war!

I didn't have time this week to write about Attorney General Eric Holder's speech at Northwestern. But I did read both the speech and a lot of the reaction from the left about it.

The over-riding issue that I see is a total disconnect from WAY too many on the left about what the real issues are. I tend to agree with them that the direction some of this is going sounds troubling. Can the President of the United States order the military to kill someone he alone determines to be a threat? You have to admit that if the answer to that is "yes," it raises serious questions.

But the problem I have with almost all of the analysis of these questions is that the left wants to frame it as a civil liberties issue when its not.

To begin to understand where the problem really lies, all you have to do is look at the brief wording of the Authorization for the Use of Military Force (AUMF) passed by Congress in 2001 just after 9/11.

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.

Note that the President is authorized to use "all necessary and appropriate force" against persons he determines to be a part of Al Qaeda (the group responsible for 9/11). In the case under discussion, Al Awlaki made no attempt to conceal the fact that he was a member of Al Qaeda. So the AUMF gave the decision about whether to kill him to the President's discretion.

As Holder made clear in his speech, the rules of war are not governed by the same civil liberties we expect otherwise from our government. And if applied during a more traditional war, those ideas would be nothing if not ridiculous. No soldier is going to go to court for judicial review before killing someone that is deemed to be a threat. And no Commander in Chief would be expected to do that either. As I've noted before, the same applies to indefinite detention during a time of war. To think those are civil liberties issues is faulty logic at best and laughable at worst.

The issue we on the left have to grapple with then is not one of civil liberties, but in defining the appropriate frame for what it means to tackle the threat posed by an organization like Al Qaeda as opposed to, for example, the Axis powers of WWII. It seems clear to me that they are not the same thing. And so the concept of "war" as we've known it in the past is - for me - equally troubling as a frame.

I believe that is what AG Holder and President Obama are attempting to do. With their Constitutional duties to protect the people of the United States, they don't have the luxury of simply ignoring the threat or hamstringing their operations with the kind of judicial oversight we have come to expect in civilian life. And yet we've seen how horribly wrong this kind of power can be in the hands of a president like George Bush. We can't afford to ignore that reality.

The truth is, I don't have the answers to this one. But I'd suggest that if liberals want to engage in any meaningful action on this, we're going to have to grapple with the very real questions involved and quit screaming about civil liberties. The one thing I know for certain is that until we do, we can't afford to make a mistake in who we elect to be our Commander in Chief. I'm pretty comfortable with the guy we have wrestling with all this in the White House right now. And the one's with an "R" after their name scare the hell out of me.


  1. bang on, Smarty, bang on. And reassuring to read somebody making that case. Was wondering if I was going mad given that the majority opinion seems to be that this is a civil rights issue.

    If the US is at war, this is all fair game. So the question should be - how does the US draw back from a War on Abstract Emotion, and what would be a better framework for future issues of this type?

  2. Well, I have not ever been accused of being a poutrager, so I feel I can say it: it may not be a civil rights issue, but it is a human rights one. The problem to me is inherent in how states operate, and this is ultimately the problem with framing rights in civil rights terminology. Civil rights are those given by a government, and therefore those which can in whatever circumstances be taken away.

    It's obvious the President understands this, and I'm sure that the idea was that a warring state can't by its own logic--this came up a few minutes ago in a thread on another site--drop its war powers before it drops the war. The President made clear effort to close Guantanamo early in his tenure and was shot down politically. The upshot is that Guantanamo is going to stay open long after the wars end, most likely. If he tries and fails to stop this nonsense while the wars continue, I can't see how he's not toast, politically, which will leave the Bush-era policies intact not only for the moment but for the foreseeable future after the wars actually end. A Republican will not end those policies in peacetime, but a Democrat will.

    I do not think I'm giving the President too much credit. On the contrary, it's incumbent on the Greenwalds of the world to demonstrate how in the broader context of his behavior the President is someone who really, in his heart, was looking forward to holding people without charge. If they can't, we need to imagine that maybe there's a broader logic at work. Doesn't make the policy OK, though.

    I'd add that--all this was part of the discussion during the last administration--the gathering of intelligence and prosecution of crime is most effectively done in the aggregate by entirely Constitutional means. There's no functional defence of the adoption of these policies in the aggregate. It's the ending of them that's tricky.

    1. Bill,

      What I see is that in prosecuting al Qaeda, PBO has been firmly on the side of using judicial processes. He and Holder have both argued very strongly for that.

      What they have not been willing to do is subject their decisions about fighting al Qaeda to judicial oversight. Perhaps that's an important distinction for a different framing.

      And when it comes to Guantanamo - as you said, closing it was stopped by Congress. But the issue remains, Obama wanted to move some of them to "indefinite detention" in the U.S. We'd still have to end the "war" to see the possibility of actual release.

      What happens though is that these issues do get so complex in efforts to both clean up the mess created by Bush and setting the right kind of policy going forward.

    2. No doubt, no doubt.

      I suppose for me--I don't think you're in any disagreement--the focus needs to be on the long arc toward righteousness, as well as an axe I have to grind with the equation in so many people's minds of civil rights with human freedom. The Greenwalds could easily note that millions of people are underfed in this country with terrible consequences to the society broadly, but looking at things from that perspective makes comfort less comfortable.

      I don't think the issue is that complex, though. It needs to stop, it's fairly clear that's the plan, and the plan involves maximizing the ability to accomplish other goals by minimizing political blowback. I can go with that. I'm of the "it's going to take generations so we have no time to lose" crowd.


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