War: What Is It Good For?

Martial rhetoric is not enough to justify preventive detention.

"Apparently using the word war where terrorists are concerned is starting to feel a bit dated," former Vice President Dick Cheney complained in his speech at the American Enterprise Institute last week. Although he implied that the Obama administration showed weakness by using "euphemisms that suggest we're no longer engaged in a war," he added that "these are just words, and in the end it's the policies that matter."

But as President Obama showed in the speech he delivered the same day, he still clings to the language of war when discussing terrorism. Like his predecessor, he uses such rhetoric selectively, to justify departures from standard legal procedures when they prove to be inconvenient.

"Let me be clear," the president said early in his speech. "We are indeed at war with Al Qaeda and its affiliates."

Is this a literal war? Apparently not. Several paragraphs before, Obama had noted that "we're fighting two wars," referring to Iraq and Afghanistan. While elements of Al Qaeda or its affiliates may be involved in both, they are not the main enemy in either country.

The literal and metaphorical meanings of war collide in Obama's plans for the 240 remaining detainees at Guantanamo Bay. "Whenever feasible," he said, "we will try those who have violated American criminal laws in federal courts." But he added that "detainees who violate the laws of war" are "best tried through military commissions."

Isn't that all of them? The Bush administration said anyone accused of links to Islamic terrorism violated the laws of war by definition. Attorney General Eric Holder has endorsed the view that the battlefield in the war against Al Qaeda is not limited to scenes of combat and that anyone the government thinks is tied to the network, no matter where he is captured, can be detained by the military.

The Bush administration switched back and forth between military detention and civilian prosecution of terrorism suspects, with no apparent rhyme or reason. It's not clear yet what criteria the Obama administration will use to decide whether detainees should be tried in federal court or by military commissions, which even with the reforms outlined by the president will offer less protection against wrongful conviction.

Obama also wants to keep some detainees locked up indefinitely without trial, a policy identified with the prison he plans to close and the administration he criticized for ignoring due process. In contrast with the Bush administration, he promises "clear, defensible, and lawful standards for those who fall into this category."

The "lawful" part sounds promising, since it's generally preferable to deprive people of their freedom based on statutory authority rather than presidential whim. Yet an institutionalized system of preventive detention, justified by a war that Obama concedes will never come to a definitive end, could be worse than Bush's ad hoc unilateralism.

Obama's preview of the standards for "prolonged detention" was puzzling. "There may be a number of people who cannot be prosecuted for past crimes," he said, "but who nonetheless pose a threat to the security of the United States." He mentioned "people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans."

As Obama noted, defendants like these have been successfully prosecuted in federal court. The only specific reason he suggested why some detainees can't be was "tainted" evidence. By that he presumably meant "statements that have been obtained using cruel, inhuman, or degrading interrogation methods," which were never admissible in federal court and which Obama wants military commissions to exclude as well.

If there are other reasons why trials are not feasible for some terrorism suspects, Obama needs to explain them. The extraordinary, ominous step of preventive detention cannot be justified simply by saying these detainees "remain at war with the United States." Cheney is right: These are just words.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

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  • ||

    When the government coffers are filled by profits from the military-industrial complex, the only way to turn a profit is to be constantly "at war" with something.

    WWII brought a swift end to the Great Depression. I suspect that some expect that the War in Afghanistan is thought by some to be the way out of our current economic downturn.

    Not sure how to turn a profit in the War on Drugs.

  • ||

    While elements of Al Qaeda or its affiliates may be involved in both, they are not the main enemy in either country.

    Reference? Link?

    Once captured they swear they are goat herders and so it simply must be true? Only a complete fool would believe the EVIL government over the peace loving Mohamadean?

  • Nikola T||

    Not sure how to turn a profit in the War on Drugs.

    Seizures, Seizures, Seizures! Oh, and extortion, kickbacks, money laundering...

    Hell, when you think about it, there's a whole government industry in the War on Drugs. Did I say increased taxation?

  • John Tagliaferro||

    Someone clue me in, is Pi Guy a regular troll or just a victim of public education?

    WWII brought a swift end to the Great Depression.

  • Alan Vanneman||

    Well, getting back to what Jacob said, it was depressingly on point. Obama talks about empathy. Why doesn't he practice it? When it comes to the "war" on terror, hypocrisy seems to be his strong suit.

  • John Tagliaferro||

    Well, getting back to what Jacob said, it was depressingly on point. Obama talks about empathy. Why doesn't he practice it? When it comes to the "war" on terror, hypocrisy seems to be his strong suit.

    I would say Politician first, Leftist close second. But those two have no monopoly on hypocrisy.

  • ||

    When it comes to the "war" on terror everything, hypocrisy seems to be his strong suit.

    There, fixed it.

  • Joel||

    So...help me out here, I've having a hard time understanding. If you torture incriminating information out of someone, that's bad and the "evidence" should be excluded from a trial no matter where the trial is held. Got it. But in those cases they'll just go ahead and lock the guy away forever, because that's much more just. Right?

    I want a time machine. I want to go back and kick my elementary school social studies teacher in the balls. He lied to me about all that "good guy" stuff.

  • ||

    When the government coffers are filled by profits from the military-industrial complex,

    I suspect that the balance sheet for the military-industrial complex shows a net outflow from the Treasury.

    Obama talks about empathy. Why doesn't he practice it?

    When your overriding project is increasing the scope and power of the State, empathy is a sometimes thing, at best.

  • ||

    The Bush administration switched back and forth between military detention and civilian prosecution of terrorism suspects, with no apparent rhyme or reason.

    I can't reconstruct the time line. But the way I dismember it, they switched every time some court ruled they couldn't do what they were doing.

  • Barry Loberfeld||

    Military preemption -- the "Bush Doctrine" -- is nothing but global gun control. The Commander in Chief has turned the U.S. military into Handgun Control, Int. and intends to use it to disarm every rogue nation out there: first, Afghanistan; now, Iraq; next, Iran, North Korea, and God knows where else. And what about all the terrorist cells that don't provide us with an identifiable "Japan" to target? How will any of this prevent a monster from walking across our border and unstopping a jar of anthrax in a major city? How can we pretend that the military can disarm every rogue in the world any more than the police can disarm every rogue in the country?

    You will notice, N., that the finding of no weapons of mass destruction hasn't been taken by the White House as a reason to bring our troops home. On the contrary, it's seen as a need to invent a new reason for their presence there: We must bring democracy, not merely to Iraq, but to the entire Middle East! Well, that's a good thing, right? No, not at all. N., we pay taxes for our Suffolk County police to fight crime here in Suffolk, not to go fight robbery in Cairo, rape in New Delhi, and murder in Berlin. It is no less a dereliction of duty for our national forces to do anything other than defend American lives and liberties.

    READ THE FULL ARTICLE.

  • ||

    """Military preemption -- the "Bush Doctrine" -- is nothing but global gun control."""


    Global gun control started with the idea that no country we dislike shall have weapons equal to ours. That started way before Bush.

  • Mike||

    This just in! "The tea party protesters are engaging in a war on empathy.", said Barack Obama. "We are going to send as many as we can to Gitmo."

  • Marian Kechlibar||

    I am not an expert on the economical history of the thirties, but I lived under impression that Hitler's large scale militarization program in 1933-1939 pulled Germany out of high unemployment (as high as 43 per cent in 1932).

    Of course, relative political stability (compared to the last years of the Weimar republic) played its part too.

    However, once the weapons were ready, the next logical step was to plunder the neighboring countries. At that time, Czech parts of Czechoslovakia were noticeably more wealthy than Germany, and Germany wasted no time after the occupation (1939) to start the wealth transfer. It was mainly done by fixed, unnatural exchange rate between reichsmark and protectorate koruna.

  • ||

    "There may be a number of people who cannot be prosecuted for past crimes,"

    Future crimes on the other hand can and will be prosecuted? 1984, thought crime. This is why I don't buy american anymore. It's a totalitarian state.

  • ||

    """I am not an expert on the economical history of the thirties, but I lived under impression that Hitler's large scale militarization program in 1933-1939 pulled Germany out of high unemployment"""

    Which was followed by a sizable decrease of population. That's one way of changing the person/job ratio.

  • ||

    ""I am not an expert on the economical history of the thirties, but I lived under impression that Hitler's large scale militarization program in 1933-1939 pulled Germany out of high unemployment"

    Which was followed by a sizable decrease of population. That's one way of changing the person/job ratio."

    Although some people had been killed in Germany during the early years of the nazi regime, there had not been a sizeble decrease of population yet by 1939. Of course from then on that changed.

  • ||

    Glenn Greenwald on how the govt decides what method to use to try detainees:

    If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

    Sounds pretty accurate to me.

  • ||

    Thank goodness this wasn't by Cathy Young!

  • Scarpe Nike Italia||

    is good

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