WB: The War of Laws – Moon of Alabama

July 2, 2006

WB: The War of Laws

Billmon:

In my opinion, the war against Al Qaeda (and the various branches of Islamic terrorism that have grown from the original trunk) is a war, and a highly deadly one, even if doesn’t fit well in a legal framework based on conflicts between sovereign states — or at least organized armed groups controlling defined pieces of real estate. And that conflict fully justifies the application of presidential war powers in certain areas, including the detention and treatment of enemy combatants, the creation of military commissions to try them, etc.

The War of Laws

Posted by b on July 2, 2006 at 05:24 UTC | Permalink

Comments

Billmon buys into the War on Terror. Wow.
Reminds me of Spengler:
‘Without the reader’s observing it, the paper, and himself with it, changes masters.’

Posted by: Dick Durata | Jul 2 2006 5:52 utc | 1

I think this argument is the same sort of argument that is formulated daily at the DNC, and I think that it is a mistake.
I do believe there is a difference in motivation between Billmon and the DNC, Billmon wants the Demoplicans to win and somehow turn into Democrats after their victory, and the Demoplicans, who are making nearly the same special interest money now that they did when they were in power, see no real need to win any elections. Their patrons will be well served and generous win or lose.
But reading the mind of “the people”, of their reaction to things that have not yet happened, and tailoring your actions based upon the effects of this exercise in mind-reading, especially at two steps remove, seems a formula for disaster. I’m sure FOX is screaming about the NYT, but is anyone really listening anymore?
The polls show that people are fed up and pissed off at everybody in Washington. The way to “play” this is to run against the incumbent politicians and their policies, and against the media and their complicity with the politicians. Not to wait for them to self destruct, not to be meek and thus to inherit the earth. The earth is in rougher and rougher shape every day.
I think a truth teller would sweep almost any election at this point, vilified by the media all the way no doubt. And a real opposition paper would sell like hotcakes right now. If the NYTimes is caching sent of the coming twilight of the neocons and following the money, let them pile on.
The rope-a-dope defense did work once, but poor Ali’s brains were beaten out. Without brains there are no ideas and we need radicle ideas to get us out of the mess we’re in.
As Harry Truman is said to have said about the real SOB and the pretend SOB, a majority of folks will take the real thing anyway.

Posted by: John Francis Lee | Jul 2 2006 5:58 utc | 2

I agree with John Francis Lee’s earlier comment on The Law of Wars. So I’ll just repeat it:

And I think this is where I disagree with him, certainly with the thread of Lind and Richards.
The idea that everything changed on 9-11 is a fraud.
The US, the US/israeli Axis in the Middle East, has been pursuing policies rooted in injustice there for decades. The blowback was long overdue. It may as well be that the present regime in the White House failed to prevent the occurence of 9-11 out of “benign neglect” as out of incompetence. We may never know.
Osama bin Laden and Al Qaeda might be construed as actors, but their ability to act is in turn rooted in the desperate straits of the people among whom they live and plot, from whose midst they act, and in whose midst they hide. Take away the underlying desperation that is the necessary precondition of their continued existence and they are gone. Stop pursuing policies rooted in injustice, eliminate the reaction to it, and you eliminate the criminal acts such as 9-11, that have been profitably misconstrued as war.
Al Qaeda is like Baader Meinhof. They are a criminal gang. Pursue them, capture them, try and imprison them.
Yet if we do not concommitantly uproot the injustice at the base of our policies there will be an immediate replacement.
This whole “war on terrror” is the cynical misuse of the predicatable blowback from decades of exploitation and expropriation to redouble that same exploitation and expropriation.
The Liberal establishment is as wedded to this “adventure” as the present regime. The Demoplican establishment is not lacking in backbone, it is doing the job its paid to do.
Billmon, according to his stated opinion in the paragraph above, buys into this “war on terror” stuff.
The Lind/Richards routine is more of the same discussion and justification for the “war” that isn’t a war and doesn’t have to be.
Those who profit from these conflicts and the hatred and slaughter they engender are either cynical nihilists, resigned to others’ suffering for their own benefit or, in willful denial of reality, mistakenly think they have something to gain from a ride on the coattails of those who have no compunctions about plunging the whole earth into hell to slake their greedy thirsts.
I have no arguments with Billmon. I’m just an admirer in the stands. He’s on the field. His focus, analysis, and his development of ideas is breathtaking and always a pleasure to read.
But if he has truly bought into this war on terror business, this clash of civilizations stuff, I disagree. That’s all.
It’s quite possible that the US is done. That there will be no popular recognition of its criminal decline, no collective revulsion that finally brings the decline to a halt at least. It’s hard to imagine the US ever enjoying the position it once did in the world. But I hope that things do stop getting worse. I do hope that we can at least stop murdering innocent people around the world, thumbing our chests and congratulating ourselves while we do so.

Posted by: b | Jul 2 2006 6:06 utc | 3

I disagree with the idea that Billmon has bought into the “war on terror”. He long ago accepted the fact that the US was attacked 5 years ago, and has faced up to the fact that the attacking organization still slinks the earth. Maybe because we let them go, maybe not. But he has constantly and consistently counseled against falling into al Qaeda’s bloody trap. We didn’t listen.
A month or so ago, when faced with the utter hypocrisy of John Yoo, I asked, “I believe we have found someone to play the role of William Roper in the Berkeley production of “A Man for All Seasons”. Now the question is, who will play Thomas More?”
Billmon has stepped up and accepted the role.

Posted by: Steve Jones | Jul 2 2006 6:50 utc | 4

Slinks?

Posted by: Dick Durata | Jul 2 2006 7:07 utc | 5

Hmm I hardly know where to begin except to say that it is heartening indeed to see that so many MoA habitues have come out so strongly in opposition to this ‘when the philosophy is Islam all the rules go out the window approach’ to maintaining civil order in the best interests of the citizens. It’s that last bit that matters most and it is precisely the interests of the citizens which are the most compromised if our authority shifts the ground rules on the basis of the culture or the philosophy that is understood to be disrupting that order. No point in wasting breath in here explaining that. I’m pretty sure most MoA habitues understand Voltaire better than they can paraphrase the man.
Anyway enough sly digs the point really is that the reason given in the “War of Laws” pontification is based upon either a complete ignorance of history or a deliberate shunning of it.
This bit:
“the war against Al Qaeda (and the various branches of Islamic terrorism that have grown from the original trunk) is a war, and a highly deadly one, even if doesn’t fit well in a legal framework based on conflicts between sovereign states — or at least organized armed groups controlling defined pieces of real estate.
This is balderdash on two distinct levels.
Is it designed to insinuate there is something new about a mob of well tooled thugs roaming the earth looking for fresh pickings whilst espousing some philosophy?
Hmm I wonder what Alexander originally from Macedonia latterly from wherever he could lay his head would think of that. Or Ghengis Khan or Che Guevara for that matter. OBL is the favoured son of a corporate scion, perhaps his sojorn in the lands of the Pathan, will come to be known in future centuries as The Anabasis of Osama.
However since all of the above is more sophistry than much else lets get to the heart of it which is slightly involved with Osama’s Daddy and corporations, because we are talking legal entity.
That is a corporation is judged under the law as being an entity which can own things and even on occasions (very rarely unfortunately) can be found to have committed crimes.
Much of international law is founded on the supposition of nations as legal entities. Nations can commit crimes or own assets or have a national interest. However if we really study our history we find that most nations in the areas where the USuk assholes are mostly likely to piss off the locals, have nations that are artificial constructs. That is the nations aren’t based upon common cultural heritage, shared interests or extended familial relationships at all.
They are artificial constructs forced on the people of those nations by the very same interests that are confronting them now. In typical Catch-22 asshole trickery as soon as these people do try and align themselves into entities, nations if you like of common heritage, family and ethos, the opposition throws out the rule book and wages war with no boundary other than their own naked self interest.
Without even considering the justice of that lets look at it purely from a USuk self interest point of view.
What is it about the 21st century apart from that the consciousnesses extant in it, are, extant in it, that makes USuk able to imagine that this sort of gross injustice won’t fan the flames of righteous indignation, which has been sustaining the people of the middle east for millenia? The righteous indignation which ensured that these indignants don’t stop fighting until they are either dead, or the perceived injustice has been righted? This line of thinking arises from such unjustifiable arrogance, that it fair takes one’s breath away.
Lastly of course, the law is most often used in situations where the party held accountable for ‘upsetting the social order’ is not acting for any artificial entity. He/she ‘did it yer worship’ for him/herself and his/her own.
In those cases it has never been acceptable or neccessary to toss out due process, habeas corpus, the burden of proof or any of that shit, so why is it necessary to do so when the criminals are resource owning Muslims?
The US has been arresting, charging, convicting and imprisoning people who have never set foot on US soil, since the “War on Drugs” got up and running at least two decades ago.
Now that often is extremely unjust. In fact this is where many of the worst stunts that the rethugs have pulled on muslims standing between USuk and oil first originated. The law has always applied though, as has the constitution, (well sort of). The point is, it is eminently possible to enforce laws without resorting to throwing out the rules, and ‘making them up as you go along, just because you’re scared.
The War on Drugs is fighting an enemy far larger than Al Queada has ever been, with more resources and who are much more harmful to joe amerikan, yet there isn’t a Gitmo for wandering Colombians (yet). There sure as hell soon will be, if well meaning people don’t think the current bullshit properly thru.
There will be a Gitmo for each and every one of us.

Posted by: Anonymous | Jul 2 2006 7:16 utc | 6

Can we please get away from this “War on Terror” nonsense. Treat it as a criminal act, go catch the bad guys. Recognize that the locally self-radicalizing are just geeks with time on their hands, living out of their parent’s basement just like a whole bunch of other North American kids.
I’m disappointed that Billmon accepts the underlying legetimacy of this “War”. Where is the evil?
After McVeigh blew up Oklahoma, did anyone suggest a UN resolution to sanction Montana; or send in WMD inspectors; or bomb them back to the stone age. We are bigots and racists to the core.
You are dancing on the nuance of court interpretation – counting angels on the head of a pin.
If you believe in a Just Christ, the bad guys will rot in hell. Otherwise, and the courts withstanding, they are away scott free.

Posted by: Allen | Jul 2 2006 7:29 utc | 7

The Gitmo detainees are only dangerous if they ever get out and decide to spend the rest of their lives seeking revenge, even then it is unlikely that they would be of much threat as the simplest thing that can be done is to take the biometrics so that these people would never ever enter the USA and could only target foreign outposts. A captured disarmed soldier away from his unit poses no danger even if he started out a terrorist/enemy combatant/jihadist monster. The only threat posed is so asymmetrical that it only operates in some different dimension known only to Gitmo commander’s nightmares. Unless because these detainees hate America, it is sufficient to ascribe them a continued threat. However, if hating America is the measure of threat, then Gitmo is not large enough and the majority of threat is loose all over the world. We also enter a strange fantasy world where these detainees begin to take on character of criminals and psychopaths that are being kept away from repeat offending by being released from incarceration. When Bush talks about these “killers” he is suggesting that they will come for you when they get out. But unless they are released for residence in your immediate neighborhood, they are not of any threat at all. A few hundred weary soldiers of jihad rejoining their brethren in Afghanistan is not a big deal and besides the war in Afghanistan is over is it not? If it is still going on isn’t that the problem? Maybe there is no point to extracting obsolete intelligence from a random sample of poor sods who managed to be unlucky enough get plucked out of the Afghan war zone and rendered to Gitmo. They were to star in a production of propaganda complete with fake justice by fake courts with phony evidence to continue to pump up the fear to justify the continuation of military adventure overseas, which is not just a failure but an expensive failure, and a criminal venture at that. As propaganda it is having the opposite effect but only because of the excesses of the captors and there are still too many people buying into accepting the fiction of threat

Posted by: YY | Jul 2 2006 10:39 utc | 8

I cannot understand why Billmon, who usually comes across as extremely clear-thinking, could write “But I also don’t think the old rules really work any more …”. I don’t see how he can write this because of the brutally simple fact that the “old rules” were never tried. Just to be literally correct, Billmon should have written “But I also don’t think the old rules would have really worked any more …”. Right from the start the administration declared that they need new powers because the existing law was inadequate and the they could not fight their “war” with one hand tied behind their back (the gloves have to come off, etc, etc, etc). Split milk I guess – we may never know now. Since they were never tried we don’t know how existing laws would have stood up in our supposedly all-new world. Everything apart from the bloody mess that that currently exists (as a result of people deciding they weren’t going to play by the rules anymore) is pure conjecture. What I do think is that settled law is remarkably robust and generally has the ability to adjust to “new” developments without needing to be completely revised. Before anyone starts arguing that changes are needed they should first demonstrate, not merely declare, that existing structures have failed.

Posted by: det | Jul 2 2006 10:45 utc | 9

Yes,
this is where the real lefties hang out.
The concensus is over-whelming I am with the concensus. The War on terror is not a war (though the wars on Afghanistan and Iraq are). A war is legally a state of affairs between two states. To proclaim that the WOT is a war (and not just a phrase as the War on drugs), is just one of the ways the Bush gang has been trying to undermine the possibility of a rational discourse by redefining concepts. The US ambassador to Sweden wrote a nice piece on Guantanamo, stating in effect that “illegal combatants” can be held indefintely beacuse the Geneva convention does not mention the word “illegal combatants”. You said I could not go swim in the lake but you never said anything about the river!

Posted by: A swedish kind of death | Jul 2 2006 12:55 utc | 10

Billmon……….
Is that Billmon?

Posted by: Cloned Poster | Jul 2 2006 13:47 utc | 11

Billmon wrote:
To withstand a long war, the rules for identifying and detaining POWs have to be sustainable — legally, morally and politically.
The llloooong war.
Who exactly does Billmon think the US is fighting? Insurgents, or guerillas, or whatever, in Iraq – people living under occupation – who predictably don’t like it too much and blow up US trucks?
The Taliban? For what, pray? The ‘Taliban’ is now a code word for local potentates – called war-lords by the US press – who control much of Afgh. outside Kabul. All the people in power there are running the drug trade together. Karzai, with his sexy bonnets and robes, is a figurehead for the Western Press. The drug trade is just a way of life. The international community (not just the US) has seen to it that any peasant who wants to feed his family has no choice. It is the only way money can be made out of that place (for the moment, excepting low level humanitarian scams, and very mild other things, basically some service stuff to to the Overlords..) so it is full steam ahead. The poppy trade, in fact, has finally seen to it that the occupation of Afgh. is very hands-off.
Al Quaida? Who has heard or seen anything of them in the last 5 years, besides dodgy tapes from the poster TV boy villain Binny? This is fantasy. AlQ has no real existence. No power, no possibility to act. Of course, Usuk and the Aussies will regularly make some feeble moves to show that Muslim terrorists are right on the block, sharing the streets with ordinary decent loving citizens. The authorities don’t push it too hard, because it is not necessary, they know the scene, have analysed it right down to the basics, there is not much of a problem there, nothing much needs be done. (Pace the victims of 7/7) It is a slow business that will bear fruit in time. Soccer moms and Regular Joes will come to hate Muslims because their farm failed, their daughter died of leukemia, liberuls love evil Palestinians who corrupt children and degenerate metrosexuals, the local school closed, gas prices rose, etc. and as usual, they will sends their sons to war. (Does Billmon have sons?)
War against poor Columbians? Haitians? Somalians? Nigerians?
Why?
What is the looong war about?
Who is the US fighting?
I’d really like to hear.

Posted by: Noisette | Jul 2 2006 13:48 utc | 12

I am not even going to read this one from Billmon. In fact I don’t know if I’ll read him any more.
Quote:
The War on terror is not a war (though the wars on Afghanistan and Iraq are). A war is legally a state of affairs between two states. To proclaim that the WOT is a war (and not just a phrase as the War on drugs), is just one of the ways the Bush gang has been trying to undermine the possibility of a rational discourse by redefining concepts.
—
I totaly agree with you.

Posted by: vbo | Jul 2 2006 13:51 utc | 13

@Noisette:
Don’t go muddying the waters now.

Posted by: Anonymous | Jul 2 2006 14:18 utc | 14

Ok, 😉 , lets stick to the law, things look uppable, and lofty arguments. Now the POW issue is I think somewhat clear and has been gone over… As everyone knows, the civilian population on Iraq and Afgh. has been mistreated, to put it oh so gently.
1) The US has NOT ratified Protocol I and Protocol II, additions to the four (1949) Geneva conventions. (It was Reagan who refused them.) They mostly deal with the protection of civilians, and extend the GE conventions to situations of ‘guerilla war’ and others. Australia and GB have; Afghanistan and Irak have also not signed them.
With the exception of scholarly articles, blurbs on the Geneva conventions, etc. usually gloss over this matter, and refer to the Protocols as accepted, and use formulations like ‘considered to be part of international law’, ‘accepted as part of Int’l law’; and the distinction between the Conventions themselves and the Protocols is often not made, and so one cannot make out what is being referred to – people use the expression ‘Geneva Conventions’ indifferently for the whole lot (with the protocols) or only a part (conventions 1-4.) Their motives for doing so vary. All of them aim to fool sheeples.
It is facts like this that make it proper (if vague and shoddy!) for someone like Rice to say that the US supports “the principles” of the Geneva conventions.
Reagan 1987
Protocol I (red cross)
Procotol I (read it) – again, not ratified by the US – shows quite clearly all the points the US army and others feel they are exempt from. That is one of the dangers of these kinds of treaties.

Posted by: Noisette | Jul 2 2006 15:21 utc | 15

@Noisette:
Why don’t you write a longer piece(s), drawing all the sharp edges, and submit to Bernhard.
You seem to have a very good knowledge
of the subject matter.
Thank You.

Posted by: Anonymous | Jul 2 2006 16:02 utc | 16

noisette i agree with *16 – a longer piece would be helpful

Posted by: r’giap | Jul 2 2006 16:15 utc | 17

Noisette- I third that request for a longer post.
–and what Allen and John Francis said.
acts of terrorism are not war. thinking that hopefully someone else will not abuse power is nonsense to me, and the actions of the current cabal have more to do with sustaining the unsustainable, as b real said on Crime and Punishment, as they do with terrorism.
the 9-11 attacks were the best thing that ever happened to bushco. a legitimized “long war” would be the second best — along the lines of the ex-Nazis overstating the threat of Russia in order to maintain their cushy positions in the US after WW2.

Posted by: fauxreal | Jul 2 2006 16:53 utc | 18

The Four Geneva conventions
1. For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Sets forth the protections for members of the armed forces who become wounded or sick.
2. For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Extends protections to wounded, sick and shipwrecked members of naval forces.
3. Relative to the Treatment of Prisoners of War. Lists the rights of prisoners of war.
– This is what the designation ‘enemy combatants’ was for – the POW conditions would not apply.
4. Relative to the Protection of Civilian Persons in Time of War.
Geneva conventions
In the early 70’s it was felt that the Geneva conventions were too pointed towards ‘combatants’ – soldiers, POWs, etc. and that civilians deserved stricter protection – or clearer mention – in the Conventions.
The protocols then written up were so largely because of criticism of an ‘old hat’ view of war – consenting parties slogging it out in virgin territory, a pov which gradually was questioned and was felt to be inadequate – a growing awareness that civilians were often the first, or main, victims.
Protocol I and Protocol II (I am leaving II out for simplicity’s sake, I also left out President Carter, and will continue to do so) thus extended the rights of civilians, or the rules that should apply to them.
They were additions to the Geneva conventions, elaborations, clarifications, extra matters, and did not amend or change in any way the original conventions. They were almost like footnotes, making clear or spelling out what was meant.
Protocol I
Snippets – random choice, many other pertinent bits could be quoted:
It is, in particular, prohibited to carry out on such persons, even with their consent: (a) physical mutilations; (b) medical or scientific experiments; (c) removal of tissue or organs for transplantation, except where these acts are justified in conformity with the conditions provided for in paragraph 1.
Medical units shall be respected and protected at all times and shall not be the object of attack.
The following shall not be considered as acts harmful to the enemy:
(a) that the personnel of the unit are equipped with light individual weapons for their own defence or for that of the wounded and sick in their charge; (b) that the unit is guarded by a picket or by sentries or by an escort; (c) that small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the units; (d) that members of the armed forces or other combatants are in the unit for medical reasons.
The Occupying Power has the duty to ensure that the medical needs of the civilian population in occupied territory continue to be satisfied.

Posted by: Noisette | Jul 2 2006 17:40 utc | 19

@Noisette 19
thanks so much for posting that info… I believe you mistakenly posted the link for Protocol II as Protocol I… the correct link for Protocol I is http://www.ohchr.org/english/law/protocol1.htm
I am shocked to learn that US has not ratified Protocol I… can you elaborate on that, as to why it has not happened?
As to Protocol II, why are you not referring to it or to Carter, as you indicate? Sorry to be so dense – thanks

Posted by: Anonymous | Jul 2 2006 20:58 utc | 20

forgot to sign my post, sorry, that was Crone at 20

Posted by: Crone | Jul 2 2006 20:59 utc | 21

@my post 20, to Noisette
I apologize, you covered Protocol II upthread… (I must be suffering my sometimers in my old age!) That leaves a question though about Carter…

Posted by: crone | Jul 2 2006 21:26 utc | 22

It seems that for once everyone at MoA is largely agreed on a subject. That is that the notion that the actions of Muslim fundies AKA Al Quaeda (never can spell that word the same way twice) whilst evil and destructive are neither different enough from many other extremists thrown to the surface by imperial oppression , nor dangerous enough to warrant throwing the baby out with the bathwater ie ‘bombing the village to save it’ or destroying freedoms to stay free.
Most of us have read enough of Billmon’s work to know that he doesn’t usually have a substantively different view to that either.
That is he appears to this time is probably indicative of issues totally unrelated to the matter at hand.
Billmon is a quality writer and commentator. That doesn’t mean he has reached a state of godhead like perfection, where any divergence in his thinking need be treated as proof of fraud.
In his ‘rules of war’ piece he made a statement which many/most of us find untenable. Doubtless he has his reasons for taking this position.
Speculating on what they may be is not only futile but damn rude so I shan’t speculate.
But perhaps we need to accept the hand of friendship offered by Billmon on the occasion of MoA’s 2nd anniversary, while appreciating that for whatever reason, Billmon needs to draw a firm line in the sand between himself, who, during the corrupt, mendacious and soul destroying BushCo era, has become a persona larger than the virtual existence the human who writes the Billmon pieces originally constructed, and, a part of his audience.
Don’t read Billmon’s work if reading it bores you, but why stop reading it just because, for whatever reason, Billmon felt compelled to seperate himself from some of the opinions we post here.
The issues we discuss here are issues most of us are passionate about and everything Billmon has written that I have read indicates to me that Billmon shares that passion.

Posted by: Anonymous | Jul 2 2006 22:29 utc | 23

@ crone
from what I have been able to find it appears that Protocol II was agreed upon during the Carter administration and Carter could not be bothered to sign it.
What seems to irk a lot of people is that while flogging his book he implies that the current admin is not following the rules he refused to adhere to.

Posted by: dan of steele | Jul 2 2006 22:34 utc | 24

noisette
thanks for these clarifications.

Posted by: slothrop | Jul 2 2006 22:36 utc | 25

Spot on #23

Posted by: Friend | Jul 3 2006 3:11 utc | 26

All I got to say is — that its been one hell of a weekend here at the moon, dare I say, its been EXCEPTIONAL !!

Posted by: anna missed | Jul 3 2006 4:48 utc | 27

thanks dan of steele for the info… and many thanks indeed to Noisette for all the info above…
Anna missed… I find any day at MoA an exceptional one! (but then I’m partial)
Billmon, thanks for all the articles — seems like Christmas with so many the past week… namaste

Posted by: crone | Jul 3 2006 18:40 utc | 28

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