Rule of Law vs. Forever-war

Today, I’m doing what I said I’d do yesterday. I’m defending my position against The Apologist. I will go through his comment paragraph by paragraph.

Shawn, detainees are found to be unlawful combatants, or not, under the Geneva Conventions and the UCMJ. You don’t try combatants, lawful or unlawful, in federal court. You never have and you never will. There is only one thing which has changed since 9-11. Terrorism is now considered an act of war, not simply a criminal act.

Timothy McVeigh committed an act of terror. Let’s say McVeigh did what he did today. According to you, terrorism is now an act of war. Thus, McVeigh committed an act of war against the US. He must now be considered a combatant. He must be tried in a military tribunal, no?

Yet, habeas corpus should still apply. He’s a citizen. If you believe that the MCA doesn’t strip citizens of the right to habeas corpus, we have reached a dilemma.

The situation is not as clear-cut as you would have us think. You cannot treat every act of terror as if it was purely an act of war.

A problem I didn’t address in my original entry was the fact that to be declared an unlawful combatant, you need not commit a terrorist act. All you have to do is provide material aid to a terrorist organization, which further blurs the term, “act of war.”

There exist gray areas. The solution is not to let the executive decide who’s a combatant and who’s not. The terrorist exists in a vacuum when it comes to international law. The solution isn’t ceding more power to the executive, to let him decide which legal residents, on US soil, should be detained or not detained. Where there is too much gray, it is better to extend the rule of law, than to expand the prerogative of the executive. We must outlaw terrorism under international law. Read: The Dread Pirate Bin Laden. Doing this will do more to reduce terrorist acts than to allow the executive to prosecute a forever-war against small, disparate bands of extremists.

The next paragraph I have to split into two parts.

Your objections remind me of the infamous “Gorelick wall” between the CIA and the FBI. You cannot prosecute a war in court.

Ah yes, because I think it unusual for the writ of habeas to be suspended for legal residents on US soil, I must have a pre-9/11 mindset, n’est-ce pas? To say that we are either at war or must treat terrorists solely as pre-9/11 criminals is to introduce a false dichotomy. “You cannot prosecute a war in court” sounds very convincing on paper, but how does this work in real life? Since terror as a tactic will never be fully extinguished, you’ve now given the executive permanent war-time powers. Bravo. Instead of giving the president more discretion, we could extend the law so that we can treat terrorists differently than other criminals.

Wild eyed speculations and farcical morality tales about random people being disappeared by the Stasi are unserious. This is a real war. Real people are dying every day all over the world at the hands of Jihadi terror. You are treating it like a poli-sci thought experiment.

Here, you completely mischaracterize my argument. I specifically say that those wild-eyed speculations don’t matter, using “It doesn’t matter” multiple times in the same paragraph. I was engaging in something called abstract reasoning. “This is a real war” is hardly an argument for cavalierly dismissing the entirety of philosophical enterprise. Just because there’s a war going on, doesn’t mean you give up the right to question the actions of your government. Just because people are dying, doesn’t mean you don’t try to consider the consequences of your government’s actions. As a conservative, it is my duty to put out my hand and say, “Stop!” It is my duty to call for prudence. You give a president power today, and you don’t know what the president 20 years from now will do with it. Humans beings are imperfect and it is inevitable that we will occasionally elect truly corrupt individuals. The Constitution is not created to guarantee that the best person will get the job, but so the tyrannical man cannot screw things up too much. I’m saying that we’re treading down a dangerous road, giving the executive power that has the potential for abuse.

And to throw in a cheap shot, maybe Bush and Rumsfeld should’ve done some thought-experiments about the aftermath of Iraq.

The Constitution remains what it has always been. No one has c[e]ded Supreme Executive Power to the President. Congress can always repeal the law or amend it if it proves too broad or leads to abuse. Congress retains all [its] powers of oversight. The Executive is still subject to Congress and the Courts. Congress has an inherent power to determine the Court’s jurisdiction. It has done so. It can undo so if it sees fit.

Let’s not be clinical when we talk about the circumstances in which Congress may decide to repeal the law. “If it proves too broad or leads to abuse” means innocent people shoved in jail forever and not given a lawyer. Like I said before, as a conservative, it’s my job to call for prudence. Maybe we should try not passing laws that could lead to broad abuse. Maybe we should exercise caution instead of saying, “Yeah, let’s give the President the power to indefinitely detain legal residents and we’ll think about repealing it if too many people wind up in prisons.”

I do agree that the President doesn’t have Supreme Executive Power. Luckily, we still have the courts. But the Supreme Court doesn’t have the power to convene and strike down a law. The trial process takes a long time. Congress doesn’t appear to be growing a backbone anytime soon. In the interim, we have too much potential for abuse.

Does this automatically preclude military action? No. The war in Afghanistan was just. However, there is a vast world of difference when you declare the entire world, including the US, to be a battlefield. The point is that the situation isn’t merely a decision between war and treating them as pre-9/11 criminals. There are many additional factors to take into account.

In conclusion, it doesn’t mean I have a pre-9/11 mindset if I engage in abstract reasoning. It doesn’t mean I have a pre-9/11 mindset if I have a respect for the rule of law, which is essential for liberty. When it comes to acts of terror, it is nonsensical to treat all of them purely as acts of war. Instead of letting the president indefinitely detain legal residents to fight a forever-war, we should figure out how we need to change the law to effectively reduce and punish terrorism.