Today's topic, The "Law Values" War: Black-Robed Generalissimi, is the fifth in a ten-part series.
The Supreme Court's “General of Generals” June 2006 war case decision proves anew what should be well understood by all: Lawyers and judges can lose a war, but cannot win one; no country ever won a war by having the best legal system.
Begin with the daft details of Hamdan v. Rumsfeld (2006), in which the Supreme Court considered an appeal on habeas corpus grounds filed on behalf of Osama bin Laden's former bodyguard, an appeal that also challenged the military commission procedures adopted by the Administration to try terrorist detainees. The Court issued a tripartite ruling in which it: (1) ignored the plain intent of the 2005 Detainee Treatment Act in which Congress sought to vest exclusive jurisdiction of habeas corpus appeals in the U.S. Court of Appeals, D.C. Circuit, by an expedient parsing of legislative language and the record of the debates in Congress; (2) shoved aside decades of traditional deference to executive discretion, using a provision of the Uniform Code of Military Justice (UCMJ), a set of laws designed to try American service personnel, to find the Executive's procedures "impractical" and thus require the President to seek express Congressional authorization for procedural deviations from the UCMJ; (3) applied Common Article 3 of the Geneva Conventions, despite their foundation requirement that only those who comply with Geneva are entitled to its protections, which if applied would effectively end our ability to glean intelligence from detainees, a commodity of which we have immense need and few alternative sources to tap.
What does one do when five Justices of the United States Supreme Court engage in an exercise of linguistic gymnastics that makes Lewis Carroll's Humpty-Dumpty seem amateur by comparison? Alternatively, one is reminded of how Ambrose Bierce, in The Devil's Dictionary, defined a lawyer: "One skilled in circumvention of the law" and "lawful" as "Compatible with the will of a judge having jurisdiction." In (Hamdan v. Rumsfeld the Court did so, not only as to what the law is, a temptation to which all judges, being human, are subject (albeit in varying degrees), but also as to fact, a relative rarity, even among activist judges. What can make five members of the nation's highest court assert that in going after al-Qa'ida in their Afghanistan lair the US was intervening in a conflict "not of an international character?" Jetliners crashing into Twin Towers in Manhattan, the Pentagon and a field in Pennsylvania, bombs exploding around the globe, and five members of the nation's highest court stick their heads in judicial sand.
To appreciate the Alice-in-Wonderland quality of the majority's opinion, read Justice Scalia's withering dissent on how the majority twists and selectively applies legislative and drafting histories behind the 2005 Detainee Treatment Act. And to appreciate how selective the Court majority is re the settled principle of judicial deference to the Executive, especially in time of war, see Justice Thomas's dissent. Thomas notes that the same Justices who declined in Hamdan to defer to the Executive did defer recently, in upholding a ruling by the Army Corps of Engineers, no less, that a storm drain on private property is a tributary of a navigable public waterway, and thus subject to environmental regulation! (Those with less time to read legalese at length can refer to the delicious two-pager posted on NRO by poli-sci professor Matthew J. Franck.)
Alas, Congress is not up to the remedy, which is to remove court jurisdiction over war matters. And worse, the media, whose mainstream (MSM) agrees with the result—application of one part of the Geneva Convention to the terrorist detainees (MSM would have preferred wholesale application of the entire Geneva Accords)—decline to inform the public about these judicial games. A public which has neither the time nor the education to review opinions of the Supreme Court never learns of the games played, and simply assumes that the Justices are applying in good faith the law to facts everyone knows.
And now the scary part: It is inconceivable that the Court majority would manipulate language so baldly about matters of readily ascertainable fact, simply to impose slightly different rules on military tribunals. Rather, the Justices have loaded their guns for future cases, in which, one may expect, more of Geneva toy be applied to the detainees, whenever anything we do violates the sense of fair play held by five Justices.
Let's look closer at Common Article 3 (termed "common" because this provision, as with certain others, is found in all four of the 1949 Geneva Conventions) of the Third Geneva Convention of 1949. Common Article 3 reads as follows, in full—and note italicized section 1(c), which creates an open door for future judicial meddling to stop treatment of detainees that a majority of the Court dislikes sufficiently to rule it as within 1(c) and thus prohibited by international law:
In the case of armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties, each Party to the
conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."
Language in 1(c)--"outrages," "dignity," "humiliating and degrading"--pave the way for future judicial back-door importation of more Geneva rules to treatment of detainees, with the requisite denial of ability to interrogate aggressively--or even, to interrogate at all, in any manner, without detainee consent. AEI scholar John Yoo, a member of the 43 Justice Department that devised the original rules, details how the majority (excuse a pun) tortured legal language to apply Geneva to terrorists. Such words are grist for any jurist to interpret as broadly or narrowly as personal taste dictates. Our ability to glean valuable intelligence as to future attacks, and possible changes in organizational structure of Islamist terrorist groups may thus rest, in event of additional adverse Court rulings, on the sensibilities of five Justices who more solicitude for Osama's bodyguard than for Executive discretion in wartime. The Court’s eagerness to review trial procedures before an actual trial, which would have provided the factual context courts traditionally deemed essential for effective judicial review. Reviewing a hypothetical case is impermissible in federal and most state courts, being what lawyers call an “advisory opinion”; that the Supremes acted here in just such a case speaks volumes as to the intent of the majority Justices.
That the majority adopted three improbable constructions, each expanding their own judicial power at the expense of the legislative as well as the executive, brings to mind what former intelligence office, later spy (James Bond) novelist Ian Fleming once said: "Once, happenstance; twice, coincidence; three times, enemy action." The Justices are not through playing word games, unless one or more of the Hamdan majority departs the bench, or if Congress passes the President’s new proposal addressing the Supreme Court’s ruling.
But above all, there is a lesson for the Administration in this, one LFTC has repeatedly warned not to ignore: It was never a good idea to apply legal procedure to detainees, confusing punishment and prophylactic sequestration in the public mind--and all this for putting on trial to date only 10 of some 900 detainees. Worse, doing so conflated a fundamental tripartite conceptual, both moral and legal, distinction between readily separable classes of detainees: (1) common criminals, who are entitled to the full panoply of due process rights regardless; (2) lawful combatants, who are entitled to the full protection of the Geneva Conventions--provided they themselves comply; and (3) unlawful combatants, who, as non-compliant actors are entitled to absolutely nothing, albeit we may extend certain dispensation as a matter of discretion.
Nor is judicial mischief limited to the Supremes: Last month a Carter appointee ruled that the NSA Terrorist Surveillance Program (TSP) violates the federal Constitution's separation of powers, the First and Fourth Amendments, the Foreign Intelligence Surveillance Act (FISA) and the Administrative Procedure Act (APA).
Diggs Taylor, a federal jurist in Michigan, gave short shrift to the Administration's argument
that the TSP falls within the President's "inherent" power re
national security—that power deemed structurally necessary in the discharge of
the Executive function. Her opinion is littered with numerous
errors of law and fact. The judge should have punted on the case by
ruling it not "ripe" for adjudication, as the TSP is the subject of
negotiations between the Administration and Congress, with the objective of
modifying the program. Alternatively, the judge could have ruled that the
ACLU lawyer plaintiffs lack "standing": legalese for suffering injury
sufficient to entitle a plaintiff to file a lawsuit. Instead, she found
that the TSP had a "chilling effect" on the lawyers and their
terror-suspect clients. But it is
precisely those who are guilty who
are most likely to feel the chill. Yet another judicial imbecile, one Amy St. Eve in Chicago, has ruled that Hamas is a political party that engages in legitimate political and social service activities, thus aiding defendants in a trial in whcih they stand acccused of supporting terrorism.
Bottom Line. Decisions that could substantially affect our chances of winning the war are now in hostage to the intellectual and emotional sensibilities of five unelected judicial mandarins-for-life.
Begin with this: Would the Mideast be more stable today, and US progress against al-Qa'ida greater, had Bush, Blair & Howard (Australia's John) left Saddam in power? Critics of Iraqi Freedom say "yes": Saddam, they assert, could have been contained. They are wrong. After Hans Blix had finished inspection and found nothing, Saddam would have slipped the sanctions regime entirely. He surely would have reconstituted his WMD programs; he could have restarted production of anthrax within four weeks. Keep in mind, too, that we still do not know which government developed the anthrax let loose in the nation's capital in late September 2001. The most likely suspect is Iraq, said a top bio-weapons inspector. (The FBI now says that the antrax attack was less sophisticated than originally thought, and thus a domestic terrorist is the most likely culprit.) Needless to say, Saddam would also have continued to kill his own citizens, send $25,000 payments to families of Palestinian suicide bombers. Freed from sanctions with no prospect of their resumption, Saddam would have been free to expand his support for terrorism. Yet post-Saddam Iraq remains a country in turmoil, with stable democratic government elusive. Put simply, Americais not where it expected to be in Iraq today, and disaster may still come to pass.
Consider the Mideast three years after Saddam’s fall: (1) a tottering Iraqi government whose legislature is infested with terrorist parties, a Lebanese elected government held hostage by one of the world's worst terrorist groups—one beholden to two terror-state puppet masters; (2) an explicitly terrorist Palestinian government elected; (3) land for rockets in Gaza. In all, not a pretty picture for President Bush's 2002 democracy initiative (well defended here by a White House official). Natan Sharansky's quip that he would prefer an unfriendly democracy to a friendly dictatorship is being sorely tested. What went wrong?
Four failures spoiled the party. (1) we should have specified liberal democracy as a goal, and been willing to tilt the scale towards the good guys, as the CIA did in 1947 in Italy. (2) Terrorist parties were not made to disarm as a condition of participation in the legitimating process of electoral politics--bullets or ballots, but not both, should be the rule. (3) The proportional representation by national party list system chosen in Iraq was catastrophic, enhancing the power of illiberal minority parties. (4) Most dispiriting of all, the Arab world may prove to be the dismal exception to the universalist proposition advanced by Jefferson; Arab societies may be too sick to take the medicine of self-rule for the foreseeable future, and one of the sickest may well be Iraq.
The President's vision had plausible grounding: democracy had spread among may countries historically undemocratic: in Latin America, Asia, Russia, and even a few spots in Africa. About one-third of the Islamic world's 1.2 billion people live in societies featuring some form of democracy, including Indonesia, the world's most populous Muslim country, a minority in India larger than all Muslim country populations save for that in Indonesia, and Kemalist Turkey. On September 11, 2001 more than one million Iranians turned out to protest Iran's Islamofascist regime's misrule. So the assumption was made that Arab countries could be next in line. And 9/11 had shown that the order of tyrannies in the Mideast produced terror funded by petrodollar surpluses. Democracy promoters believed that even if Islamists triumphed in fair elections they would face a public that would insist that with the revolution over it was time to take out the trash. Yet this theory, courtesy of Hamas, is now toast.
Perhaps this time the particularists got it right. Arabs, whose schools, press and airwaves are saturated with Nazi-style anti-Jewish lies and caricatures, may not be ready for democratic prime time yet. And Arab societies are still founded on clan loyalty. Tribal societies are "low-trust societies," whereas, as Francis Fukuyama pointed out in his 1995 masterpiece, Trust, liberal democracy and capitalism require "high-trust" societies, where loyalty is not tribal but rather attaches to constitutional and legal norms of conduct. Why would Sunni accept a constitutional guarantee from Shi'a and Kurds that the Sunni had so cruelly oppressed for decades? Or trust a United States that delivered them into the hands of their victims? Perhaps Ambassador Zalmay Khalilzad could get leaders to extend some measure of trust, but it is at the street level where democracy's future in Iraq will be decided, plus the influence of thug-cleric Moqtada al-Sadr, whose Shi’a “Mahdi Army” (perhaps 20,000 strong) is allied with Iran.
Perhaps most indicative of Iraq’s unsuitability is a poll showing that Iraqis are, as David Brooks puts it, “the most xenophobic, sexist and reactionary society on Earth.” Among findings from a poll of 2,300 Iraqis taken by the World Values Survey of Iraqis: (1) 90 percent reject foreigners as neighbors, versus 9 percent of Americans and 16 percent the international median—the highest in the world; (2) 60 percent reject Jordanians, Kuwaitis and Iranians—the three groups they dislike the least; (3) 93 percent rate men better leaders than women, also highest in the world; (4) they are more religious and more ethnocentric than any other society. The urbane Iraqi exiles who pleaded in the West for help in liberating their native country from Saddam were startlingly unrepresentative of their countrymen. Ironically, the “neos” that championed rapid launch of democracy in Iraq were guilty (myself included, to be fair) of having too high a regards for the ability and/or inclination of Iraqis to transition to democracy.
It may be that the predicate for liberal democracy in the Mideast is precisely what the late Golda Meir said about the predicate for Arab-Israeli peace: It will come if and when the Arabs decide that they love their children more than they hate the Jews. Judging by the Palestinian mother who campaigned for Hamas in early 2006 by noting that 3 of her 6 sons had blown themselves up to kill Israelis, and that she hoped her remaining progeny would follow suit, the Arabs are nowhere close to the standard laid down by Golda a generation ago. And we may be more than one generation away, yet. NRO's Rich Lowry encapsulates this, opining that Hezbollah may have a better understanding of the Mideast human heart than does the Administration. Raw tribal passions could well trump desire for freedom. Ralph Peters, long a vocal supporter of Arab democracy, now wonders if Araby is the exception to the global yearning for democratic rule. Iraqis voted three times, and each time elected "ward bosses, not national leaders," along "confessional or ethnic lines." Peters puts it bluntly, stating: "Above all, societies and cultures that refuse to accept responsibility for their own failures can't build democracies.” Further: "A culture of blame prevents moral, social and political progress. This is a self-help universe. The nonsensical Arab insistence that all Arab problems are the fault of America and Israel (or the Crusades) ignores the fact that Arab civilization has been in decline for 700 years - and has been in utter disarray for the last 200.” More: “No society that oppresses women, denies advancement on merit even to men, indulges in fantastic hypocrisy, wallows in corruption, undervalues secular learning, reduces its god to a nasty disciplinarian and comforts itself with conspiracy theories will ever compete with us. Finally, he administers the coup de grace:
"The question has been asked before: Despite the massive influx of petrodollars over a half-century, where are the great Arab universities, the research institutes, the cutting-edge industries, the efficient, humane governments, the enlightened societies? The Arab world has behaved as irresponsibly as a drunk who won the lottery, squandering vast wealth and creating nothing beyond a few urban theme parks.”
Peters also wrote recently that the strongest force in global cultural affairs is tribalism rather than global integration. He warns that Iraqis Arab democracy's last chance. All this brings to mind comedian Dennis Miller's crack that trying to stabilize America's Arab allies is like trying to stabilize a group of supermodels who just had their drugs taken away.
American policymakers who supported the democracy push in the Mideast come from a country with a unique form of it. In a recent essay ( "American Exceptionalism") policy guru James Q. Wilson notes differences between American and other views re democracy. Compared to their European and Asian counterparts, Americans are far more positive about their nationality, believe far more passionately in individualism and economic competition, and are more hospitable to the idea of exporting their form of government to other places. This may well explain, at least in part, why President Bush decided to promote democracy in the Mideast. Wilsonis optimistic about the long term future of promoting democracy overseas, noting that while Americahad a unique political culture and extraordinarily wise founders, democracy has succeeded in other countries that lacked same, in Europe and even Asia.
President Bush, for his part, defends his Mideast democracy promotion, citing progress in Jordan, Qatar, Morocco and the Gulf sheikdoms--Kuwait now allows women to vote. But events to date suggest that the road to Arab and Muslim Reformations will indeed be long.
Bottom Line. The battlefield wars are also "values" wars to the extent that our overarching goal is to transform those lands into democracies. It's time for a pause in promoting democracy, at least until we develop the skills to nurture liberal democratic regimes. On the fair evidence of it, this lies outside the boundaries of our present managerial competence.
Within the West
Our political discourse characterizes disagreement with Administration policy as dissent as to how we conduct the war, which implies broad agreement that the war be fought, but disagreement as to the means. But this underestimates the force of the objections to how America is conducting the war. There is, in truth, a war within the US as to how we should fight, based upon deep split over fundamental societal values. Credit each side with patriotic motivation: Liberals (plus some libertarians on the right) who exalt civil liberties above catching terrorists think the country will lose its essence if it sullies its soul; conservatives who are willing to abridge civil liberties in order to pre-empt terrorist acts believe that the country should save its tail first, then worry about saving souls. Just how much dispensation should we give to adversaries who don't even engage in the pretense of compliance with basic norms of humanity? Media reports of abuse directed at guards by detainees are rare, but stomach-turning--if voters knew they would be less sympathetic to detainee treatment complaints. In the UK, Tony Blair's stern post-7/7 proposals have been rejected, either by Parliament or by the Law Lords. But the epicenter of the values war is within the United States.
Three groups of elites have united in their own war inside the West--not against terror, Islamist or otherwise; rather, they are making war against America's ability to make war against the terrorists. Our resisting elites—liberal and libertarian—are: (1) mainstream media (MSM); (2) most lawyers and intellectuals who are co-advocates of world government, or, short of that, of diminishing American power; (3) liberal politicians, who cheer on the media and take their cues from the lawyers. Again, the resistance of the elites can be motivated by patriotism; patriotism is a state of mind, not a synonym for sound judgment on any side of an argument.
The "ace in the hole" held by elites is their mantra "our values," usually invoked to prevent us doing something that would prove effective in fighting our adversaries. Manhattan Institute scholar Heather Mac Donald notes that the campaign against American treatment of terrorist detainees began even as the first prisoners were brought to Guantanamo in January 2002; a Daily Mail published a January 20, 2002 photo of a hooded captive in orange jumpsuit and shackles, captioned “torture.” This in fact standard treatment for dangerous prisoners—those at Gitmo would, given ten seconds in a room with the idiot who captioned the picture, kill him with relish.
"Our values" require us, it is alleged, to extend Geneva Convention protection to al-Qa'ida detainees, which would limit us in practice to asking them four questions: name rank serial number, and, yes, their date of birth. The monster airliner plot broken up this August was made possible by a tip gleaned from an al-Qa'ida captive apprehended weeks earlier near the Pakistani-Afghani border. Under Geneva rules, unless the captive volunteered the information captors could not have learned about it; even offering inducements to captives to get them to talk violates the conventions. Any inducement whatsoever--a chocolate bar, a night with Miss Universe, half of Bill Gates's fortune--is unlawful under Geneva. No wonder Attorney-General Alberto Gonzales once called Geneva's rules (as to terrorists) "quaint." Care to poll Americans and ask if bribing captives to talk, revealing the plot, should not be done due to desire to comply with Geneva?
One reason given for us to observe Geneva protocols is that terrorists will then have an incentive to extend reciprocal courtesy. The flaw is that terrorists—and also totalitarian states—like North Vietnam a generation ago—don’t care how their minions are treated upon capture. Indeed, they are perfectly pleased to reap propaganda benefits from alleging mistreatment. Had Senator McCain’s view prevailed as to detainee treatment, the result would have been, to borrow a famous expression of the Vietnam War, destroying Geneva to save it.
The edifice of Geneva stands upon a foundation of reciprocal compliance. From its 1949 inception there always has been the problem of dealing with state or non-state actors would refuse to comply. From such we will never gain reciprocity. We can expect reciprocity from a Geneva-compliant state, but the McCain Amendment would have removed the incentive for such states to comply. Imposing a unilateral mandate of Geneva compliance upon America removes the incentive for Geneva-compliant adversaries to follow the rules, as their soldiers will get protection even absent Geneva rules. Thus, if France, in a war with the US, decided to ignore Geneva and interrogate a senior US official outside Geneva, its soldiers would still be protected un the McCain and Supreme Court views of Geneva.
Efforts by the Administration to gather and share data on terror suspects have met with ferocious opposition, most notably (a) the National Security Agency’s Terrorist Surveillance Program (TSP)--wrongly labeled in the press as a "domestic spying" program, (b) the SWIFT financial bank monitoring program, and (c) data mining efforts like the Pentagon’s junked Total Information Awareness (TIA), although machine reading of data already known to network companies violates no one's personal privacy in either law or common sense. There are bright spots, too. Since 9/11 intelligence and law enforcement agencies have vastly increased their sharing of data on terrorist suspects and (not surprisingly) are getting better results. According to the Secretary-General of Interpol (created in 1923, it has 184 member countries) in the past five years the number of suspected terrorists it monitors has increased five-fold (from 2,000 to 10,000). The number of countries sharing counter-terror information through Interpol has increased from less than 30 to more than 100. Since 9/11 the annual number of suspects targeted for arrest has more than doubled (to 16,000 in 2005) and annual arrests have more than tripled (3,000 in 2005). The New York City Police Department assigns a detective on every Interpol terrorist deployment (as befits the world's most inviting target). Since 9/11 Interpol has created a global database of Stolen and Lost Travel Documents (SLTD), with 12 million passports now entered; but it is little used, despite a GAO report finding that the US has failed to address this security gap.
Our laws also currently prohibit all targeted assassinations, which as AEI's Michael Rubin recently explained leads us into wars that cause loss of innocent life; terrorists generally prefer to send others to their death, so Rubin is right. Executive Order 11905, issued by President Gerald Ford, covers foreign intelligence activities, and includes one section barring political assassination: Section 59(g), effective March 1, 1976, reads: "(g) Prohibition of Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination." Executive Order 12333, adopted December 4, 1981 under President Reagan, adds in section 2.11 any "person...acting on behalf of the United States Government."
The summer story run by the New York Times on the financial tracking of terrorists, providing educational detail to our adversaries and embarrassing allies, was the penultimate salvo. The Supreme Court's legerdemain in the Guantanamo litigation sealed the case. What animates these elites? Primarily three things have led American elites to shrink from full engagement in the war against genocidal, millenarian Islamofascism: (1) As children of Watergate, they fear their own government--doubly so given a Republican Administration—more than they fear the enemy. (2) Politically and socially liberal, they wish to win pretty; if ugly is the only way to win they probably would choose, as did the French upon leaving Algeria in 1962, to lose pretty. (France's decision, after eight years of a dirty war, to abandon a marginal colonial outpost was understandable; the anti-war impulse is harder to justify as to a war, like ours, for survival.) (3) Being morally relativist, they are susceptible to the strategic vice of mirror-imaging, and to the seductive belief that all differences are in the end splittable, and thus negotiable. They thus prefer a negotiated settlement with Islamism to its eradication (as they did with the former Soviet Union).
A “values” fixation also hampers Israel. Were Israel so inclined it could end forever the problem of rockets coming from Palestinian territory. How? Play by what New York Times columnist Thomas Friedman calls "Hama Rules," after the 1982 episode in which Syrian strongman Hafez al-Assad quelled a Muslim Brotherhood uprising by sending in tanks and bulldozers, killing 10,000 to 20,000 in two days. Israel could easily squash several Palestinian villages in a few minutes. Kill 20,000, and warn that future rocket attacks will cost another 20,000, and so on. The Palestinians being thick, it might take a few days to sink in, but sink in it would. Palestinian rocketry would cease. But Israel's own public would gag on this, as would Americans. The "international community," which ignored 800,000 Rwandans being hacked to death in 90 days, would let out a collective primal scream if so much as 800 Palestinians were killed by Israelis (but would not notice if Arabs did it, as did Jordan's King Hussein in Black September 1970). The latest example of this is Israel giving two--even, at times, three--days warning to Lebanese civilians to flee areas to be targeted by Israel. Just what does Israel think Hezbollah does after this? Move into the area to be killed? Or bring hostages in to be killed, while Hezbollah fighters escape at the last minute?
Three norms of the international law of war govern the Israeli-Hezbollah conflict: (1) A state must not only refrain from launching aggressive war against another state, it must prevent others from doing so. (2) The attacked country may respond with force "proportionate" to achieve its lawful objective—a proportion that is measured not by the scale of force chosen by the attacker, but by the scale of force needed to eliminate the threat; the latter may be vastly greater than the first). (3) Targeting civilians and using them as shields to protect personnel or other assets are both black-letter war crimes.
Hezbollah, needless to say, fights by committing war crimes 24/7--targeting civilians and using them as shields. Yet the world community blames Israel for striking, as it has every legal right to do, terrorists secreted deliberately among innocents. Partly this is due to direct intimidation, such as kidnappings of journalists from news organizations that cover Mideast terrorist groups truthfully. Partly this is the latest round of Israel's being chastised for being too effective at protecting itself. But it also reflects a deeper antagonism toward vigorous prosecution of a war that cannot be won quickly and neatly.
Media coverage of the Lebanon conflict was shocking, with numerous examples of reporting either stage-managed by Hezbollah itself, censored by Hezbollah or self-censored so as to avoid reprisal by Hezbollah, which has photos of the passport page of any journalist working inside Lebanon in areas controlled by Hezbollah. The capper was when Reuters, egregiously biased against Israel, pulled 920 digitally doctored photos exaggerating damage Israel has done in Lebanon posted by an Arab freelancer. Here are more details—four types of photo fraud by Hezbollah about the photo fraud. And here is an example of Hezbollah setting up a staged photo for Reuters. Former Bush speechwriter David Frum catalogues shocking media assistance given Hezbollah: (1) the famous photo of the Qana building where Israel was blamed for killing 60 civilians (later reduced to 28) turns out to have been staged, with bodies being moved in and out--and with knowledge of journalists who published the photos anyway, without informing viewers of the staging; (2) another widely-circulated photo purportedly showing two ambulances struck by Israeli missiles was also faked—the vehicles, which Hezbollah did not permit journalists to examine, showed no sign of missile impact; (3) photos of Hezbollah purportedly passing out $100 bills to victims of Israeli bombing were faked--the bills did not have a telltale identifying strip on them. Mass media also publicize charges by human rights groups, which often are baseless (remember the "Gulag" charges about Gitmo?), and at times, as when Human Rights Watch denies that Hezbollah uses civilians as shields, aptly termed outright lies. A Human Rights Watch report on the Israel-Hezbollah war, while finding no instances of Hezbollah deliberately hiding amongst civilians, did find numerous instances of Israel deliberately targeting civilians. This is akin to, in World War II, a human rights group accusing the US of war crimes while exonerating the Waffen SS.
The media aired Kofi Annan's blood libel accusing Israel of deliberately targeting an UNIFIL post in a strike that killed four UN troops; Annan seems to have received little in the way of skeptical questioning for his mendacity. Especially repulsive was a cartoon equating Tyre 2006 with Warsaw 1943 carried in, of all places, the normally quite stalwart Daily Telegraph. The Bush Administration is often criticized for poor communications, and rightfully so; Israel did poorly during the summer war. But how can any Western nation fight terrorism effectively with media coverage as atrocious as this? And the media sophistication of Islamofascists is a sea-change from earlier times: Bernard Goldberg compares the 1979 Mike Wallace interview with the Ayatollah Khomeini with Wallace's 2006 interview with Iran's President Ahmadinejad. Khomeini lived literally in the 7th century; Iran's current President knows the Democratic Party's line about health-care uninsured and enjoys "quality time" with his family. As Goldberg points out, Hitler said similar things to journalists.
Modern media cost the US any chance to prevail in Vietnam, portraying the war as unwinnable and the famous 1968 Tet offensive as a North Vietnamese victory when in fact it was a shattering defeat. At the end of the Gulf War media hyping the "Highway of Death" increased pressure on the Bush Administration to end the ground war days short of total victory. In Fallujah I (Spring 2004) media coverage of damage induced the Iraqi government to get the White House to call off a Marine offensive, despite the commander's estimate of 48 to 72 hours needed for success. In Fallujah II (Fall 2004) the shock value of four US contractors hanging from a bridge spurred the White House into ordering an immediate offensive, despite the ground commander's assurance that quietly, within 30 days, his troops could find and kill those responsible. The result was major collateral damage, greater than that in the first battle, yet due to less media pressure the Marines were permitted to finish the job this time.
Western nations continue to disarm themselves. A missile-defense laser that shot down Katushya rockets at White Sands, New Mexico—In 1998, eight years ago!--was never deployed. The Bush Administration believes, apparently, that deploying missile-defense lasers would be too upsetting to Russia and China, who object because their own arsenals would thus be neutralized. Airport security targets soccer moms, grandpa and young Muslims equally, instead of profiling by behavior and pulling only selected passengers out of line; airport employees—baggage handlers, in particular—were not selected for special screening either. That we avoided more hijackings or bombings for five years is little short of a miracle, and may well have occurred despite TSA, not due to TSA's efforts. In the UK every measure proposed by Tony Blair after 7/7 last year was blocked either by Parliament or the courts.
In effect, the divide between the Administration's critics and President Bush is that between "9/10 people" and "9/12 people": The 9/10 folks regard the 9/11 attacks as merely a stepped-up version of earlier attacks, calling for a stronger response, but one rooted in traditional diplomacy with allies and at the UN, plus enhanced deterrence supplemented by specific military strikes at designated terrorist groups linked to a given attack. The 9/12 folks see 9/11 as a transforming event, calling for a complete re-casting as to use of force (broader, earlier pre-emption) and diplomacy (coalitions of the willing, victory rather than negotiated settlement). 9/10 folks view terrorists as vicious criminals, but not an elemental threat to the West; they fear that over-reaction will harm us, at home and abroad. 9/12 folks see an existential threat to the West, with victory the only option; they fear under-reaction will doom us to an eventual WMD strike. Such a strike could potentially cripple America economically and undermine our resolve.
Bottom Line: The anti-war crowd, after a slow start, is in full gear now, and arguably leading in its struggle with those who wish to show terrorists no quarter. We are in an alley fight, and the Marquis of Queensbury set wants a boxing ring.
After 9/11, all 535 members of Congress stood on the Capitol steps, vocally and physically united in their determination to fight terror. Five years later it is possible to see the outlines of how the war has unfolded. We tend to think in terms of the Afghanistan and Iraq campaigns; those who recognize (rightly) that Israel's struggle is the same as ours can add the Lebanon campaign. And surely these campaigns are of vast importance to the progress of the war. But paramount importance goes to two other wars underway, both of which are internal: (1) the struggle within Islam; (2) the struggle within the West. Worse: In both these pivotal contests, the wrong side is winning. Today’s post examines the first internal values war, within Islam. Tomorrow’s examines the internal values war in the West.
Within Islam: Silence From the Muslim & Arab "Silent Majorities"
This struggle has been widely noted. President Bush keeps telling us that Islam is a "religion of peace." Yet moderate voices are conspicuous mostly by their absence, and what condemnation of extremism comes from Islamic sources is frequently tempered by hedging (e.g., pointing to the Israeli-Palestinian conflict, for example). Our attempt to engage the wider Islamic world in a dialogue is going poorly. Most Islamic news organizations broadcast propaganda that would make Joseph Goebbels proud; the sermons in the mosques and inculcation in the schools are no better. Karen Hughes, the State Department out-reach point-person, leads with chin first, and she is not alone. No one in a Western government seems to have the nerve to tell our Islamic interlocutors that after a thousand years Islam should (a) get over the Crusades, (b) acknowledge that the Crusades took place within a millennium (632 - 1683) of jihad by the forces of Islam, and that (c) the Crusades were prompted by the Cairene Fatimids barring Christian pilgrims from the Holy Land. And if a prominent Western figure said these things, how long would it take before a fatwa were issued, calling for his (her) assassination? Sadly typical of how Western leaders tread gingerly is LA's mayor backpedaling under pressure for attending a pro-Israel rally protesting Hezbollah's aggression.
radicals confect a cartoon controversy, adding three patently offensive
cartoons to twelve innocuous ones published in a Danish newspaper, and the West
temporizes, sacrificing freedom of speech to Muslim hyper-sensitivity--despite
Nazi-style caricature of Jews and the West being a commonplace in Muslim
lands. No one in the West would make similar genuflection to Christian
sensitivity (remember Piss Christ?). In Tehran the mullahs open a
Holocaust cartoon exhibit and foster
anti-Semitism in a country that has the second largest Jewish community in
the Mideast (after Israel). Palestinians get to trash a Christian church,
but let any non-Muslim, anywhere, trash a mosque.... The Pope makes a speech setting criteria for
an interfaith dialogue with the Islamic world that contains a carefully
circumscribed allusion to a 14th century debate between Eastern
Christianity and Islam. Riots are
started around the planet by the usual suspects, with at least one nun
murdered. Neither apology nor
clarification matters to Islamists. They
seek to intimidate, and are succeeding. Anne Applebaum proposes
issuance of a joint statement by a wide spectrum of Western groups from the
White House to Greenpeace, endorsing free speech and condemning violence.
Rome has synagogues and mosques but where are the synagogues in Mecca and Medina? In Cairo? In Amman? In Baghdad, whose Jewish community at the end of World War I was the largest minority residing in the city, when the British took three Ottoman vilayets and stitched them together for the benefit of a Hashemite tribal chieftain? No one questions the Palestinians "rights" to enjoy judenrein (Nazi Germany’s “Jew-free” policy) in their territory. Unrelenting hatred of Israel persists in the Mideast. Christians living in Indonesia have been hounded repeatedly by Muslims there, with the government desultory at best in responding.
What about all those moderates in the body politic--the Islamic "silent majority?" With the vote in Islamist regimes, optimists said that they would demand government services and that their demands would force terrorists to stop killing and start building. Hamas comes to power and what follows? Rockets, not trash removal. Land for rockets: Why didn't Israel think of that? Hezbollah gets 18 percent of the seats in Lebanon's parliament after 2005's Cedar Revolution, and what follows? Rockets, not shopping centers. The "moderate" masses? No evidence of them in the Palestinian lands, but perhaps Lebanon does offer some measure of encouragement. NY Times columnist Thomas Friedman reports that the Iraqi Sunni mainstream regards the Shi'a as inferior persons unworthy of equal treatment. In Afghanistan, Hamid Karzai's liberal democracy rules the cities, but Taliban and tribal warlords rule the villages. Indonesian women protesting mistreatment by radical Islam have encountered violent harassment, in a country where attacks that killed Muslims raise anti-terror consciousness; the Indonesian government is using technology supplied by Australia and the US to monitor Islamist Internet chat rooms. Pre-eminent Orientalist Barnard Lewis warns that traditional notions of deterrence cannot reasonably be expected to deter Iran's nuclear project or use of such weapons; rather, only moderates in Islam can defeat such attitudes. One piece of good news, as reported by foreign journalist Arnaud de Borchgrave: a Saudi crackdown on Islamist extremists. The Saudis will still play a double game, but perhaps a more cautious one.
Worst of all: A large number of young, UK-born Muslims in Great Britain, who live far better than most Muslims worldwide, hate the society that shelters them and gives them freedoms their co-religionists can but dream of in Arab lands. They hatched a plot to blow up several thousand over the Atlantic. Hundreds of thousands of British Muslims put Islamic identity before country--even Muslims born in Britain. Islamic group solidarity has taken strong root in England. Consider these numbers from a Mark Steyn column. A recent poll shows that in the UK only 7 percent of Muslims put country before religion, while 81 percent put their religious identity first. Yet a poll taken in Indonesia, the world's most populous Islamic country, show that 39 percent put country first and 36 percent put religion first. British efforts to reach out to young Muslims have not fared well. British Muslims are heavily influenced by Pakistan's Deoband sect (akin to Taliban in Afghanistan). Somewhat more encouraging are poll results showing that suicide bombing is "never justified" according to 83 percent of Muslims in Germany, 70 percent in the UK, 64 percent in France and 60 percent in Spain. But that still leaves lots who think that at least sometimes it is. In the US, while most Muslims are integrated into American life, not all is well. Long Island Republican Peter King is taking flack from Muslim activists for saying the 85 percent of mosques in the US are funded by radicals, that Muslims inside the US do not step forward with information about terrorist acts in the making (even if they do not participate in such acts), and that the US should employ ethnic profiling of Muslims in airports.
America, fortunately, does not face the same problems that Western European and Asian countries do with their Muslim populations. Yet Muslims in New York City, at 600,000 more than seven percent of the city's population, report that since 9/11 they have felt "under suspicion." Recently a Muslim was convicted of planning to blow up the Herald Square subway station (located in Manhattan's West side, near Macy's department store). His plot was detected after police monitoring inside his mosque (there are 140 in NYC); Muslims resent such monitoring. Are the authorities supposed to monitor synagogues? Yet Muslims recognize that their treatment in the US is far better than would be the case in their native lands. They are right.
The 2000 Census paints a vivid portrait of Arabs and Muslims in America. Only 24 percent of America's 1.2 million people of Arab descent are Muslim; Arab-Americans’ average household income, at $52,000, exceeds the national median ($44,389 in 2004), and their intermarriage rate is 75 percent. Data on Muslims is murkier, but the estimates show about 1.2 million Muslims, of which 1/3 hail from Asia, 26 percent from the Mideast and 20 percent are American blacks. At 21 percent their intermarriage rate almost precisely mirrors the national average of 22 percent. Their 59 percent undergraduate degree share is America's highest, with 82 percent registered to vote; 3/4 of Muslim households earn over $25,000 and 1/3 over $75,000, making them the richest Muslim community on the planet. In short, there are highly successful communities that are at least substantially woven into the fabric of American life.
Bottom Line: The bad guys are way ahead. Lies traveling at the speed of light have left truth in the starting blocks. The confrontation over the Pope’s Sept. 12 Regensburg speech exemplifies the task: Uphold Western (and Christian) traditions of free speech or else allow imposition by illiberal response within the Muslim world. Muslim moderates to date have not given enough help. We need it.
So where are we after five years fighting Islamist ideology and terror in what General John Abizaid calls “The Long War?” Major victories by America and its coalition allies won Phase I—Enduring Freedom and Iraqi Freedom—but we are losing, and are likely to lose, Phase II, for failure to del with Iran; Phase III will likely see a nuclear-armed Iran, and thus pose challenges to the West far graver than those to date, with a far more uncertain outcome. Polls taken in October 2001 and June 2006 by a Gallup, CNN and USA Today triumvirate reveal that an identical 44 percent of respondents see the war as a tie, while those seeing our side ahead declined from 42 to 35 percent, and those thinking the terrorists are winning increased from 11 to 18 percent (3 percent in each poll did not opine). A July 2006 poll taken by Gallup and USA Today tallies 76 percent of Americans believing the world today to be more dangerous than at other times, 20 percent thinking the danger level about the same and 4 percent thinking it less dangerous. The polls do not enumerate the reasons, but presumably the prime favorable factor is the absence of any major terror strikes on US soil and the prime unfavorable factor is the mess in Iraq..
The best one-article take on where we stand comes from Robert Kaplan’s Wall Street Journal piece, Hostage to Fortune. Kaplan sees President Bush as the most significant transformational figure in the Mideast since Napoleon (which may displease Winston Churchill’s heirs). He judges Bush's ideas sound but their execution deeply flawed. Put simply, in Iraq Bush planned for only the best postwar outcome--creation of a liberal democracy, an idea sold by secular moderate Shi'a Ahmad Chalabi. But he got instead the worst: a Shi'a Mesopotamia, and a Shi'a groundswell led by Iran. Iran, however, also blundered, putting a "hothead" (Ahmadinejad) into the Presidency instead of a cool cucumber like former President Hashemi Rafsanjani, who would have accomplished Iran's nuclear ambition without drawing the attention that Iran has drawn due to the martial, millenarian and at times Nazi-like rhetoric of its President.
Placing matters in perspective, Kaplan notes that in the 1990s the toll was
fearful: in the former Yugoslavia, 200,000 dead and one million refugees; in
the breakaway republics of the Soviet Union, 150,000 dead and 1.5 million
refugees; in Russia, 100,000 additional murders versus the prior decade.
The end of the Cold War was no garden party. Add in 500,000 deaths in Iraq under Saddam’s Stalinist stewardship.
But now, after Saddam, Kaplan sees a Mideast where governments are chaotic, not democratic: "So instead of Saddam bestriding a vast and frenzied Sunni mob, we will see a string of messy, Mexico-style scenarios...but without Mexico's level of institutionalization." The US may, Kaplan writes, have to get closer to Egypt, Jordan and the Saudis to check Iran. Expect no help from Europe, where heads are rooted firmly in the sand re Iran (just as the US got token help at best from Europe re the Balkan agonistes). IKaplan concludes: "The carnage caused by Mr. Bush's shattering of the post-Ottoman state system is minor compared to that in the former Soviet Union and its shadow zones after the Berlin Wall fell." But Bush's lack of prudence imperils his enterprise. Left unsaid by Kaplan is that media coverage of the butchery in the 1990s had far less impact globally, because America was far less involved. The world's hyperpower is in everyone's cross-hairs, including those of most of its allies.
Bottom Line. We may not be losing, but we are not winning
either, and the trend line has turned against us in potentially devastating
ways. Worse, our ability to affect
outcomes at the margin has been drastically reduced by the mess in Iraq. The enhanced credibility that successful
Afghanistan (2001) and Iraq (2003) bought has been squandered in the failure to stabilize Iraq, and in the ascension of elected Islamist parties. America can still act decisively, but at higher political cost and with less margin for error. The virulence of public reaction in countries allied with us makes support from traditional allies far less likely in major future war ventures.
What Kind of War?
Clash of Civilizations or Cultures? Hardly. Our adversaries aren't civilized. The clash of our times is one between imperfect civilization and perfect barbarism. Nor its what the terrorists represent truly a culture, as cultures celebrate life one form or another and positive development; rather it is a bizarre death cult in which acolytes are indoctrinated in mosques and madrassas (Islamic religious schools). To differentiate between civilizational and barbarian wars, think of the fall of the Western (476 AD) and Eastern (1453 AD) Roman Empires. The earlier conquest was by barbarians--the Goths and Vandals; the later conquest was by a successor civilization, the Ottomans. What separates a civilization from the uncivilized is a common predicate: Civilizations, in some form or another, celebrate human life's possibilities and achievements; Islam’s great empires left us treasures, many of which we can see even today. The jihadi do not aspire to produce anything like what Islamic civilizations produced; they seek only to destroy. Not even Attila sent children and pregnant women to do his killing, nor did he hide behind them and use them as a shield. Hezbollah has created a 2,000-strong child militia to groom new martyrs in the 10-to-15-year-old age group. There will be no Topkapi Palace if the jihadi win.
Yet we are not, strictly speaking, at war with the entire 1.2 billion living in Islamic communities or Islam itself. True, Islam has not undergone a Reformation as did Western religions, and its relationship with modernity is an uneasy one. Yet Islamic communities live in peace in the US, in India, and form the core of democratic societies in Turkey and Indonesia. The latter are fragile, but real. And yes, there is a serious problem of unassimilated Islamic minority communities in Europe--most notably in Britain. We must seek to strengthen the civilized forces within Islam while waging war on the remainder. David Brooks writes that the lesson of the past five years is that globalization cannot erode barriers between belief systems, because peoples cherish consecration--the power to decide what is right and wrong--as much as they may desire liberation, if not more. Thus tribal "honor" cultures persist--what Hegel called "the struggle for recognition" (a concept brilliantly examined in Francis Fukuyama's great 1992 book, The End of History and the Last Man).
In his superb 2006 book, Honor: A History, critic James Bowman notes that Vice-President Cheney said after the failure to find WMD that it was incomprehensible to him (as it was for others—myself included) that Saddam would not ‘fess up, pass the inspection, and resume his programs after the embargo and sanctions were lifted. We did not count on atavistic notions of honor that persist in Arab society. Bowman explains: “Morality is nuanced and subtle; there are shades of right and wrong, innocence and guilt. Honor is stark and unforgiving; either you fight or you run; either you are a hero or a coward….” Westerners did not see this coming, because since the cataclysm of World War I, launched in the name of national honor, it has become unacceptable in the West to launch a war solely to preserve national honor.
So what name best encapsulates our adversaries and what they represent: surely not the Global War on Terror. We aren't fighting equally all kinds of terror or terrorists, generically, as (a) terror is a tactic and (b) terrorists include Basques, who do not aim to blow up New York City. But we have used the "Global War on Terror'" locution too long to drop it entirely. We aren't--at least, not yet--fighting all of Islam, even if there seem to be fewer moderates in the Islamic umma than we hoped to find. Fascism is an appropriate part of the label, because: (a) fascism is a form of totalitarianism (albeit Bernard Lewis informs us that Islam is not inherently totalitarian, a fact confirmed by the existence of non-totalitarian Islamic regimes); and (b) fascism, unlike its evil 20th century counterpart, Communism, openly celebrates and glorifies violence, as the jihadi manifestly do. We are at war, not fighting crime, albeit terrorist groups like Hezbollah engage in myriad garden-variety criminal operations to support their terrorist enterprise.
Thus the best term for what we are fighting is Islamofascism (here is a brilliant analysis by philosopher Roger Scruton); the term was coined in 1978 by a French Marxist (here is a further exploration of the term's value). A detailed exposition of Islamofascism has been presented by scholar Stephen Schwartz. Author Shelby Steele, for his part, attributes our seeming inability to even name the enemy to inexhaustible white guilt. We cannot seem as a society to accept fully that collective guilt was rejected at Nuremburg. Victor Davis Hanson notes that Mein Kampf, a perennial best-seller in the Mideast, is sold under the Arabic title Jihadi.
So where is the Hezbollah Philharmonic? Rehearsing Nasrallah’s Second Rocket Overture?
Bottom Line. Our war is not the famed cultural "clash of civilizations"; rather, it is a war between our imperfect culture of life and their perfect death cult. Put another way, the war is one between imperfect civilization and perfect barbarism.