Wednesday, December 07, 2005

Taking the bait

This post was going to be about some other things, but given the length, detail, and..shall we say divisiveness of Vargas' comment, I feel it necessary to reply. I'll take issue with a couple things, but first, I'll fess up to being a bit dogmatic. What can I say.

Generally, Vargas' arguments boil down to a few points:

1. Overriding Ally concerns and sovereignty is justified to fight terrorism.
2. "Combatants" don't have protection under the Geneva Convention, so they don't have a right to due process (aka - only state violence is legitimate).
3. Propose solutions, criticism is boring.

The Role of our Allies

The Italy issue is not solely one of jurisdiction like some crass Law & Order episode as is asserted. It's not about "collars" it's about a huge invasion of Italian sovereignty which not only demonstrates the utter hypocrisy of "American Exceptionalism" but also reveals the lack of cooperation combating terrorism. Cooperation is built on trust, sharing, and transparency, something that the Bush administration has been requesting since 9/11 (and also happens to be featured in Bush's National Security Strategy) and pretty much everyone agrees is necessary to "defeat the terrorists". When the CIA goes around absconding with suspects in our allies' lands without informing them (or seeking permission) and then planting fake stories about those suspects fleeing to the Balkans, well, that bodes poorly for the whole "cooperating to fight terrorists" strategy and is likely to frustrate future efforts to prevent terrorism.

Not to mention the fact that we'd flip out if the Italians did that to us. Or that the clear implication is either that Bush is just flat out lying when he says we need to work with our allies to fight terrorism or he doesn't have a clue as to what his underlings are actually doing. Either way, this event speaks to the gross mismanagement of this "war".
I'll repeat my claim that if France or the UK had a secret prison on an air base that they leased from the US in Iowa where they were conducting extralegal interrogations and incarcerations, middle America would flip it's lid. Denying this invalidates affiliation to reason.
The Legal Case: Why Combatants always have legal rights

First and foremost, it's not about incarcerating criminals. As long as detainees have due process and fundamental human rights ensured, I'm not going to quibble. Legal systems are obviously fraught with errors and problems, but that's not an issue in this dispute. The issue is, should "combatants" receive basic legal rights as respected by the Geneva Convention, the UN Declaration on Human Rights, the European Convention on Human Rights, etc. I think they should and so do all the treaties that we signed as well as world opinion. The whole point of due process is that people are innocent until proven guilty. That doesn't mean we let suspects walk around and blow sh*t up all the time, but that does mean we have to have minimally sufficient evidence to detain, prosecute, and incarcerate suspects. Remember, there has yet to be a single conviction of any of these alleged terrorists. Have you even considered that perhaps the reason no lawyers have been provided and no prosecutions have been conducted is because there isn't a shred of evidence to detain, not to mention convict the "combatants" around the world?

Not only that, detaining people without due process, regardless of "combatant" status is illegal under the European Convention on Human Rights (see article 5) which all members of Europe have signed (including Poland and Romania and 44 other states). In addition, all people that are in Europe (visitors, residents, etc) receive protection under this treaty and the right to due process (liberty) is an unconditional right. It is simply illegal to hold people without trying them, granting them access to lawyers, etc. in Europe and the US flaunts that at will.

Even beyond that, however, there are fundamental standards of what represents human decency and holding people without every trying them or facilitating in torture or torturous situations is something that we should not brush away because these are "bad" people. In fact, President Bush has staked his legacy on the claim that he is standing up for what is morally right, so it's utterly shocking that his morals could be so narrow as to exclude fundamental standards of human decency.

Re: Secret Prisons

I think I've dealt with most of this above but I wanted to address two concerns.

First, the claim that "enemy combatants" who are "not from a legitimate nation or government" don't warrant any rights protections under the Geneva Convention is, sadly, flat wrong. This claim is clever legal fiction from a Bush administration that frequently implies that all international laws flow forth from the Geneva Convention and that which is not included is thus not obligatory. Perhaps a re-reading of the UN Declaration of Human Rights (which every member of the UN has signed and is binding) would be in order for all the budding legal minds that wish to "legalize" fundamental violations of human rights (not to mention the dozens of other treaties that exist that guarantee these rights as well). Not only that, the Geneva Convention is not a "stand alone" document. There's plenty of case law to support the claim that the all detainees, regardless of status, should receive the basic fundamental rights contained in every human rights treaty in existence (life and liberty).

There's also concept called 'customary international law' that states that when a preponderance of nations act consistently in one particular way for a lengthy period of time, that behavior has become a "custom" and is thusly recognized as "international law". So, even if the Bush admin could win the argument that "combatants" don't receive protections under X treaties, they'll still not be able to have legal standing to detain "combatants" without due process.

Second, the claim that "combatants" don't have a right to legal protections lies on a heady premise that a "war on terror" means that the enemy does not originate from a state. This argument is that a strict reading of the Geneva Convention reveals that it is an accord between states during conflict, thus, to those that are "stateless", it does not apply. That logic, while indeed clever, appears to completely ignore several other parts of the Convention that bind the signatory state (US) to its treaty obligations regardless of the membership status of the opposition when dealing with Prisoners of War (see article 3).

It also conveniently ignores the fact that Afghans come from Afghanistan (a UN Member state), Iraqi's from Iraq, etc. In short, everyone has a state of origin and even those that don't still have international legal personality guaranteeing them fundamental rights and protections under international law. I mean, really, didn't we invade Afghanistan because they were a "terrorist nation"? Isn't that the same justification for Iraq?

Finally, there's no basis to separate "terrorists" from the "criminal" sections of those treaties, meaning that those individuals still receive basic protections - i.e. calling it a "war on terror" doesn't mean people lose citizenship and basic human rights any more than the "war on drugs" means that drug dealers lose citizenship and basic human rights.

In sum, the legal arguments are on the side of justice and there's only about 60 years of jurisprudence to back me up on this one, although I'm no lawyer.

Proposing Solutions

Finally, i'll admit to being pretty negative about the whole thing. Frankly, for someone like me, the state of US foreign policy is pretty depressing. But, I'll get off the horse and propose the solution (less eloquently now) that I proposed in my dissertation.

America is the unquestioned leader in the world. We have had and continue to have the opportunity to remake the international community in our image. Instead of isolating ourselves from our allies, breaking treaty commitments, unsigning treaties, and generally acting like a ass, we should be directing our energies toward promoting the values and ideals that we hold dear. We shouldn't torture or deny people their fundamental rights (or be ambiguous about torture) simply because it's the right thing to do, but also because we want others to uphold the same values we believe in. I'm not going to claim that sticking to our commitments and acting consistently will bring around rogue nations like Iran or North Korea, but neither will any of the neo-cons win that violating those commitments will make the world a better place. In short, I'll always be correct that we have a chance of improving the world by actually leading and that bullying and acting the ass always makes the world a more dangerous place.

Realist legend Morgenthau once said (paraphrasing) that "foreign policy should be conducted not on the basis of what we want the world to be, but on how the world really is." The neo-cons are making the same mistakes the Wilsonians made in the 1920's. I'm not a realist, but the mistakes he found in the Idealist tradition, mistakes that directly contributed to the failure of the League of Nations and World War 2 can be seen in the current US foreign policy strategy.

Since the preceding claims are a bit vague, as a start, here's a clear list of things that could be done to improve the situation:
- Fire George Bush and the entire administration
- Start sharing information with our allies and actually cooperate to combat terrorism as is our stated National Security Strategy
- Stop illegally detaining people without due process
- Be honest about the state of affairs in Iraq (i.e. stop treating the war as a PR venture and start an honest dialogue with the international community about the long term prospects of stability, democracy, and peace in Iraq)

As I said before, we can do better.

2 Comments:

Blogger Snake Vargas said...

Now I know this is going to get you all fired up again and I’ve labored over whether I should respond or not but I felt that I should at least be afforded the opportunity reply to your points, so here goes.

I'll grant you that you know far more about international law than I'll ever even have any interest in knowing, and I was just writing off the cuff and was not about to do any research for a response but instead was expressing my personal beliefs. Those beliefs are that sometimes “The End justifies the Means” and I’m ok with secret prisons for extremists (Hell, the average person really doesn’t care and frankly doesn’t even want to know about it as long as they are safer because of it), I’m ok with pulling the worst of the scum off the streets whenever we have the chance, and that if you really have a gripe then you should be doing something about it other than just complaining!

Now I thought I was the idealistic one between us, but even I see that your four proposed solutions are completely unrealistic. I don't dispute that Bush is an idiot, and it wouldn’t surprise me if he invaded Wisconsin because he got a tip that there were hidden warehouses with stashes of repugnant smelling cheese, but firing him isn’t a realistic solution. What happens then, who fills our void? Not Kerry, sure as hell not Cheney, Howard Dean is a little too far out there as well. The base problem with all of those guys and just about everyone in Washington is that they are politicians who have to be reelected so they are going to do and say what those who pay the bills want them to. They are all just as much a part of the problem as they are the solution. Bush is just the current poster boy for presidential stupidity and our history of presidents has had quite a few like Wilson, Carter (while in office, he’s been much more effective to the world since getting beaten in 1980), Grant, Taft (come on the guy got stuck in his own bathtub for crying out loud) Hoover, and others. In time a new president will be elected and maybe we can get another FDR, Lincoln, Washington, Teddy Roosevelt, or Truman but in general it takes conflict to create great presidents like those and even they never last and must be reelected as well. The only way that we will ever be able to follow one righteous path where we do right for the right reasons is if we have one leader who answers only to himself/herself and who can work towards long term goals because they don’t have to be reelected in the short term. It is doubtful that person will ever exist in the United States.

It is also not realistic to believe that just because we play nice the rest of the world will too. Every leader in the world sometimes has to make decisions that he believes are for the good of his country and to the detriment of all the others... it is the same way that a normal person has to live their life. Parents divorce because it is what is best for them even though it may hurt a child. Companies are forced to layoff employees to cut costs so that they don’t have to shutdown completely and fire everyone. You blow through a stop sign because you are in a hurry without thinking of the fact that someone else might be doing the same thing. You must pick and choose your battles, and I again admit this administration sucks at both choosing what to do and at keeping what it is doing under wraps when it is doing covert ops but it really doesn’t matter. We will do what we want to do, and so will everyone else and there is NOTHING you can do about that!

Concerning sharing information with our allies… First off, you and I don’t know what is shared and what isn’t so it is hard to say we aren’t doing enough. Secondly, I also have to believe that there are pieces of information out there that we should NEVER give up to other countries because it could compromise our abilities to gather further information and also our own security. Thirdly, just because someone is a friend today doesn’t mean they are going to be tomorrow and some countries (like Russia for example) will generally be more concerned with their own agenda than with a global agenda so why help them? This isn’t a perfect world where we can completely trust our allies (Israel for example has been caught spying on us) and won’t be anytime soon.

About treaties I’ll say again is doesn’t matter what we or anyone else signs, countries are going to do whatever the hell they want. Right now we are the bad guys, and once this schmuck is out of office I hope that we won’t be, but just because we refuse to sign something like the Kyoto Protocol doesn’t mean that we are worse than the country that does sign it but breaks the restrictions anyway. We do have an obligation to lead by example because we are the most powerful country in the world, but we don’t have an obligation to be the solution to all of the world’s ills. We should be here to help the less fortunate of the world (and those at home) but not to provide a perfect existence to all that ask for it.

One last thing about Human Rights and the legalities of what we do with rebel scum… What matters to me is that I value an American life over the life of some whack-job who is trying to blow himself and a bunch of innocents up because someone brainwashed him to believe that he’ll be received by 50 virgins in heaven. If that means that we ship them away for a while until things calm down then so be it. If that means we don’t grant him a lawyer to defend himself against the charges then so be it. If that means that ONE American life was spared because that whack-job no longer had access to an AK-47 then SO BE IT! We do not live in a perfect world and NEVER will because we will NEVER be able to appease the Bin Ladin types no matter what we do. This isn’t Starfleet, there is no prime directive, and there is no super fun happy land.

Look, if you want to solve starvation then go to a poor country and spend your time and money feeding them and teaching them better ways to grow their own food so they are less dependent upon the meager handouts available. If you want to rid the US political system of politicians who are controlled by corporations then run for office and accept no money from them. If you want to be honest about the state of affairs then be an investigative reporter and don’t report just one side like Fox News does. If you want to make a difference get off your soap box and stop just talking about it in a blog and go out in the world and do something!

4:44 PM  
Blogger SJH said...

I only have a few disagreements with what you said, but, I totally agree with your cynical attitude about politics in general and Presidents in general. I also agree that just because a treaty is passed, doesn't mean we should ratify it. Kyoto, of which my knowledge is admittedly limited, does not seem like the sort of thing I would want the US getting into. High cost, low gain.

That being said, I have fundamental objections to your philosophical stance.

1. WE DON'T KNOW IF THEY ARE REBEL SCUM. The ENTIRE reason that due process exists is to allow governments to pursue suspects in ways that accomplish the goal of protecting the public without being tryannical. If they just get to assert that X is a "terrorist" and never have ANY burden of proof then there is nothing to stop the CIA from whisking law abiding citizens off the streets like you and me or non-law abiding citizens like drug dealers.

2. IT IS THE STATED NATIONAL SECURITY STRATEGY OF THE UNITED STATES TO COOPERATE WITH ALLIES TO FIGHT TERRORISM. Your whole rant about allies not always being allies and that we shouldn't trust them is entirely irrelevant. We're not talking about giving up nuclear codes. We're talking about saying, "hey, we got Mr. X under surveillance. we think he's a terrorist. what you got on him?" This is time sensitive stuff that doesn't reveal national secrets and could be valuable to aid in preventing terrorism.

I agree we don't know the true state of cooperation, but I think we can concur that the Italy incident is a bad sign and given the unilateral inclinations of this administration, my intuition says that incidents like this are probably more normal than we imagine.

3. It's not idealistic to believe that nations will follow our lead on many issues if we are a bit more clever about how we do things. I'm not talking about north korea here. We deal with them by containing them with military strength. Instead, we're talking about using leverage (economic, political, cultural, etc) that we have as the world's superpowers over allies and neutral countries. This admin seems to think the ONLY type of power works is military force and threats. The old adage about winning more flies with honey wins the day. A bit more clever and less adversarial diplomacy could improve the effectiveness of our power.

For example, if a state like Egypt has a penchant for torturing prisoners and their great ally the US who gives them $1 billion/year takes no position on torture or facilitates torture or engages in torture, then that state is more likely to engage in torture because they have the world's superpower providing political cover. It doesn't take a genius to perceive that a strong US stance on issues like that can and does have influence over other nations. We have the power; we just ain't using it.

4. Attempting to convince traditional republican voters like you that the GOP has F'ed up US foreign policy IS taking action. Besides, I am moving to a poor country, biatch! But point taken.

5. The 'fire bush' line was a joke.

5:52 PM  

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