The Guantanamo internees

I’m confused.

The United States has been attacked by the organization known as al-Qaeda on several occasions, most dramatically on 9-11. It seems to me natural to say that al-Qaeda has been, and still is, “waging war” on the United States. (Yes, wars are usually waged between nations, but I don’t see why that should be regarded as part of the definition of war.)

Prisoners of war are held until the fighting ends, ordinarily with a surrender or peace treaty. They’re entitled to certain privileges under the Geneva Conventions, but those do not include the right to a lawyer or the right to contest their confinement in court. An unlawful combatant, such as a spy or a saboteur or a terrorist, or a member of a group such as al-Qaeda that isn’t an army, isn’t even entitled to that much.

So I’m having a hard time understanding what the problem is supposed to be about our holding al-Qaeda prisoners (captured in Afghanistan or elswhere) at Guantanamo indefinitely without access to counsel.

When it comes to American citizens or those captured on American territory, habeas corpus ought to apply, since we certainly don’t face the “rebellion or invasion” that would justify its suspension. That makes me very uncomfortable about the Padilla case. But I can’t see what happens to the others as anything resembling a problem about civil liberty or the rule of law.

In some cases, there is an obvious distinction between al-Qaeda prisoners and ordinary prisoners of war: a POW is usually captured in uniform or on the battlefield, so the question of whether he is actually an enemy combatant more or less answers itself. If we swoop down on an Afghan valley or a house in the Sudan and capture six people not in uniform and not actually fighting, whom we think are al-Qaeda members, there might be a legitimate question about whether they are, in fact, al-Qaeda members.

Sp perhaps we need a process by which a relatively impartial judge examines the evidence. But I don’t see that as a requirement either of our domestic law or of international law. And I don’t think it has even been charged that the Guantanamo internees are being actively maltreated.

So what, exactly, is the fuss about?

Update A frequent and friendly email correspondent responds with a brief note: “You’re kidding, right?”

Wrong. I’m deadly serious. And I’m waiting for someone to explain to me why my position is incorrect, rather than merely expressing shock that I hold it.

There are (at least) two kinds of people who furiously oppose the Bush Administration. Some oppose it because they disagree with the idea that we’re at war with the political brand of Islamic fundamentalism, or rather disbelieve the notion that the political brand of Islamic fundamentalism is making war on us.

Others, including the undersigned, oppose it (among other excellent reasons) because they think Mr. Bush and his advisers are waging our side of that war fecklessly and irresponsibly: neglecting domestic security, not aggressively pursuing defenses against bioterror including smallpox innoculation, following a reckless fiscal policy that leaves us vulnerable to a currency crisis, following a diplomatic (or rather undiplomatic) course that has divided our friends abroad and united our foes, and waging a scorched-earth politics that divides our country when it most needs to be united.

To say that we’re at war does not imply that action by the unformed armed forces is the most important response. Diplomacy, intelligence-gathering, covert operations, law enforcement (e.g., to identify and sequester the terrorists’s funds) and domstic target-hardening are all likely to be at least equally important.

But to say we’re at war, or rather that war is being waged against us, does mean that we need to act as if we were at war. And that includes holding enemy prisoners until the war ends.

Second update Michael Froomkin makes the point that if we’re fighting “terrorism” the war will never end, almost by definition, since terrorism is always a threat. But in fact we’re not fighting “terrorism,” we’re fighting al-Qaeda. And al-Qaeda could surrender (or disband). So the duration of the captivity of the prisoners depends on the decision of the entity they were fighting for, just as in any other war.

Third update Brian at Crooked Timber disagrees, and is especially concerned about the factual question of who among the captives is actually a member of al-Qaeda. I agree with him in regretting that the Executive Branch is currently in the hands of some untrustworthy characters, and I hope that situation will change next January. But I can’t get away from the thought that identifying enemy combatants is an executive, rather than a judicial, function.

Being a member of al-Qaeda doesn’t in itself constitute a crime, but it does constitute sufficient reason to keep someone locked up until al-Qaeda stops being a threat to the United States. So what do the critics of the current policy propose to do with al-Qaeda members now held at Guantanamo who can’t be shown beyond reasonable doubt to be guilty of some specific crime? Just turn them loose?

And if we’re not going to turn the “innocent” loose, what’s the purpose of holding a trial?

Intelligence failures, there and here

A friend who is also an accredited Republican foreign-policy expert offers this thought:

The intelligence failure that might win this election for John Kerry isn’t the mistake over weapons of mass destruction in Iraq. The intelligence system now in place to protect against domestic threats is exactly the same intelligence system that missed the 9-11 attacks.

Kerry should stop talking about weapons in Baghdad and Tikrit and start talking about threats to Boston and Tulsa.

Soft on terrorism

The editors of the Washington Post, after three years of steady Bush-boosting, seem to be a little bit perturbed:

The attempt by Pakistani President Pervez Musharraf to whitewash his country’s marketing of nuclear weapons technology to rogue dictatorships and sponsors of terrorism comes as no surprise. The general and his government have been lying for years about the illegal traffic. Now that their cover has been blown by evidence supplied to the United Nations by Libya and Iran, they are attempting to pin all the blame on a single scientist while stonewalling any international investigation. On Wednesday Abdul Qadeer Khan, the chief designer of Pakistan’s atomic weapons, confessed on television to selling his work through an international black market and claimed he acted alone — contradicting his previous implication of Mr. Musharraf and other top generals. Yesterday Mr. Musharraf duly pardoned him, called him a hero and declared that Pakistan would not supply documentation to the International Atomic Energy Agency or admit its investigators.

Such belligerence could be expected from a military ruler. What’s hard to believe is the Bush administration’s reaction to it. Rather than moving to impose sanctions on Pakistan — action that might be expected for a government that has been caught providing the technology for nuclear weapons to such countries as Iran, Libya and North Korea — it has swallowed his coverup and even congratulated him on it.

The Chicago Sun-Times reports that Khan is being allowed to keep the millions he made selling nuclear technology to maniacs.

Greg Palast reports that the administration had deliberately prevented an investigation of Khan’s activities two years ago, to protect the Saudi sources of the money he was receiving.

Think about this the next time the President’s supporters tell you that it’s his opponents who don’t take the threats of terrorism and weapons of mass destruction seriously.

Maher Arar: the RCMP plays CYA

Here’s what seems to be a good, competent piece of journalism on the Maher Arar case.

And here’s what’s happening to the journalist.

And that’s why we must never, never, ever consider anything that resembles an Official Secrets Act. All leaks of classified information are not created equal.

Meantime, Kevin Drum points to a thorough series of posts on the Maher Arar affair at Obsidian Wings.

Apparently Maher Arar plans to sue the U.S. in federal court. If (as seems grossly unlikely at first blush to my inexpert eye) the case were to make it past a summary judgment motion, the discovery proceedings could be fascinating.

Update Thanks to readers for several corrections. I’ve made the trivial ones silently above. Substantive points:

1. Apparently the sources, rather than the reporter, are the targets of the investigation. Still seems like a bad idea.

2. I should have said “12 (b) (6) motion” rather than “summary judgment” above. A summary judgment motion comes after discovery, not before.

3. A reader who should know tells me that the statutes in question make Arar’s case a strong one out of the starting gate. The government would have to claim either that the torture didn’t occur, or that it was is exempt from judicial consideration as the sovereign act of the Syrian government and that the U.S. government justifiably relied on Syrian assurances that the torture would not take place. Any of those claims would seem to fail the giggle test, not to say the sniff test. I’m happy to be corrected on this point, as I’d love to see a nice juicy trial in which the Bush Administration had to defend sending victims to Syrian torturers.

A kinder and gentler terrorist

The New York Times gives Gerry Adams’s book a favorable write-up. Maria at Crooked Timber disapproves.

Me, too.

There’s a simple fact about the IRA that most of its supporters tend to ignore: The voice is the voice of the Sons of Liberty, but the hands are the hands of the Corleone family.

Share power with Gerry Adams to stop the killing? Well, if it’s necessary, it’s necessary. But pretend that he isn’t a mass murderer, the chief of a gang of extortionists? No way. And somehow I don’t get all warm and fuzzy when I learn that a mass murderer has a “sense of humor.”

I stand by my previously-stated proposal for dealing with the problem.

Update Yes, when Jacob fooled his father into disinheriting his brother, it was the voice, not the hands, that reflected the actual situation. But that was then, and this is now.

Retaliatory terrorism?

Let me make sure I’ve got this straight:

Ilka Schroeder, a 25-year-old ex-Green Party member, opponent of globalization and intervention in Kosovo, now a member of the European Parliament, says that the EU has been giving money to Palestinian causes, some of which has been diverted to funding terrorism, as an element of a “proxy war” against the United States.

Glenn Reynolds agrees with her, citing this post, which is somewhat more emphatic than the original story in asserting that intentional funding of terrorism, rather than misspending of EU funds, is an “open secret” in Brussels.

Reynolds then suggests that Israel and the United States might retaliate by sponsoring terrorism directed at Europeans.

Europeans should worry, though, about what will happen if Israel — or America — decides to return the favor. Providing financial aid to terrorists who target European civilians would be uncivilized — but, then, the Europeans are supposed to be the civilized ones, no?

Note that Glenn doesn’t quite endorse the idea, but he doesn’t denounce it either. And since it seems to be entirely his idea, he presumably knows whether he considers it a hope or a fear.

I think this is what Glenn’s friends mean when they refer to his subtle sense of humor. (Nixon’s people called it “plausible deniability.”) But I’m hoping for one of Glenn’s patented I-was-just-kidding updates, just to be sure.

And I’m hoping that some of his warblogger friends will take this occasion to distance themselves from what seems to be a truly evil idea. Pardon me for being dense, but we’re supposed to be the ones who are against terrorism, no?

[Thanks to Very Very Happy (via Atrios) for the pointer.]

Reducing the threat to airliners
    from shoulder-launched missiles

In the latest issue of the Federation of American Scientists’ Public Interest Report, (not on the web yet, but soon available here) Robert Sherman argues that attacks on airliners using shoulder-launched missiles could be used by terrorists to devastate world air transport.

Sherman argues for “controllable enabling” (roughly the technology that makes your car stero not worth stealing) to reduce the damage from stolen weapons. He also tells a sad and entirely credible organizational-behavior story about why that wasn’t done years ago.

Smallpox vaccine and HIV susceptibility

The temporal relationship between the eradication of smallpox and the consequent end of smallpox vaccination on the one hand and the beginning of the AIDS epidemic in Africa on the other has led some scientists to speculate that smallpox vaccine might have some protective benefit against HIV infection. A team at George Mason has just published a press release claiming in vitro evidence to support that speculation. [*]

If that were true, the case for population-wide innoculation would be even stronger than I already thought it was.[*]

One in vitro test on twenty samples isn’t enough to make policy on. Right now, the right thing to do is more experiments. A major potential problem with a world-wide vaccination program is that smallpox vaccine shouldn’t be given to those who are HIV-positive, which is a big problem in Africa where prevalence is hight and the cost of testing is significant.

However, finding out whether the George Mason team is right, and then doing the right thing about it if they are, is a lot more important to the defense of this country than 98% of what’s now being done in the name of the war on terrorism.

I just wish I thought that the current administration was on top of this, and willing, if it proved out, to divert some money from either the occupation effort in Iraq or the bank accounts of dividend recipients to pay for a crash program of vaccine development and administration, not just here but worldwide.

What’s “right-wing” about confronting the Saudis?

I was struck by the following phrase in Max Sawicky’s account of the first Democratic “debate”:

Bob Graham has chosen the awkward position of being to the right of George Bush on defense.

Because I think that a winning Democratic campaign ought to stress Bush’s inconsistency and (in some areas) appalling laxity about the true threats we face from various brands of politicized Islam, I paid more attention to the sentence than I otherwise might have, and noticed how odd the phrase “to the right” seems in this context. Not that I haven’t used the same locution myself, but on reflection it strikes me as bizarre, and perhaps reflective of a serious problem for progressive politics in the post-9-11 situation.

During the Cold War, there was an important sense in which hawkishness was truly a right-wing position. By “right-wing” here I mean “tending to support the interests and promote the political power of the rich, the landlords, and the employers against those of the poor, the peasants, and the employees.”

Because leftist governments and movements around the world had access to Russian and Chinese support, and because the right wing around the world preferred the US side to the Russian side in the Cold War, the US reflex was to support right-wing regimes and movements, some of them nasty (Diem, the Shah, the Greek colonels, the Saudi monarchy, Pinochet) and some of them truly revolting (Mobutu, the South African nationalists, Savimbi, the Contras, the Afghanistani mujaheddin).

This is not the place to rehash the arguments about what was really good for the countries in question, or the poor people in them particularly, or whether we were or were not justified in supporting “our SOBs”: it’s enough to say that if you were to the left of center in a Third World country, the US was generally not your friend. Until the Carter era, we weren’t even clearly in favor, as a practical matter, of the liberal (as opposed to leftist) principles of free elections and human rights.

As a result, and especially during and after the Vietnam debacle, support for a strong US military was greater on the right side of the US political spectrum than on the left side. But that difference was historically specific; insofar as military spending was a left/right issue in the Roosevelt era, it was the left that wanted strength and the right that preached “economy in government” and “no entangling alliances.” In the Clinton era, spending on the military remained more popular on the right, but using the military the way Clinton used it — in Haiti and Yugoslavia — was supported more by Democrats than by Republicans. [Clinton’s, and Gore’s, failure to use Republican opposition to intervention in Kosovo to question the patriotism of Republicans was ethically admirable but perhaps a tactical blunder.]

In the current situation, the main threat to the US comes from movements and regimes that are both right-wing and illiberal. That ought to be a political gift to the Democrats. The phrase “Taliban wing of the Republican party,” which had a brief vogue as a description of Pat Robertson and his buddies, was grossly unfair, but it reflected quite genuine commonalities between American and Islamic fundamentalists who were lovers of hierarchy and traditional values and opponents of social democracy and of more equal social, political, and economic roles for women. (I recall Jesse Helms expressing admiration for the Saudi law prescribing stoning for adulterous wives.)

So on what theory is criticizing the subservience of the House of Bush to the House of Saud “attacking Bush from the right”? Unless it has become the “left” position that American power per se is excessive and should be reduced, this is a moment when the left ought — both because it’s good politics and because it’s consistent with both leftist and liberal values — to be demanding that the US get tough on the Saudi monarchy, which combines reactionary theocratic tyranny at home with support for terrorism abroad.

We should also be demanding enormous increases in expenditure for true homeland defense, and in particular a rebuilding of our hollowed-out public health infrastructure. Cracking down on the offshore banking centers that serve the interests of tax evaders, organized criminals, and terrorists alike is another obviously progressive idea, and the fact that the pro-tax evasion folks at Heritage talked Bush into backing off from offshore banking enforcement early in the administration ought to be a Democratic campaign theme for 2004. And if we’re at war, then what is the President doing cutting taxes? Doesn’t he know that armies cost money?

There’s plenty of room for progressives to criticize Bushite unilaterialism and cowboyism. But that’s not the same as opposing vigorous action against those who hate this country and what it represents, and who hate us precisely because of the elements of our society that are most progressive.

If freeing the Haitians from the tyranny of the Tontons Macoutes, or the East Timorese from the tyranny of the Indonesian army, were progressive things to do, why isn’t freeing the black Sudanese from the tyranny (amounting in some cases to actual slaveholding) of the Arab Sudanese an equally progressive goal? The overthrow of the Shah seemed like a good idea at the time, to those of us on the left who didn’t know enough to guess what would replace him. Why shouldn’t the overthrow of the Iranian theocrats and of the Saudi royal family be desired, on the left — precisely on the left — with equal fervency?

Update Max Sawicky replies, thoughtfully as usual.

Primum non nocere: et secundum, et tertium, ad nauseam

A RAND report in the NEJM estimates that pre-emptive mass smallpox vaccination would have a positive expected value of lives saved if the risk of a high-level attack exceeds 1%. It then recommends against mass vaccination.

That can’t possibly be right; what basis is there for thinking that the risk of a major attack is as low as 1%? (And why should we take an attack on 10 airports as the worst case?)

Moreover, the report makes three crucial mistakes:

First, it ignores all the non-mortality impacts of a smallpox attack against an unprotected population: not only temporary disruption and panic, but the substantial risk of sometimes heartbreaking disfigurement.

Second, it ignores the benefits of pre-emptive mass vaccination in case of a hoax attack.

Third, it ignores the deterrent effect of pre-emptive vaccination. Vaccination reduces not only the damage from an attack, but also the risk of an attack, since it means that a potential attacker has less to gain.

The study also seems to assume that the efficacy of post-attack contact tracing followed by isolation and vaccination is independent of the number of susceptibles in the population, which hardly seems plausible. (More fundamentally, it also assumes that the post-attack response will work as well in real life as it does on paper, which is hardly a conservative assumption with respect to the conclusion the study draws, but is not reflected in the sensitivity analysis.)

The estimated death toll from mass national vaccination is about 500: about 3 per million vaccinated. Are we really going to put the whole country at risk of a devastating attack in order to avoid 500 deaths? Now primum non nocere — first, do no harm — is a valuable maxim of medicine. But if doing no harm were all we expected of our health care system, I know where we could save a trillion and a half dollars a year. At some point, health care needs to do some good, even at some risk.

The report is a good illustration of why M.D.s and Ph.D.s in public health aren’t reliable substitutes for people with serious training in policy analysis. Any second-year MPP student should have been able to spot those issues.

The report isn’t a matter of merely academic interest, since the policy it recommends — vaccinating health-care workers only — is the one the Administration is actually pursuing. I hope this means that we have good intelligence showing that Iraq doesn’t have the capacity to mount a smallpox attack. If we’re about to be at war with Iraq, and if we’re not morally certain that Iraq has no such capacity, it’s time for some actual homeland defense.


Duhhhhhhh…. I forgot that a substantial smallpox outbreak in the US would certainly spread to other countries, which is another major cost of not going ahead with vaccination now. Vaccinating our health care workers won’t do anything to protect the rest of the planet. Even ignoring humanitarian considerations — which we shouldn’t — explaining to everybody else in the world why we decided to put them at risk wouldn’t be any fun at all.

Glenn Reynolds, who made the international point before I did, tells me that the real reason for not going ahead with mass vaccination now is logistics. If that’s right, I know what Tom Ridge’s first job ought to be: breaking the logjam and getting this job done.


Phil Carter notes that the Pentagon is drawing up plans for the use of the military to enforce quarantines in case of a bio-warfare attack, and points out that in those circumstances procedural niceties would have to bow to public health. One more cost of not vaccinating now.

[More here.]