The use of terror as a tactic can have multiple strategic objectives. One of the goals of political terrorism can be to cause the state to crack down across the board, infringing upon accustomed freedoms and liberties and isolating the people from their own government. It is for this reason that so many well-intentioned friends of liberty, both here and abroad, find themselves so very uncomfortable – we might almost say “outraged” – about the terrorist detention center at Guantanamo. If a man can be swept up in the confusion of a distant battlefield, declared an unlawful enemy combatant without any form of due process and held without habeus corpus rights “for the duration of the conflict” – virtually in perpetuity, in other words – and with no right to a trial as they have commonly come to be understood, where in this do we find the rule of law? What force can restrain a tyrant – should one arise – from declaring anyone he wants to be an “unlawful enemy combatant” and terrorizing the rest of us?
As we tool up to fight an unconventional foe, how much of what we used to take pride in being – a nation of laws, not men – are we willing to sacrifice in the name of security?
These are terribly important questions, foundational to who we are as a people. And like most important questions, they cannot be answered simply. Our body of international law, including the law of armed conflict, was not set up to comprehend the actions of non-state actors, people who owe no national allegiance, wear no uniforms, acknowledge no notions of proportion or reciprocity – terrorists, in other words, whose very existence is an offense to the corpus of international law. And the first responsibility of the state is to provide security, the reasonable assurance that the citizen will not have to live his life in physical fear, not from the state, not from anyone else, and without which assurance, all other rights are airy intellectual constructs.
What shall we do with people who have been swept up in this our struggle against an implacable foe, but against whom, either due to the exigencies of the battlefield or the need to safeguard classified capabilities and sources, a legal case cannot be built?
Guantanamo has been our answer. In the UK, they have used “control orders.” In the aftermath of yesterday’s fortuitous discoveries – wherein luck and skill were admixed in equal measures to prevent the deaths of hundreds – police all over Britain are on a frantic hunt for a man ostensibly under such control, an Iraqi suspected of involvement in terror plots who has been on the loose for the last ten days or so:
The Iraqi man who went missing on 18 June was the second of his group to abscond from a control order. Last August, Bestun Salim, also absconded. Security officials now believe he has left Britain.
The six Iraqis had been living under control orders since autumn 2005. They were arrested after an MI5-led surveillance operation.
Although they were not charged with any offence, Whitehall sources have claimed they were in the final stages of planning terrorist attacks, possibly involving car bombs.
Instead of charging the men in open court and exposing sensitive intelligence, the government imposed control orders, effectively confining them to their homes for 18 hours a day.
Ineffectively confining them, one might almost say.
Guantanamo makes perfect sense from a security standpoint, even as it offends against our notions of common fairness and gives critics ammunition to assault the nobility of our strategic purpose. The UK has chosen a higher road, with the result that nail-packed car bombs are to be expected around night clubs.
Neither course seems particularly desirable. Such is life in the 21st Century.
“The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” — Supreme Court Justice Robert H. Jackson in dissent, Terminiello v. Chicago, 1949.
“If a man can be swept up in the confusion of a distant battlefield, declared an unlawful enemy combatant without any form of due process and held without habeus corpus rights “for the duration of the conflict” – virtually in perpetuity, in other words – and with no right to a trial as they have commonly come to be understood, where in this do we find the rule of law? What force can restrain a tyrant – should one arise – from declaring anyone he wants to be an “unlawful enemy combatant” and terrorizing the rest of us?”
As usual, you have quite a way with words, sir.
Or to say it another way, you sure can hit the nail right on the head!
No easy answers but you enunciate the question beautifully.
It’ll be interesting to hear what the Supreme Court does since they just agreed to hear the claims of Gitmo detainees that they have a right to challenge their detention in US courts.
Good CAPT Lex, there is a direct link between (at least) one of those who walked away from their control orders, and the failed car bombs in London yesterday. If you’re not allowed to just execute the bastards, and you’re not allowed to intern them, a nation should at least be allowed to pack them on a plane and send them back to whereever they came from. The EU, however, doesn’t allow its individual “member states” to do that, viz what happened in Italy three weeks ago (terrorists in Italy might get hurt if they got sent back to Morocco, so the EU Human Rights court gave them the right to stay in Italy, regardless of what the sovereign nation of Italy desires). Given the hijinks of the past few days, perhaps Great Britain will give the finger to the Belgian Menace and begin taking sane actions to protect herself. And pray that others will follow suit.
Lex, this is a well written article that really challenges our thinking. As I understand the history of a riddle, it pre-dated the “Declaration of Independence”. Here’s the riddle, “Could you tell me, is it the king is law or is it the law is king?” Note- don’t answer it, but ponder or just let your mind dwell on it. Here are some things to think about. What does it mean? What did it mean during the time of the Revolutionary War? O.K., that was great then, but what about now? How would this change us today?
The answers to these questions can be extremely difficult. But they can put you on the path to an answer to Lex’s issues. This is a tough time, but over the time I’ve read this blog, I believe the people here are up to the challenge. What is the old saying? “When the going gets tough, the tough get going.” Ladies, you’re as much in this battle as anybody.
Well, it’s time to get in the battle, let’s go-
Grumpy
What shall we do with people who have been swept up in this our struggle against an implacable foe, but against whom, either due to the exigencies of the battlefield or the need to safeguard classified capabilities and sources, a legal case cannot be built?
Very simple, as per the Geneva Convention.
Execute them.
How many that HAVE been released have reengaged in the fight?
I say let’s not have any more of that please.
unkawill,
I agree completely. I’ve said all along don’t take any prisoners. I understand the need for actionalble intel, but do we need to have so many of these guys at gitmo? Take most of ‘em out on the battlefield. The ones we do set aside for interrogation, interrogate them, try them in a military tribunal, then either return them to their country of origin if innocent (yeah right… they wouldn’t be at gitmo if they were innocent), or execute them if guilty. I believe that the above (gitmo, tribunals, etc) should be reserved for top AQ leadership or extremely high value enemy intel sources. The rest should have never made it off the battlefield.
Jim C
There is nothing new in any of this, except the pusillanimous response of the current western culture. This is what comes of hiding executions from public view. They become unimaginable for the weak-minded. Yes the historic response is interrogation, and a summary court held by those closest to the battle, followed by execution. Bring in the next prisoner!
People sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf. – Orwell
What Zane said.
And on that note, I’d like to wish everyone, and especially Michelle and Deborah, a happy Fourth of July toast:
To the continued sovereignty of the good ol’ USA
— matter of factly giving the finger to the Belgian Menace and all other utopian nuisances since 1776…
And if you have a little time this weekend, watch Breaker Morant. When you look past the subtle jibes at Great Britain’s empire, the movie portrays quite clearly the same dilemmas facing our front line troops on a regular basis, especially our own “irregulars.”
Great film, but way too much of a downer.
Concur with Casca. Characterization was *very* good, the film was accurate as to history, and just too depressingly realistic, even to the band music. (I say that as a former bandsman!)
Yup, I’d watch it again, but would have to work myself up to it, and drink too much afterwards.
A downer, yes, but the reality is that our own troops, especially SOF, fight in that same grey seam as the irregulars. If you do what’s right for your men and your country, you might well get shot for it. A cautionary tale, say.