>> Friday, January 8, 2010
I know its a shocking concept but our country has "been at war with terror" since the invasion of Afghanistan in 2001. Been at war is in quotes if only because the type of war the US has engaged in is not at all the traditional idea of war. The home front has remained mostly in a state of normality. Certainly there have been some changes like the security theater employed at airports but for the most part Americans go through their every day lives without feeling the war or seeing it on tv. Yet our country is straining to accommodate both of these attitudes. How do we reconcile American values with perennial war?
Republicans in our country live in Hobbes' state of nature. They cower in fear demanding an absolute security that can never be achieved. That fear has lead us to lock up some people accused of terror related activities around the world. We lock them in dark forbidding places afraid that they might get out again under any conditions. We have done this in contradiction with the American system of justice. Thus we face dilemmas like this one.
An appeals court expressed uneasiness Thursday with the ramifications of allowing some detainees at a U.S. military prison in Afghanistan to challenge their imprisonment in federal court.
The three judges of the U.S. Court of Appeals for the D.C. Circuit voiced their apprehension during oral arguments in the government's appeal of a lower court ruling that granted three detainees at Bagram Air Base the right to contest their confinement under habeas corpus, a centuries-old legal doctrine. The judges seemed concerned that upholding the decision might extend such rights to other detainees abroad.
The Justice Department has argued that U.S. District Judge John D. Bates erred in granting the three detainees, two Yemenis and a Tunisian, the right to contest their confinements in federal court. The detainees claim that they were captured outside Afghanistan and brought to the U.S. prison at Bagram Air Base, northeast of the capital of Kabul. They have been held for at least six years, their attorneys say.
The entire idea surrounding the concept of enemy combatants is that the united States may be in a war where we dont have the time or the resources to transport, collect evidence or to pursue the traditional methods of justice. Its a protection that in case we captured someone on the battle field we could hold them until we could try them. The argument and the foundation for it takes on a new light when we understand that the United States is always at war.
The adventure in Afghanistan may come to an end in a few years or it may not. If we are dedicated to building a liberal democracy there then it must certainly go on for another decade. In any case the time when trying the people at Bagram will pose no inconvenience and will be easy will never come. The alleged diplomatic issues will always exist. The nature of the conflict and the attitude we have taken ensure that there will always be reasons not to try these people if we allow it. It is easier to let them rot where they are. out of sight out of mind.
In many ways the reticence of the court should bring apprehension for people who value civil liberties. The judicial branch, even with a right leaning Court, seems like the last best hope. The last bulwark against the rising tide of neocon national security. The legislative and executive branches have decided its better to go with the flow than fight the tide. Obama's civil liberties credentials were not particularly string after the Fisa flop but there was hope based on his rhetoric that real positive action might be coming from his administration. One year in its not looking good as Adam Serwer writes in a tapped article Has Obama Abandoned The Obama Doctrine?,
This is irreconcilable with an administration that has pursued indefinite detention, a two-tiered legal system for trying suspected terrorists, and now an ethnic profiling system for Muslim travelers that will do little more than strengthen al-Qaeda's narrative of a clash of civilizations between Islam and the West, and alienate Muslims the president claims he wants to "engage on the basis of mutual interest and mutual respect." His administration, while outlawing torture, is studiously protecting its legal architecture, so that it might rise like a corpse in a George Romero film the next time the GOP takes the White House. What are these, if not policy positions driven entirely by the kind of fear the Obama Doctrine was created to disperse?
The president has not abandoned the high-minded rhetoric of the Obama Doctrine. But he has abandoned virtually all the substantive policy positions it was created to defend, leaving the administration with a shrinking patch of ground perpetually under siege from Republicans who want to turn the United States into a country that tortures people suspected of crimes and denies them any semblance of due process. It's impossible for me to see how the president isn't on the verge of squandering the "new beginning" with Muslims communities he claims is vital to preserving American security.
All of these actions regarding national security and our justice system are warping our country towards the bunker security state. There is a line in Hunt for Red October where the two defecting Russians talk about how in America they let you go from state to state with no papers. Our liberties and freedoms are at the core of America. The longer we try and maintain war as normal life the worse off our country will be. I believe that the Appeals Court should grant the habeas right as a step toward reconciling with our tradition of justice and as a step away from the perennial state of war.
We cannot continue to make the normal life one with the mindset of war.