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July 23, 2007

Trent Lott on Detainees - William Kristol on the Troops
Posted by David Shorr

This New York Times story on the shoddiness of the detainee status review panels, focusing on withering criticism from a reservist intelligence office who took part, prompts me to revisit an NPR piece last week on the Senate habeas corpus debate. The other day I parsed a statement by Sen. Lindsey Graham; today Sen. Trent Lott's quote in the same piece seems highly apropos. Let's look at statements by Lt. Col. Stephen Abraham, the reservist, and Senator Lott side by side.

Here is Col. Abraham's first-hand account of the sloppiness and bias of the status review process:

The classified information was stripped down, watered down, removed of context, incomplete and missing essential information. [later in the article] Anything that resulted in a ‘not enemy combatant’ would just send ripples through the entire process. The interpretation is, ‘You got the wrong result. Do it again.’

The Times story describes one such 'do over.' Col. Abraham and two other review panel members unanimously ruled a Libyan man not to be an enemy combatant, but the Pentagon had another panel look at the case, which rendered a 3-0 outcome more to their liking.

Now to Sen. Lott's comment to NPR (my own transcription):

It’s gonna be a hard sell to say that these people at Guantanamo and others are entitled to all of the legal niceties of the American legal system based on who they are and what they did. At least by me, it won’t be well received

Two points about 'legal niceties.'  First, while Sen. Lott seems to believe that the rights guaranteed by the American legal system are indulgent favors the government grants out of largess, I was taught that they are necessary safeguards to achieve justice despite human fallibility. If nothing else, Lott's approach undercuts the idea that the principles of democracy and rule of law are universal. Second, the presumption of innocence is one of the pillars that distinguishes democracy from authoritarianism. Senator Lott's willingness to paint 'these people at Guantanamo' with a single brushstroke illustrates the problem with military detention perfectly.

Speaking of democratic principles, William Kristol seems to have forgotten another important one...

In a new Weekly Standard column, 'They Don't Really Support the Troops,' Kristol exposes the supposed hypocrisy of liberals professed support for the troops. I'm less interested in the New Republic piece about which Kristol is so outraged (Matthew Yglesias summarizes the controversy here) than in one of the key strands in Kristol's argument:

With the ongoing progress of the surge, and the obvious fact that the vast majority of the troops want to fight and win the war, the "support-the-troops-but-oppose-what-they're-doing" position has become increasingly untenable. How can you say with a straight face that you support the troops while advancing legislation that would undercut their mission and strengthen their enemies?

To support the troops, you have to support the mission, says Kristol. The questions of the success (or not) of the surge and the optimism (or not) of the troops are factual and analytical matters. The question of how we decide the wisdom of a military action is more fundamental to our democracy.

When the country gives them a mission, the troops give that mission everything they've got. They throw every fiber of their physical and mental being into it. That is the essence of being a soldier, sailor, or airman -- and no matter what Kristol says, the whole country, liberals included, is appreciative and admiring.

Executing the mission is the job of the men and women in uniform; deciding the mission is the job of the rest of us. In our system, the military gets its orders from the civilians at the top of the chain of command, who get their mandate from the electorate. And as with the rule of law, civilian control of the military is a principle we advocate to others around the world as a foundation of democracy.


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Let me raise a point that among most foreign policy establishment types has almsot become moot: the relevant question with respect to Guantanamo detainees is not whether they have committed crimes, but rather whether they are likely to engage in terrorist activities if released.

Courts are the appropriate venue for deterimining guilt or innocence. That's not really our interest here, though. What has been needed, for going on six years now, is a regular administrative procedure to get around the inevitable bureaucratic imperative in a situation like this, which is to avoid any risk that someone detained on suspicion of being a terrorist gets released, and turns out to in fact have been a terrorist. The procedure should recognize that it is not in America's interest to pursue "catch-and-release" with dangerous people, but also that in the circumstances of the Afghan war (for example) the decision to take people into custody had to be made quickly, and might therefore have been made wrongly. It doesn't serve our interests to detain people who aren't terrorists, and holding such people for long periods of time in the same facility with genuine terrorists is probably not a good idea either.

No administrative body or procedure is going to get it right every time. But having no administrative body or procedure is a good way to get it wrong. I've always felt that military commissions, properly organized and staffed, could have performed the necessary function, but like so much else in the Bush administration this concept was taken up and quickly laid down in the face of political obstacles within and outside the executive branch.

Be that as it may, I think we should be at pains to avoid making the mistake of devising policy in this area with one eye on ourselves in the mirror -- thinking that justice always means American civilian legal procedures, and vice versa, and that our role as Americans is to show this to the world. Such a conception surely flatters our vanity, but it does not meet our needs.

William Kristol raises a different subject, and meets here an utterly ineffectual, academic objection. I'd suggest saving the rhetoric about civilian control of the military for the next university seminar; the real problem with Kristol is his enthusiasm to see American soldiers killed and American resources wasted out of his personal loyalty to their feckless, incompetent commander in chief.

During half the time this administration has begged for to carry out a counterinsurgency campaign that might have worked had it been tried four years ago, its chief will be goofing off in Crawford or Camp David. For Kristol, like Bush something of a mama's boy, this is just what a President is entitled to do; focusing America's whole foreign policy on one, mid-sized Arab country is likewise bound to look more sensible to someone raised to think of American interests in terms of how they relate to Israeli interests than it is to normal Americans.

I understand that characterizing Kristol's arguments in terms of his commitment to Bush, his personal background, and his willingness to let American soldiers bear the costs of his interest in the Middle East would be awkward for some people. It's intellectually messy; it might even be called unfair on certain points. But the debate over the future of the American commitment in Iraq is not an academic discussion; it's a political fight. Do the opponents of Bush administration policy in Iraq want to win it or not?

These are all excellent. I can't take issue with their substance, nor with the reading of my original points (which is quite acurate). I'll only acknowledge Zathras' points and say why I think my arguments need to be out there.

The delivery of guilt-or-innocence verdicts and the prevention of terrorist attacks are indeed different endeavors, with different standards. But when Lott talks about 'niceties,' I don't think he means the difference between criminal conviction and intelligence. For one thing, a detainee's ability to challenge his detention is much more fundamental than any fine point of criminal procedure. Whether a more objective, dispassionate military administrative would be possible is academic, what we've ended up with has been heavily skewed towards keeping detainees in detention -- pointing toward a need, not for prosecution of all suspects (though a few convictions would be nice, for credibility's sake), but for a link to the independent judiciary.

The other problem with Lott's statement has to do with the presumption of guilt, rather than the presumption of innocence. I recognize that detention of terrorists shouldn't be based on the same burden of proof as criminal conviction, but as you'd agree, there needs to be some burden. For me, the Lott statement in effect says, there's no problem keeping them locked up, the problem is in letting any of them go.

I don't see my objection to Kristol as merely academic. Boy Scout, goodie-goodie, or civics-book - maybe; but not academic. I know this is a political fight, and many of the critiques you raise are needed (though there's a limit to how political this forum can be). The current mess stems from the success of a few people telling everyone else to let them do what needs doing and not worry our pretty little heads. I think reminding ourselves that war is too important to leave to the generals is an important part of digging ourselves out.

Given that officer's may easily view their stance on detainees as a make or break point in their careers, I believe we should take self-interest out of the equation. In today's volunteer Army, where officers are conditioned to think of their career path by the "up or out" doctrine, I don't think a "more objective, dispassionate military administrative" is possible.

Kristol is just dishonest and self-serving. I have stopped trying to consider the psychology behind his actions. He is a fine example of the guy who loves a good fight as long as he's not in it. He's always willing to let others do the killing and the dying. When it was his turn, he stayed home. I vote him Punk of the Month.

OK, one last psych piece on Kristol is irresistable. He hates the troops; the people who are doing what he lacked the courage to do.

What Senator Lott of Mississippi is really saying is: Hey, I know that most of these boys are supposedly innocent. Sure, they just happened to be in the wrong place at the wrong time, but I've heard all that stuff before, and where I come from if you get picked up you're going to get some legal niceties and then get sent to prison like you deserve. All we're doing with these boys is bypassing a useless trial. No need of it. Waste of the taxpayer's money.

In other words, why should these folks be treated any better than unfortunate Americans are? Talk to a southern defense lawyer.

The points David Schorr makes about Sen. Lott are fair. I did not mention Lott myself, because he is responding to criticism of administration policy and appears to be stating a principle of jurisprudence only by accident. Responding to criticism of the administration is about all most Republicans in Congress ever do anymore, even those like Lott who have been treated badly by Bush in the past.

As to the other issue, this site is plenty political. But there are political arguments aimed at persuading people who already agree with you that your side deserves to win, and arguments designed to persuade people who aren't already behind you that the other side deserves to lose. The first kind is what appears most often on DA; the second kind is the one you need.

When the country gives them a mission, the troops give that mission everything they've got. They throw every fiber of their physical and mental being into it.

Not really, not in Iraq currently. The troops have been demoralized by repeated redeployments, personal risk, and the lack of a sensible mission, and many of them realize that they are being used and abused. What keeps most of them going is (1) They feel that they have no choice and (2) They feel obligated to support their buddies and keep them alive.
These factors are quite useful in enabling a rogue administration in its continuance of an unpopular war and are exploited to the fullest by the Pentagon propaganda machine of which William Kristol is an ancillary part.

In our system, the military gets its orders from the civilians at the top of the chain of command, who get their mandate from the electorate. And as with the rule of law, civilian control of the military is a principle we advocate to others around the world as a foundation of democracy.

Really? I didn't know that. Mandate from the electorate? Advocation of civilian control around the world? Any proof of those contentions?

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