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[LITERATURE] The Enemy Within (War & Terrorism)

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  • madchinaman
    The Enemy Within By FAREED ZAKARIA Fareed Zakaria is the editor of Newsweek International, the author of The Future of Freedom and the host of the PBS
    Message 1 of 1 , Dec 17, 2006
      The Enemy Within
      Fareed Zakaria is the editor of Newsweek International, the author
      of "The Future of Freedom" and the host of the PBS program "Foreign


      An Insider's Account of the War on Terror.
      By John Yoo.
      292 pp. Atlantic Monthly Press. $24.
      Preserving Civil Liberties in an Age of Terrorism.
      By Bruce Ackerman.
      227 pp. Yale University Press. $26.

      At the heart of Yoo's argument is the notion that we are at war. "If,
      during the cold war," he writes, "the Soviet Union had sent K.G.B.
      agents to drive airplanes through American skyscrapers, the United
      States would have retaliated, our nation would have gone on a war
      footing. ... Why should status as an international terrorist
      organization rather than a nation-state make a difference as to
      whether we are at war?"


      Everyone accepts that "the rule of law" is the foundation of
      liberties in the Western world. But when did this hallowed tradition
      begin? Obviously there's no exact moment, but one could reasonably
      point to the day in 1215 when, in a small borough outside London
      called Runnymede, King John was forced by his barons to sign Magna
      Carta. That document protected the rights of feudal lords, but in
      doing so it outlined — for the first time in history — legal
      procedures that even the king had to follow. These limitations are
      set out in Article 39 of the document, which states that "No free man
      shall be seized or imprisoned, or stripped of his rights or
      possessions, or outlawed or exiled, or deprived of his standing in
      any other way, nor will we proceed with force against him, or send
      others to do so, except by the lawful judgment of his equals or by
      the law of the land."

      This writ — or written order — has developed over the years as the
      principal check on arbitrary state power, the original human right,
      allowing a person who has been arrested to challenge the legality of
      that detention. It is called the "great writ," habeas corpus,
      or "produce the body so that it may be examined." Habeas corpus was
      codified by the British Parliament in 1640 and 1679 and is one of a
      handful of common laws explicitly referred to and protected in the
      American Constitution. Alexander Hamilton, the most zealous exponent
      of executive power among the founding fathers, noted that habeas
      corpus provided "perhaps greater securities to liberty and
      republicanism" than any clause of the Constitution.

      But as of Oct. 17 of this year, this great writ has been
      substantially weakened in the United States by the assent of both the
      presidency and Congress. The Military Commissions Act of 2006
      eliminates habeas corpus for anyone defined as an "unlawful enemy
      combatant," as well as all aliens, including permanent residents —
      green-card holders — of the United States. There remains a form of
      judicial review for "unlawful enemy combatants," but it is one that
      the administration seems allowed to bypass (though the exact legal
      status of unlawful combatants remains unclear). In effect, federal
      courts appear to have been stripped of their historic role in
      assessing the legality of detentions if the executive branch claims
      that these arrests are part of the war on terror.

      How did we come to this point? Do the dangers of terrorists and
      terrorism require so broad a shift in the balance of powers and such
      an outright challenge to the liberty of the Republic? What is the
      justification behind these moves? John Yoo has tried to answer these
      questions in "War by Other Means: An Insider's Account of the War on
      Terror." He is well placed to do so. He was a deputy assistant
      attorney general in the Justice Department from 2001 to 2003 and
      became one of the principal authors of the Bush administration's
      policies regarding arrests, detentions, interrogations and the
      treatment of prisoners. Since 2003, as a professor at the University
      of California, Berkeley, Law School, Yoo has vigorously defended the
      Bush administration's legal actions and approaches.

      At the heart of Yoo's argument is the notion that we are at war. "If,
      during the cold war," he writes, "the Soviet Union had sent K.G.B.
      agents to drive airplanes through American skyscrapers, the United
      States would have retaliated, our nation would have gone on a war
      footing. ... Why should status as an international terrorist
      organization rather than a nation-state make a difference as to
      whether we are at war?"

      Everything in Yoo's analysis follows from this fundamental premise.
      Detaining operatives of Al Qaeda presents no constitutional problem
      because they are, in effect, prisoners of war. "Hundreds of thousands
      of enemy prisoners of war were captured in Vietnam, Korea and World
      Wars I or II, and their imprisonment was never reviewed by an
      American court." Think of all the objections people have made to the
      Bush administration's policies and ask yourself, "If we were in the
      middle of World War II and these were German soldiers, would it be
      permissible?" Yoo acknowledges, for example, that the administration
      chose Guantánamo as the prison camp for suspected Qaeda warriors
      precisely because it did not want federal courts to have any
      jurisdiction over the place. For Yoo, since we are at war, we need an
      aggressive interpretation of executive power — inherent in the
      president's role as commander in chief — and one that bypasses
      Congress, the courts and peacetime protections like checks and

      But are we really at war? And if so, who are we at war against? Is it
      just Al Qaeda or more than that one organization? Is it, as the
      president has often said, a war on terror itself? Many experts have
      pointed out that you cannot declare war on a tactic (terrorism). As
      the international policy analyst Grenville Byford noted in Foreign
      Affairs, wars are more fruitfully declared against proper nouns
      (Germany, Japan) than common nouns (terror, poverty). If this is a
      war, moreover, when will it end? How will we know it has ended and
      whether we have won or lost? These questions do not have easy
      answers, as Yoo's own analysis demonstrates. While arguing throughout
      the book that we are at war, he also insists that we should not apply
      the most well established rules of war, the Geneva Conventions, to
      Qaeda prisoners because, well, we are not at war. The conventions are
      meant to apply to uniformed soldiers captured in war, and that does
      not describe prisoners in the current conflict.

      The practical problems in applying the war model reveal the
      complexity of our circumstances. During World War II, there was
      rarely any doubt whether captured German soldiers were in fact
      fighting for the enemy. But with many of those captured as part of
      the war on terror, it remains extremely unclear whether they are, in
      fact, enemies of the United States. Is it necessary to torture some
      of them in ways that peacetime laws might prohibit? Yoo tends to
      answer these questions with assertions like "Both Porter Goss, the
      past director of the C.I.A., and Vice President Cheney, who know far
      more than they can reveal publicly, have said that such operations
      are vital to protect the United States from attack." Well, that
      settles it then.

      Against this "trust us" doctrine we have Ron Suskind's richly
      reported details in his recent book, "The One Percent Doctrine,"
      which reveal how many people have been wrongly arrested, how often
      torture produced bad information and how few real benefits have been
      derived from these aggressive interpretations of law and foreign
      policy. Yoo explains that torturing Abu Zubaydah — Al Qaeda's No. 3
      leader — was vital to uncovering new plots against America. The
      president described Zubaydah's harsh interrogation as crucial to the
      war on terror. But Suskind actually talked to those who did the
      roughhousing, and they told him that Zubaydah was in fact
      unimportant, a man in charge of minor logistics for Al Qaeda like
      travel for wives and children. What's more, he was mentally
      unstable. "The guy is insane, certifiable, split personality," the
      F.B.I.'s top Qaeda analyst told Suskind. He provided no information
      of value whatsoever.

      Another complication is that traditionally P.O.W.'s have been held
      without trial because they were usually released when hostilities
      ended. But does this model apply in a war of indefinite duration? As
      the administration has found, as a practical matter, it cannot detain
      hundreds of people in a legal black hole with no end in sight. Yoo
      argues that "indefinite" does not mean "forever" and that if
      prisoners can be returned to their home countries without fear that
      they will start up terrorist activities again, then they should be
      released. But, as with much of Yoo's analysis, everything is left to
      the discretion of the commander in chief. We are at war, after all.

      But it is abundantly clear that the "war on terror" is not a war in
      the traditional sense and that we do not have an enemy in the
      traditional sense. In "Before the Next Attack," Bruce Ackerman, a
      Yale law professor, points out that the problem of terrorism is not
      one of a single overarching state that has attacked us and threatens
      our existence. In fact a key feature of the modern world is that the
      state has lost control over violence. "The root of our problem is not
      Islam or any ideology, but a fundamental change in the relationship
      between the state, the market and technologies of destruction,"
      Ackerman writes. "If the Middle East were magically transformed into
      a vast oasis of peace and democracy, fringe groups from other places
      would rise to fill the gap." Ackerman's argument could be put
      differently. We are facing a situation that is actually more
      revolutionary than the one portrayed by the Bush administration. It's
      not that we're at war. It's that the nature of peace has been
      fundamentally altered. From now on, we will have to worry about small
      groups, without countries or uniforms, who can cause us serious harm.

      Ackerman accepts that the law-enforcement model is not appropriate
      for the challenge of terrorism, since our aim is not to investigate
      the next terror attack but to prevent it, in fact to pre-empt it. But
      that is still a different problem from the threat of a full-scale
      invasion by a great power. Most important, what we now face is likely
      to be a permanent condition, and this means we need new rules.
      Ackerman proposes an emergency constitution that would take effect
      after a major terrorist attack and would include some of the
      restrictions of the Bush administration's approach. But it would also
      expire periodically and could be renewed only by ever-increasing
      Congressional majorities. Additionally, courts would be able to
      review any revisions. Ackerman's solution may or may not be
      practical, but at least he confronts the problem intelligently, and
      he is surely correct to say that it's not a good idea to respond to
      particular crises with ad hoc changes to our laws. If we don't think
      through the basic structure of rules, rights and protections we want,
      every new attack will produce creeping but permanent limits on

      There is one aspect of our new condition that neither Yoo nor
      Ackerman addresses in much depth — the broader political context. The
      United States is fighting a strange war indeed, one that is, in some
      fundamental ways, an extended campaign of public diplomacy against
      ideologies of extremism and violence. This campaign is not simply a
      matter of battling on the air waves with Al Jazeera across the Arab
      world. It is a matter of reaching into communities. The best sources
      of intelligence on jihadi cells have tended to come from within
      localities and neighborhoods. This information has probably been more
      useful than any we have obtained from waterboarding or sleep

      Yoo frequently cites a famous case of Nazi agents — Germans and
      German-Americans — who landed secretly on Long Island in 1942,
      planning to destroy key elements of America's industrial strength:
      power plants, factories and bridges. They were arrested by the F.B.I.
      and tried by a military tribunal. The case reached the Supreme Court,
      which upheld the Roosevelt administration's actions. Many of the
      justices did so uneasily, but they felt they could not really
      overturn the administration's decision in the midst of World War II.
      The more notable aspect of this story, however, is that these men
      were arrested not because of any emergency powers of the executive
      branch. One of them, who had lived for some years in the United
      States, turned out to have stronger feelings of affection for America
      than for Germany. Soon after the agents landed, he contacted the
      F.B.I., which dismissed his tale at first, but he persisted and,
      finally, the men were arrested.

      In its campaign against terror groups, the United States must summon
      all the strength and skills it can muster. But perhaps our most
      potent weapons are the sense people around the world have had that
      the United States is an exemplar of rights and liberties and that it
      lives by those principles even under storm and stress. When we
      suspend the writ of habeas corpus, we cast aside these distinctive
      weapons and trade them for the traditional tools of dictatorships —
      arbitrary arrests, indefinite imprisonments and aggressive
      interrogations. Will this trade really help us prevail?
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