Thoughts on the speech... and the other speech

Thu, 05/21/2009 - 11:23pm

I've been playing catch-up this evening by reading Obama's speech on homeland security and then Cheney's speech on homeland security in succession.  Some quick thoughts: 

  • My hypocrisy detector went off with both speeches.  For all of Obama's eloquence, there's simply no way to square his position on releasing torture photos with the other aspects of his speech.  Cheney, on the other hand, kept blasting Democratics for using "euphemisms" -- and yet, when describing what happened to Khalid Sheikh Mohammed, Cheney fell back on "enhanced interrogations." 
  • I agree with Christian Brose that it's odd to read these two speeches in light of Jack Goldsmith's TNR essay comparing the Obama and Bush approaches.  Well, actually, it was mostly odd to read Cheney's speech.  The guts of Obama's critique of the prior administration's approach to these issues was nearly identical to Goldsmith's -- a failure to construct a proper legal edifice, a failure to respect checks and balances, etc.  Given that Jack is a rock-ribbed conservative, this is a point for Obama.  I'm pretty sure, however, that Goldsmith agrees with Cheney on the negative effects of the NYT revealing the Terrorist Surveillance Program. 
  • I also agree with Joshua Keating that Obama's speech by and large anticipated many of Cheney's arguments.  Obama's rebuttal on the transfer of Guantanamo detainees to the United States was particularly effective.
  • Politically, Obama has inherited George W. Bush's greatest political gift -- having adversaries more boneheaded than himself.  While Will Inboden, Philip Zelikow, and Peter Feaver all had some good responses to my lament last week about the state of the GOP on foreign policy and national security, Dick "18% approval rating" Cheney has now cemented his grip on being the party spokesman on this issue in the eyes of the media and the American public.  That's great for Obama and not so good for the GOP.  Beyond the 18% who like Cheney, does anyone think that his speech will persuade others to change their minds? 

What did you think?

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Abusing Goldsmith and other rants

by sjc on Fri, 05/22/2009 - 4:32am

Well it certainly made for some interesting television - it's nice (kind of?) to have an open debate about these things. At least it makes it easier to teach.

The one thing I would say though is that Goldsmith DOES overlook certain serious changes in the Military Tribunals that have been proposed - namely not using evidence obtained through - um, "enhanced interrogation". I think this is a big difference - certainly one that helps to bring the tribunals in line with the Geneva Conventions ("regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. yadda yadda")

However, I think Goldsmith's argument is being relatively abused by the right. His larger point is that, yes, sometimes in an emergency it is important for a president to _temporarily_ extend powers or do something that in more normal circumstances would be illegal - however HOW this is done is where it is important. Peter Wehner, for example,(http://www.commentarymagazine.com/blogs/index.php/wehner/66971) suggests that Bush & Co can be seen in the light of Lincoln. But Goldsmith's whole point is that Lincoln reached across the aisle and FDR was open with what he did. Neither FDR nor Lincoln ever claimed that they had a permanent right to do what they did.

In this sense, yes there may not be shocking differences between Obama and Bush (I actually think there are substantial, if not shocking, ones) but how democracies go about doing these things is important.

Finally, having said all this - if I was a congress person, I might want some details before I signed the $80 million dollar cheque. The Administration should get on this, build on Obama's speech and figure out something more concrete...

but, but..

by fnord on Sat, 05/23/2009 - 2:24pm

Once you have tortured someone into vegetable-stage, they stay broken. So all evidence given afterwards is tainted. Thats the whole point, they are not legaly sentenceable according to US Law. So he has to keep them in "indefinite detention" without trial. Lol, he has caved to Cheney totaly. So much for Obamas honesty.

Question

by AllanGreen on Fri, 05/22/2009 - 5:12am

This may be a dumb question - but why are terrorists not considered enemy combatants?

What treaty specifies "enemy combatant"?

I mean was Che Guevarra not in the same legal status as a terrorist? We have plenty of precedent, don't we?

Same thing goes for piracy - doesn't a pirate basically expose himself to the laws of whatever vessel he challenges - or does having a Panama flag complicate matters. Because if so - it would take Panama one week to sign a guarantee with NATO!

Allow me;

by sjc on Fri, 05/22/2009 - 6:05am

Hi Allan,

I'll be bold here and try to answer your question. Traditionally, in the laws of war, there are four criteria which lawful combatants must adhere to in order to get POW status when captured
1. Wear a uniform/distinctive mark (so as to distinguish yourself as participating legally in hostilities and to distinguish yourself from civilians)
2. Carry your arms openly (see above)
3. Be in an organization with a chain of command (so that if you don't follow the rules you can be held accountable)
4. Follow the laws of war.
This is basically outlined in the Geneva Conventions (specifically, the Third Geneva Convention)

Since 1949 and the emergence of civil wars, guerilla movements on a much wider scale, etc, there has been a movement (in fits and starts) so that as long as a participant carries their arms openly, they can get POW status. This is in the 1977 Additional Protocols to the Geneva Conventions which the US has signed but NOT ratified. (And to which there was much resistance.) However, it has (as in Somalia) been US policy - just not considered a matter of law.

The main arguments against giving terrorists POW status relate back to the four conditions listed above - that terrorists/Al Qaida and the Taliban do not adhere to the requirements of the Geneva Conventioin (which set out both rules and duties for participants - it's a bit of a bargain as well as a humanitarian standard.)

Additionally, some question whether terrorism should be dealt with under the laws of war rather than crime to begin with.

Still, US policy has traditionally been in line with world practice. You're right that the US has been here before. It even had a military tribunal during the Clinton Administration in Kosovo. But I think the Bush/Cheney policies have to be understood in the context of wanting to achieve and extend presidential powers... a rant well documented elsewhere and best saved for another day.

Che Guevarra is probably better distinguished as a guerilla rather than a terrorist. Plus they shot him up real good so it never really became an issue. As for pirates - it's that piracy has universal jurisdiction. Anyone can go after a pirate. Putting them on trial, however, is a giantic pain legally speaking. If a ship has a flag, I believe it is no longer piracy and more like a crime! I don't think Panama would want to go there...

This may be a dumb question -

by J Thomas on Fri, 05/22/2009 - 7:00am

This may be a dumb question - but why are terrorists not considered enemy combatants?

Basicly, because they don't deserve it.

The central difference between legitimate enemy combatants and civilians who commit violence against us is that soldiers have the right to commit violence against us. So we can't try them for murder etc.

They get some differences in treatment -- POW soldiers are allowed to wear their military insignia and have their rank recognised and a few things like that.

But the big important difference is we absolutely will not say to a POW "You shot at US troops and killed one, we're going to try you for murder and if you're convicted you'll hang.".

Both POWs and detained civilians get some rights -- they cannot be forced to work, though they can be offered work for pay. They must be fed and cared for. They must be protected from bombs, artillery, etc. If they have committed crimes, or if they commit crimes while imprisoned, they must be given a fair trial and for most crimes the only punishment is imprisonment. If they commit capital crimes and get a slow fair trial, they must be given six months before execution. In general they must be treated decently.

While the geneva conventions covered treatment for civilians who were discovered to participate in violence, espionage etc, somehow Cheney wanted to create a third category -- enemy combatants who had no rights at all. There was nothing in the Geneva Conventions to support this, nothing at all. But there was discussion in the minutes of one of the committees who created the conventions, where some people did want something like that back then but failed to get their way.

It was nice to see them both

by blue13326 on Fri, 05/22/2009 - 8:19am

It was nice to see them both explicit their views--but largely irrelevant.

If we don't have a major terror attack, then Obama will be supported and vindicated. If we do have a terror attack, Cheney will be vindicated and the Democratic party will suffer another generation of being seen as weak on defense. Words won't change this.

Cheney as GOP Spokesman

by GregRLawson on Fri, 05/22/2009 - 9:24am

While Cheney may not be popular himself, his actual arguments dovetail with what most Americans instinctively feel.

Moral and ethical arguments are great in the abstract, but when people fear for their lives, those arguments become something like Ivory Towered academic debates.

The visceral fear of death is far more powerful than "reasoned" debate.

This does not mean we should just embrace raw animalistic responses, but we should also recognize there's a reality underneath our carefully cultivated, civilized exterior that won't be "argued away" no matter the eloquence of those arguing.

Cheney speaks to the dark side of our nature, but that dark side has not (and I do not believe ever will be) permanently conquered. It can, at best, be managed, but it will slip out.

In this, Cheney is probably far more realistic than the President over the long haul.

Beyond the 18% who like

by J Thomas on Sun, 05/24/2009 - 12:07pm

Beyond the 18% who like Cheney, does anyone think that his speech will persuade others to change their minds?

Not now.

But when we get another big terrorist attack, people will remember that Cheney had an idea to stop it, and we didn't do what Cheney said, and it didn't get stopped.

And if Cheney knows when it will happen he can say just the right things at just the right time.