Arms and influence

Happy Inauguration Day

Sorry to be away, but I've been absolutely buried in work. You can't imagine. While I continue to dig away at the pile, I'll just share a quick clip, apropos of the day: Leonard Cohen singing "Democracy."

New rules for DOJ ball

Whether or not the Obama Administration closes down Guantanamo Bay soon after Inauguration Day, the Department of Justice's role in counterterrorism is going to change:

• The cases against many detainees, at Guantanamo Bay and other facilities, have already been falling apart.
• The Obama Administration will likely not pursue cases as vigorously as its predecessor. For example, by choosing not to contest federal court rulings, such as the recent one concerning the treatment of the Uighur prisoners, Guantanamo will begin to depopulate. In other situations where the Bush DOJ contested decisions, an Obama DOJ is less likely to make the same legal challenges.
• The DOJ is likely to be one of the main targets of the Obama team's planned "personnel review." If you're working for the DOJ, and you're a graduate of Patrick Henry University, you might want to polish up your resume.
• On top of the existing Guantanamo-inspired Supreme Court rulings, more potential cases before the Court are in the works. Again, the Obama Administration can choose not to put up a fight, in which case, the depopulation of Guantanamo will acelerate that much more.

The only thing that might make this situation better is the comic spectacle of some who supported for the bogus "unitary executive" theory now arguing against Obama's presidential discretion in handling these cases. Don't discount the possibility.

Congratulations, President-elect Obama

Now let's see what this country can really do in the world.

Good news devolves into bad

I shouldn't write posts like this one. Celebrating the news that a federal judge ordered the release of the 17 Uighurs held at Guantanamo Bay just jinxed it for them. A circuit court judge ordered the Uighurs' continued imprisonment until the court had a chance to consider the DOJ's plea.

Even more repulsive, the DOJ argued that imprisonment was in the interest of the Uighurs:

The Uighurs had been cleared for release in 2004 but the US says they may face persecution if returned to China.

The White House said if they were released it could set a precedent that would allow "sworn enemies" to seek US entry.

The government says the 17 also pose a security risk if released into the US.

No word yet on whether the same "logic" will apply to Native Americans flying to Canada, Kurds traveling to Turkey, or Sikhs traveling to India.

Here's a link to the SCOTUS Blog's summary of the case so far. It's worth taking a look at Judge Urbina's decision (now in limbo) to order the release of the Uighurs.

Enough with the Uighurs

One piece of good news on an otherwise dreary day: a federal judge has ordered the release of the 17 Uighurs whom the US government has imprisoned at Guantanamo Bay for the last seven years.

At a hearing packed with Uighurs who live in the Washington area, Urbina rejected government arguments that he had no authority to order the men's release. He said he had such authority because the men were being held indefinitely and it was the only remedy available. He cited a June decision by an appellate court that found evidence against the Uighurs to be unreliable.

Urbina said in court that he ordered the release "because the Constitution prohibits indefinite detention without cause." He added, "The separation of powers do not trump" the prohibition against holding people indefinitely without trial.

And if you were curious how broken the Justice Department still is, wonder no more. The DoJ attorney, John O'Quinn, who had been making the argument for holding the Uighurs until the stars fell from the skies, intimated that, upon release, the US government might detain them again. In other words, having failed to produce any evidence that the Uighurs were terrorists bent on killing Americans, the Justice Department asserted that it would hold the Uighurs again because the US government accused them of belonging to a terrorist organization.

Maybe the US government is trying hard to keep the Uighurs in prison to keep Chinese leaders happy. However, I suspect that the DoJ's "assert executive fictional executive powers with maximum effort" policies, created and perfected during the Bush Administration, have as much or more to do with the continued effort to keep these 17 Uighurs in one prison or another. If you find that hard to believe, listen to this podcast before jumping to any conclusions. Ashcroft and Gonzales may be gone, but most of the people that the DoJ hired or promoted in the last several years are still there. Many are stalwart public servants with great respect for the Constitution and the laws...And some have different ideas.

You're all a bunch of posses

There's an interesting discussion of posse comitatus going on at Armchair Generalist and Lawyers, Guns, and Money. I've been chewing on the following excerpt from AG, and I just don't agree with the conclusion:

Folks, this administration is nearly over. With luck and hope, we won't see a third term of the Bush administration, and perhaps (maybe I'm being overly optimistic) the general public and the Democrats in particular will be better positioned in the future to stop egresses such as those we've seen. Let's not discount the advantages of having active duty military forces augmenting the federal, state, and local emergency responder community. Let's not view our military forces as some kind of Hollywood heavy-handed thugs - they're good people, just like us.

While I take the Constitutional concerns very seriously, there are also eminently practical reasons for keeping the US Army (and the other branches, for that matter) limited to missions outside US borders:

• Overstretching the military's capabilities. The US military has enough to do already. During the inevitable retrenching period to come, the DoD has to focus on increasing readiness and recruitment. We should be asking the military to be better prepared for its core missions, not to be responsible for more missions.
• Overstretching the military's prestige. During the last decade, many Americans have spoken about the military as if they were frighteningly omnicapable. If you want something done right--intelligence gathering, the political side of counterinsurgency, disaster relief--give it to the armed forces. Of course, the US military is extraordinarily skilled at what they do, fighting (or threatening to fight) particular kinds of conflicts. That's why the US public gives the military high marks, which may be at risk if Americans see the armed forces fumbling domestic missions for which they are not trained, equipped, or otherwise prepared.
• Continued erosion of federalism. Jason at AG thinks it's a good idea for the Army to supplement state, county, and city emergency responders. However, how many Americans even know what these lower levels of government can do? For that matter, how many Americans can name their mayor, state representatives, or district attorney? One of the themes of American politics for the next several years will be, "The federal government has its hands full, so what can the other levels of government do?"
• Confused lines of accountability. Another big theme will be accountability, for which we've all grown nostalgic in its absence. Introducing the US Army into situations for which state and local authorities should be accountable (and in operational control, in many cases) only muddies these waters further.
• The transparency of the US military. By necessity, the DoD is secretive with basic details--who's doing what, where they are, how much money is allocated to them--than their partners in domestic projects. One complaint (among many) about the Army Corps of Engineers' role before and after Katrina was the occasional lack of transparency into their organzation. How much worse will it be when you involve other parts of the military that, unlike the ACE, aren't already involved in domestic civil projects?

And, of course, there are all those Constitutional and legal problems, particularly with the weakening of privacy protections, habeas corpus, and other basic principles that Bush and Cheney attacked with a meat cleaver. It's not too hard to imagine scenarios when these concerns become all too real. Should Army units deployed to a major city during a riot have the right to indefinitely detain people? Should troops during a blackout be free to eavesdrop on cell phone conversations for any reason, such as catching looters?  And let's not forget the percentage of the US military that is now privatized: should  posse comitatus exemptions extend to them?

It's wrong to wave aside these concerns with straw man arguments about "Hollywood heavy-handed thugs." We might also look at some of the debates about regulars and militias during our country's early history as something more than quaint and antiquated. Many of the Founding Father's concerns are still valid.

Facing your own mortality

I hadn't expected to get sucked into presidential campaign politics during my first few posts. Nevertheless, here I am. Please excuse this brief indulgence.

The people who criticize McCain for being too old to run for President are only half right. Yes, he is at risk of not living through his first term, were he elected. (Or his second, for that matter.)

However, the other problem with his age is not that his mental faculties may be slipping. It's a concern if it were true, but there's a bigger potential problem.

This is the last chance for McCain to run for President. In fact, it's the last chance for him to be a major figure in American politics, if he follows his current personal trajectory to its likely destination. If he were not aggressively vying for the Oval Office, the Democrats would likely control both the executive and legislative branches. The Republicans would continue to sink--along with John McCain, for his support of the failed Bush presidency, not to mention recently throwing in his lot with the Kulturkampfers in his party.

McCain is surely aware of his own mortality, so he must know that this is his last shot at the White House. Look at his behavior in that light, and a lot of what he does might make more sense. That's not the same as saying he's justified in what he's doing lately--far from it. Other leaders have stared Death in the face, too.

When leaders cut loose

For Gaius Julius Caesar, Republican precedent was never an obstacle to his personal ambition. In 59 BC, after a bitter political battle with Cato and his allies, and a bare-knuckles political brawl over a land bill, Caesar began an unprecedented five year term as governor of Spain. Later, his famous campaign in Gaul started with a blatantly illegal action, a conflict with a Gallic tribe not under Roman rule, which violated a law that Caesar himself had authored. His most famously unprecedented action came in 49 BC, when he crossed the Rubicon, violating Roman law, custom, tradition, and core political ethos by bringing soldiers into the province of Italy. Being elected dictator for life, of course, bent Roman traditions completely out of shape, until a cabal of outraged Republicans assassinated him on the steps of the Senate.

And that's not even an exhaustive list of all the times Caesar bent or broke Roman law and tradition. He was, though, hardly unique for his time. Roman leaders had cut themselves loose from the constraints of the Roman state, leading to the epic clashes among great men (Caesar, Pompey, Crassus, Clodius, Milo, Cato, Cicero, Catiline, etc. etc.) that finally trampled the Republic into the imperial dust.

There are other times when law and tradition grow too weak to constrain the ambitions of the notable and powerful. These are never good periods in which to live. For example, the justification for Henry IV's seizure of power from Richard II was pretty threadbare. The fact that Henry re-wrote the rules of dynastic succession to his liking led to a period of political instability that didn't end until the War of the Roses.

Of course, you might be looking for a more contemporary example. Look no further than the last several years of American history. Dick Cheney becomes the first co-president. George Bush's Justice Department pushes a ludicrous "unitary executive" argument for making the President unanswerable to the other parts of the federal government. And this week, John McCain spits in the face of decades of presidential political tradition, announcing that he won't debate his Democratic opponent, nor will his laughably underqualified running mate (another precedent-breaker) debate her counterpart. And he's "suspending" his campaign, something unheard of in American politics, especially since he continued campaigning.

No, I'm not saying we're living in the last days of the American republic. However, I am saying that we should be more than worried when leaders don't feel the weight and thickness of the constraints, both formal and informal, that should bind them.

We should, as citizens, stop pretending that we have no responsibility for what happens, or lie to ourselves that we live in times so extraordinary that the rules no longer apply. These rules--durable because they work--evolved over two centuries, including foreign invasion (the War of 1812), one of the bloodiest civil wars in any country's history, global wars, recessions, depressions, and a period when an impacably hostile foe was pointing thousands of nuclear weapons at us. Even the newer traditions, such as presidential debates, deserve to be treated as sacred rites of American democracy. The rules of American politics are not conveniences, and we should be very frightened of men and women who treat them as such.

But we should do more than recoil with fear or disgust. We must act, so we don't stumble further towards the precipice. (It may be far away, but it's still there.) You're citizens of a democracy--you can figure out what to do next.

On the front lines of trivia

Proof positive that the 9/11 attacks did not change everything: this argument between a customer and a Comcast support representative over whether said customer should provide his Social Security Number to get cable service. Through the relatively insecure medium of Internet chat. Because the PATRIOT Act says so.

Election without content

You might expect that the election of 2008--seven years after the 9/11 attacks and the invasion of Afghanistan, five years after the invasion of Iraq, and 19 years after the fall of the Berlin Wall--might be a referendum on American national security in a vexing era.

The candidates get a C, or perhaps an Incomplete
Well, it is, sorta. The presidential candidates get partial credit. I don't expect someone with an eye on the Oval Office to tackle every difficult issue, especially those that the opposition might deliberately misinterpret. Therefore, don't expect to hear Obama and McCain debating over how many foreign or domestic terrorists are actually plotting to kill Americans civilians. And what's definitely off the agenda is anything like a proposal that the number is significantly less than most Americans assume it to be.

Still, I expect better from the candidates. Let's leave aside the fact that, when I go to Obama's web site (www.barackobama.com), I'm immediately re-directed to a donations page. (Note to Democrats: if you think you can compete on money alone, without mobilizing people to do other things like ensuring bigger voter turnout, prepare to get your ass handed to you.)

I'm talking about something more substantive than the set of bullet points you'll find here, in the Defense section of his platform. A lot of undecideds, independents, and Republicans might be surprised by some elements of Obama's defense policy, such as a limited ballistic missile defense. And how can I argue with rebuilding the overstrained military?

And don't get me started on McCain's issue breakdown. Iraq? Check. Homeland security? Uh, OK. National security? I kinda thought that "homeland security" was just part of national security, which in McCain speak means counterterrorism, expanding the size of the military, and modernizing its equipment. And the rest of the defense issues are nowhere to be found. Ahem. Interesting that the McCain campaign has more to say about Values with a capital V than NATO, Afghanistan, Russia, China, the horn of Africa, the G-8, counterinsurgency outside of Iraq, and Latin American combined.

The press earns an F
The limb of the body politic that seems to recoil completely from national security is the mainstream press. To measure the depth of their commentary, let's take a look at some representative topics of some recent op-ed pieces from Washington Post columnists:

• "Maliki Votes For Obama"
• "Bush's War Triple Play"
• "How Hostages, And Nations, Get Liberated"
• "Russia's Power Play"
• "The Troop Funding Trap"

Forget Kennan's long telegram. These topics are more tactical than the average Walter Lippmann column. At a time when we should be talking about US grand strategy, and the lower level strategies that flow from it, the press seems incapable of doing more than responding to today's events.

Every candidate says that big issues are at stake in every election, but in 2008, these claims have the virtue of being true. Putting the threat of terrorism into better perspective requires a much different discussion than, say, how much money should go to SOCOM in the next budget. Reviving our nation's indolent non-proliferation efforts starts with a discussion of what sort of threats biological, chemical, and nuclear technologies pose if not constrained. Building a missile defense is a second-order question.

The people who have nothing to do with their time but raise important questions instead prefer to talk about, at best, derivative questions like, "So, when are we leaving Iraq?" At worst, newspeople and the commentariat waste valuable time talking about about trivia. The real core questions, around which there is still no national consensus, receive practically no attention at all.

The grand strategy debate that isn't
Here are some examples of what real grand strategy questions look like. Feel free to throw in any you'd like to hear discussed this election season:

• How worried should we be about future 9/11-like attacks?
• To what extent does US foreign policy depend on hard power? Soft power? (I like the term "leverage" a lot better, but you get the point.
• To what extent does US national security depend on alliances?
• Should we tailor our national security policies to fit within prescribed budgetary limits, or are we willing to sacrifice more national wealth to address these concerns?

And so on. Maybe the highly-paid people in the press don't know what grand strategy is. After all, they're less concerned about the significance of Iraq than whether we win the war (or leave it). That attitude, the static-filled hiss of lesser issues, makes it hard to discern what all the noise about terrorism, Iraq, or Iran are all about. It also drowns out lots of other issues that need to be aired in a presidential election year.