Who can we trust to defend our liberty? Will our culture’s rot spread to the military?

Summary: Many of the articles on this website discuss the protection of our freedoms. More specifically, the unwarranted confidence that we place in our institutions. Is this rot spreading to our armed forces, as centuries-old laws of war are thrown away?

Introduction

The Constitution is just parchment, alive only to the extent it lives in our hearts. It’s dead (see these posts for details). Many conservatives love a few scraps of its corpse, unaware and uncaring about its whole (indeed eager to see the rest eaten by coyotes).
No surprise, our lawyers take both sides in the erosion of our freedom (it’s just more employment). Attorneys at the Office of Legal Counsel devised ingenious defenses for a massive expansion of government power, shredding much of what remained of the Constitution.
Our police and esp. security services have always shown more interest in order than law. Perhaps that’s inevitable. Nevertheless, many have renewed their love of planted evidence (the sudden discover of an ounce on the floor), illegal entry (almost standard practice for many SWAT units serving warrants), and illegal surveillance. Reason magazine has documented the nefarious activity of SWAT teams; the activities of the Federal agents is too well-known by now to need elaboration.
Perhaps organizations like the Oath Keepers will counter-act this trend. But their resemblance is more to an embryonic Freikorps (Wikipedia; see this post for details pro and con).

Now the corruption spreads to our armed forces, as they abandon the centuries-long development of laws for conducting war, putting torture and assassination in the rulebook. Migration of these tools from the secret services (foreign and domestic) to the military is an ominous development. We see this development in its early stages in these two articles by military lawyers in the 1st quarter 2008 issue of Joint Forces Quarterly. The passing of two years allows us to see the growth of these dark weeds. The next phase to watch for: their spread to the domestic security services — another step in their increasingly militarization.

(1) “Habeas Corpus and the Detention of Enemy Combatants in the War on Terror“, James P. Terry (Colonel, USMC, retired; former Legal Counsel to the JCS)

This is a brief of his thesis at the Army War College. He starts with one of the big lies that support our new wars, which has become the most-often used false fact in discussions of enemy detainees:

Recognizing this threat and moving to preclude further attacks on our homeland, U.S. forces have captured enemy combatants and terrorists on battlefields in Africa and Europe, as well as in Afghanistan, Iraq, and Southwest Asia. Patterning its actions on past conflicts, the United States has determined it is necessary to detain these combatants until the conclusion of hostilities, if only to preclude their return to the battlefield.

Many (probably most) of these were not captured on any battlefield. But Terry is no frothing neo-con, for whom true and false means nothing. I suspect he honestly calls things as he sees them. As much of our military leadership see things. They see that the world — eventually including everybody’s homes — has become America’s battlefield. It’s a terrifying expansion of the military’s reach, one that I suspect we’ll come to regret.

Which is worse for us, the lie or sincere belief? Either way, this transforms the enemy combatants in prison into the enemy, without any need to establish their guilt. It’s the foundation belief of all tyrannical governments — now infecting America — that anyone they consider guilty is guilty — and any efforts to prove otherwise are treasonous (shared today by prominent conservatives, such as Liz Cheney; see this Harper’s article for details). Terry compares them to the German saboteurs of Operation Pastorius (1942; Wikipedia), caught in the US and convicted by a military tribunal on the basis of ample evidence.

This lays the foundation for his main thesis about the legal basis by which the military holds and tries enemy combatants. I’ll leave analysis of that to attorneys; it’s above my pay grade.

(2) “Role of Targeted Killing in the Campaign against Terror“, Peter M. Cullen (Colonel, US Army, Staff Judge Advocate of the 101st Airborne Division)

This is a brilliant — and IMO convincing — analysis of why “targeted killing” off the battlefield (in the narrow sense, not battlefield = Earth) is not assassination, why it is legal under both US and international law, and that it is effective. The author seems unaware that he’s drastically narrowed the definition of terrorism. Al Qaeda and our enemies now have a large range of strikes they can do against us, against which we can make no complaint.

To anyone believing that the moral high ground is often decisive in war, this means surrendering our most powerful weapon. Only time will tell who is right. Perhaps it depends on the severity of the threat al Qaeda and its cousins pose to us. For those who share my belief they pose no severe threat to our nation, this is a major strategic mistake.

For a discussion of the threat see these posts:

Can we defeat our almost imaginary enemies?, 10 December 2009
Are islamic extremists like the anarchists?, 14 December 2009

(3) “Rendition: The Beast and the Man”, Kevin M. Cieply (Colonel, Army National Guard), winner of JFQ’s Kiley Award for Best Forum Article (available here or perhaps here)

Cieply provides an ingenious way station along the road to our new way of war. While his effort is a good sign, I doubt we’ll adopt his recommendation.

In the meantime, perhaps there is a middle ground. By maintaining the practice of immediate capture, tempered by subsequent measures of transparency and due process, the United States can preserve one of the main utilities of rendition while at the same time bringing it toward the fold of universally accepted moral behavior. Transparency would allow the world to verify that this nation abides by the rule of law even when it admits that our “alternative set of procedures” or “tough” methods were used. Due process would establish that individuals are treated humanely. This is to say that the sine qua non of humane treatment is due process.26 This may place a “serious limitation” on the United States, but some aspects of rendition need to be “simply not our dish,” even as other aspects are necessary.

(4) For more information

To see more legal analysis about this, I recommend articles with the assassination tag at Opinio Juris.

(a) Posts about torture

Behind the debate about rendition and our military prisons is the ugly facts about what happens in this. Torture.