Essays

Defeating Asymmetrical Warfare

Palmer Hasty

In February of this year (2007) the D.C. Circuit Court of Appeals ruled 2-1 that detainees at Guantanamo Bay could not challenge their imprisonment in the U.S. court system. It is no surprise that the dissenting judge was a Clinton appointee.

Lawyers for the detainees immediately said they would appeal that decision to the Supreme Court.
The press also reported that liberals in the new Democrat controlled Congress, were simultaneously trying to reinstate the detainees' "constitutional rights" via legislation.

Two months later on April 3, it was reported that the Supreme Court, in a 6-3 decision, declined to hear the detainees' habeas corpus case.
This was a good decision regardless, as well as being accompanied with sound judicial reasoning.

I have believed from the beginning of the war on terror that the "enemy combatants" efforts to obtain trials within our civil court system to be a form of asymmetrical warfare and equally important, that the Executive Branch was correct, as per its Constitutional Authority, in concluding that the "courts" did not have jurisdiction in the detaining of enemy combatants.

In a 2006 speech British Defense Minister John Reid wisely said that the Geneva Conventions should be revisited regarding the conduct of war. Reid wanted to incorporate the modern reality of terrorism into a revision of the Conventions.
"If we do not, we risk continuing to fight a 21st century conflict with 20th century rules. Warfare continues to evolve, and, in its moral dimensions, we have now to cope with a deliberate regression toward barbaric terrorism by our opponents."

I cannot comprehend the reasoning that would allow this so-called legal, or fabricated constitutional rights confrontation with enemy combatant detainees during a war to reach the Supreme Court in the first place.

Understanding, or recognizing how terrorists and the al Qaeda leadership use the American media establishment and liberals in Congress to help them fight their jihad against modern civilization is not an intellectual exercise in a debate between conservative and liberal views. This understanding and the intelligence to create strategy based on that understanding is a vital weapon that needs to be implemented to effectively fight the asymmetrical warfare of the 21st century.

Senator Patrick Leahy, an ultra-liberal Democrat and now chairman of the Senate Judiciary Committee, is a predictable and monumental disappointment. The Senator has vowed to work with other liberals in congress to craft legislation intended to reinstate enemy combatants "constitutional rights" to file habeas corpus in our civil court system.

As the real-time progression of events has finally evolved into a provident and we hope, final resolution regarding this issue, it is difficult to see, at any point in the chronology of this issue, where the enemy combatants would have "constitutional rights" that preempt the decision making power provided in the Constitution to the President of the United States as Commander-In-Chief of the Armed Forces, under which jurisdiction the Founding Fathers obviously intended an enemy combatant to be confined in time of war.

How clear is that?

The liberal wing of the high court was subconsciously determined to challenge the Executive Branch on this issue.
We believe that this determination was based more on the habit of subconscious reactions to a political climate (and therefore shortsighted) than it was based on an in-depth look at history and reality of the judicial perspective.

They reasoned along with the detainees and the detainee lawyers that the Geneva Conventions were being violated, and apparently based that perspective on a legalistic, nebulous and subjective debate regarding who maintains "sovereignty" over Guantanamo Bay, Cuba.

As per the conditions of the original treaty, which has never been withdrawn from by both parties and whether one likes that reality or not, Cuba maintains sovereignty.
It is as predictable as it is mind boggling that the liberals on the Supreme Court would use the non-productive bickering, even recognized as such by Castro, as an excuse to handcuff the Executive Branch in time of war.

How liberals on the high court reasoned and rationalized their decision to over turn the D.C. Appeals Court ruling in 2004 that refused Gitmo detainees access to our civil courts with the statement "a state of war does not give the President a blank check" is sophomoric and suspiciously political.

If Congress had not eventually intervened and provided the President with additional authority via a second branch of government to order the Defense Department to establish military tribunals, for example, Mr. Hamdan would now be allowed to use our civil court system to parade himself, and his "predicament" as his liberal sympathizers call it, before the American public where it is guaranteed the media coverage of the trial would make Mr. Hamdan more of a celebrity than a terrorist.

Perhaps as early as ten years from now it is possible that historians who are smart enough to see it, will point out that the modern liberal mind, so infatuated with its mirror sleek, self-destructive media driven communication skills, was tragically unable to distinguish between a mirror and a window.

Some of the detainee lawyers have complained that the military tribunal procedures that Congress authorized the President to implement earlier this year are essentially the same as the tribunal procedures the President took the initiative to order via his powers as Commander-in-Chief several years ago prior to the Supreme Court intrusion, just reinforces the point we are trying to make in this essay. *

Essentially, Senator Leahy and other liberals in Congress are now the only recourse left for the terrorists detained at Guatanamo Bay to be characterized and championed in the media as "victims" of something.

And although he will make noise and draw some hollow attention to himself, we do not believe that Senator Leahy and the detainee lawyers will get anywhere with such a clearly deceitful anti-American legislative mission.

The Senator's public rationale, which echoes the new interest in "international views" of liberals on the high court like so many mirrors in the clouds, is that providing enemy combatants access to our civil court system will somehow help restore America's image in the world.

I believe the truth to be precisely the opposite.
I believe that if Leahy and the liberals got their way on this issue, America would be seen as a country that did not have the wisdom, the foresight nor the perseverance to constructively manage and implement the intent of its own Constitution.

Considering what Hamdan has confessed to means that a civil court trial would have produced a fantastic, typical circus-like media driven waste of time and money.
And keep in mind at all times, media reports have revealed Hamdan's lawyers claim their client would not be allowed to "take the oath" in a court of law because of his religion.

I suppose we are to presume that means the public and eventually a "jury" and a judge would have to believe his lawyer, who would under those circumstances be forced to reassure us that Mr. Hamdan was telling the truth.

That does not reassure me; what about you?

The detainee lawyers and several liberal thinkers on the Supreme Court might not like to see it (astoundingly enough they still might not see it today); yet the only purpose a civil trial for Hamden could serve would be to provide the terrorist with an adjunct stage the media would be unable to refrain from providing, whereon to display what he would perceive as a psychological victory by just being allowed to argue his case for as long as he could, that is, continue fighting civilization.

When an enemy, whose religion also promotes indiscriminately slaughtering innocent people (especially women and children); and when an enemy who decapitates their "detainees" in public or leaves the mutilated bodies of captives floating in rivers; or an enemy who can fool Americans via their elected officials and communication outlets to believe that tough leadership should feel guilty when they fight the war with everything they've got, or that it was a mistake to rise to the challenge in the first place, then that enemy has succeeded in one of the primary tactics of asymmetrical warfare in the 21st century.

Winston Churchill once said: "The empires of the future will be the empires of the mind."

In his original dissent, Justice Scalia wrote: "…the majority ignored the Eisentrager * precedent and confused the military as to what was the controlling law."

As Scalia implies; it probably would have been much wiser for a multitude of reasons if the high court had simply concurred with the precedent, and left the issue alone. In deciding to ignore the precedent in this case, and considering the circumstances, the high court made what definitely appears to be a mistake in placing itself in the middle of a real-time war scenario.

Considering the controversial, and virtually un-resolvable nature of the Cuban-American Treaty, which appears to be the item used by the liberal mind to trigger and justify the high court's intervention, one can see the wisdom in Scalia's remark.

Once again, liberals on the high court created an irrelevant and disjointed connection, wherefrom to rhetorically support a perspective that would inform the counterproductive decision in a situation that did not really need or warrant their intervention in the first place.

As pointed out above, the original Cuban-American Treaty simply says that both parties have to agree to a termination of the treaty before it can be terminated, period. The fact that the United States has never agreed as the second party to terminate the treaty, and the fact that liberals on the Supreme Court may consciously or subconsciously take sides in that particular confrontation, does not change the needed judicial wisdom that should have been transferred from the Eisentrager decision.

You should have the point now, but to give you a more circumspect picture of the problems the majority originally created via the court's intervention.

Hamdan and his lawyers filed their petition for the writ of habeas corpus based on three points. 1. The commission's procedures improperly deviated from the Uniform Code of Military Justice. 2. He also claimed mistakenly that "conspiracy" had never been accepted as a war crime. And 3. That the Commission's exclusion of defendants from the courtroom during certain parts of the trial made the process fundamentally unfair and violated the Geneva Conventions in that he could not be sentenced except by a "regularly constituted tribunal."

In what was at the time the minority dissent, Justices Scalia, Thomas, and Alito countered all three claims, each with valid legal reasons.

In that Supreme episode, Justice Alito's dissent, viewed from higher intellectual ground than liberals know how to climb, warrants special notice because it represents what I believe would be the modern day equivalent to how the Founding Fathers would view this issue, and it reflects what is prescribed in the constitution while at the same time, precisely which constitutional "intent" should inform the ultimate decision on this issue.

Justice Alito ruled that the military commissions were implicitly authorized via congressional approval in the first place, by the original Authorization for Use of Military Force Act and what the Commander in chief ordered were therefore "regularly constituted tribunals" as required by the Geneva Conventions.

To make one last point here. Back in 2003 when the high court decided to review a lower court's initial refusal to hear detainee claims, The New York Times, on its dubiously editorialized "Freedom of Information Center" web page, childishly characterized this decision as a "vindication." The liberal newspaper said: "...the administration boldly asserted that the courts had no right to review them" (the detainee complaints). Now is the time to say clearly that the court, not the President, has the final word on what the Constitution permits."

That is a deceptive and gross misrepresentation of the issue. On this issue, the Constitution itself, not the court, as Justice Alito was trying to tell everyone, already had the final word on what the document permits.

To put it another way, as Scalia wisely suggested; in trying to intellectually justify a legalistic micromanagement of so many elements of the war on terror in the civil court system, the lawyers, the media, and the liberals on the high court were basically just confusing everyone but the enemy.

As Jan LaRue, Chief Council for Concerned Women for America has said: A major factor in winning this war on terror requires confirming judges that won't wrap the constitution around foreign enemies who intend to bury it with us.

Notes

In the future we may comment on this issue separately on the Blogs page or The Right Parallels pages.

* Combatant Status Review Tribunals CSRT. To reveal further what I believe is a juvenile distrust of the military (especially in time of war), as well as what appears to be the liberal judges juvenile competitiveness with the Executive Branch in this case, below I quote from the Combatant Status Review Tribunals (CSRT). Under the circumstances of war, it is a very practical and fair procedure. Extremely fair when you compare it to the way our enemies treat their captives or detainees. My point is that there is really no comparison. Our enemies' so-called rules of treatment are based on the most shocking and fear producing psychological impact they can produce in front of the almighty camera. When a liberal, in trying to locate venues to substantiate and portray the American military as immoral in reference to enemy containment during war, says that just because our enemies have no code of conduct doesn't mean that America has to do the same, then you are listening to someone who is, inadvertently or not, fundamentally blind to the reality of asymmetrical warfare. One would expect even the liberal members of the high court to be able to at least see the way the conservatives did in this case, the danger in a perspective influenced more by political climate than judicial review.
CSRT: "Any detainee who is determined not to be an enemy combatant will be transferred to their country of citizenship or other disposition consistent with domestic and international obligations and U.S. Foreign Policy…The Tribunals are administrative rather than adversarial, but each detainee has an opportunity to present "reasonably available" evidence and witnesses to a panel of three commissioned officers to try to demonstrate that the detainee does not meet the criteria to be designated an "enemy combatant."
* The Eisentrager Case. In 1950, the U.S. Supreme Court decided the case Johnson v. Eisentrager. In that case, the Court ruled that Nazi war criminals who were captured in China, tried by a U.S. military commission, and sentenced to prison terms in Germany were not entitled to habeas corpus relief in a federal court. The Court's reasoning was that the jurisdiction of federal courts does not extend to members of foreign countries who are tried, convicted, and sent to prison abroad. Source: U.S. Courts Educational Outreach.

This essay is a LightBookproductionsTEXT May 28, 2007
Some of this commentary first appeared in Blog format at
LightBookproductions.com The Right Parallels National Security page in March of 2007.