Tag Archives: war

Military Tribunal or Civilian Courts for Terrorists?

By Marc Seltzer; originally published on January 6, 2009, at care2.com

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The recent decision to treat the perpetrator of the December 25, 2008, terrorist attack on a commercial airline flight as a criminal defendant, rather than as an enemy combatant, again raises questions about the use of civilian courts for terrorists.

A foreign national enemy soldier in U.S. federal court, will not, in fact, receive all the constitutional rights of U.S. citizens.  Still they will receive more substantial legal protections than likely to be provided in a military tribunal.  Why then provide all the rights and process of U.S. civilian courts, rather than simply relying on military courts and justice?

The answer relates more to the failure of the Bush administration to effectively establish and use military tribunals than to the appropriateness of federal court for terrorists.  The Bush administration created secret prisons and harsh interrogation techniques but no workable process for judging enemy prisoners.  Under the circumstances, Republican criticism of the Obama administration decision to prosecute Abdulmutallab in civilian court is hypocritical.

This case is different in key ways from the case of the five Guantánamo detainees, who will be tried in federal court.  For example, the government will seek the death penalty for the five Guantánamo detainees.  After the damage to the government’s reputation because of treatment of prisoners at Abu Ghraib, and questions about interrogation and legal authority for detention without trial at Guantánamo, the execution of these detainees without a traditional civilian trial would have aroused international outrage and significant domestic criticism.

However, the December 25th attempt to destroy a plane as it descended towards Detroit failed, and no injuries resulted.  Thus, the government will likely seek incarceration, not the death penalty.  Moreover, Defendant Abdulmutallab has not been interrogated using enhanced techniques and his detention will be at the hands of the Obama administration, which has disallowed torture.  Therefore, there is not the same need to demonstrate the legitimacy of the process as there was with the Gauntanamo detainees.

The Bush administration proposed to deal with detainees outside of the civilian legal process, but parts of its plans were rejected by Congress and the courts.   After scandals at Abu Ghraib and questions about the administration’s treatment of prisoners and judgment in reviewing detainee cases without judicial oversight, the Bush administration lost some credibility in its role as authority over detainees.  This also cost the executive branch authority to use what should have been an ordinary process in time of war, the military tribunal.

The Obama administration has asserted that it will use tribunals in some cases.  For example, where evidence against a detainee is not sufficient to achieve a conviction in a civilian court, the administration will still seek to incarcerate people it believes are a threat, using a military tribunal.  Similarly, if a large number of foreign soldiers needed to be tried, it would overwhelm a civilian court, but be easily accommodated in the more flexible rules of a tribunal.

It makes no sense to try every enemy soldier in a civilian court. But the Obama administration will have to pick up where the Bush administration failed.  It will have to demonstrate to Congress and the courts that it can conduct military tribunals with the right mix of prosecutorial judgment and judicial process.

For now, the December 25, bomb attempt left an obvious trail of evidence and only one defendant.  This is an easy case for a federal court to handle.  Moreover, the defendant started providing information to the law enforcement officials immediately upon his arrest.  CIA or military intelligence officials could have been called in, but the defendant cooperated and provided detail immediately, according to the administration.  Under these circumstances, the administration’s decision to prosecute Abdulmutallab in civilian court was sound, although the greater challenge will come as the administration tries to prosecute some of the remaining Guantánamo detainees in military courts.

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January 6th, 2009, UPDATE:  In depth discussions on foreign policy and detentions on C-Span; President Obama discussing security issues.

President Obama, is Afghanistan more like Vietnam or Germany?

By Marc Seltzer; originally published on November 30, 2009, at care2.com

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When President Barack Obama addresses the nation on Tuesday evening, December 1, from the U.S. Military Academy at West Point, I will be looking for the President to answer specific questions I have about the United States’ conduct of the war in Afghanistan.

I would like to hear Mr. Obama state clearly the current objective.  Is it to build a modern nation in Afghanistan, create a quasi-democratic state, or simply stand a government that can police its own population and take actions that support U.S. security objectives?  Eighty percent of Afghanistan’s population live in 32,000 rural villages. Economic and political life is different there than in modern societies, and I want to see that the President’s plan does not rest on unrealistic expectations and assumptions.

President Bush’s military mission in Afghanistan was to remove the Taliban from power and stop Al Qaeda and its associates from conducting violent action against the United States.  The initial invasion succeeded in ending the Taliban national government, and the ongoing campaign has forced Al Qaeda to seek more hospitable territory elsewhere.  However, installing a democratic government with control of the entire country has proved impossible, and in the face of such difficulty, the mission has become less clear.

The most important issue in the war in Afghanistan may be its impact on Pakistan.  If any nation could be the catalyst for a WWIII scenario it is a nation with a nuclear arsenal and a violent extremist insurgency.  Pakistani Taliban and other insurgents are actively fighting against the democratic government of Pakistan and lethal bombings of civilian and military targets are becoming daily occurrences.  An all-out civil war in Pakistan would be catastrophic and could require international forces to secure nuclear weapons, at the very least.  If this is part of the calculation of continuing our military effort in neighboring Afghanistan, Mr. Obama should say so. The Bush administration played fast-and-lose with the reasoning behind the invasion of Iraq, and confidence in American credibility suffered as a result.

And then there’s the Vietnam question.  Are we even capable of defeating the Taliban?

In Vietnam, we were unwilling to risk a direct military confrontation with the Soviet Union and China, and yet could not defeat the North Vietnamese people without risking such an all-out superpower war.  Thus, we were in an unwinnable war with no good diplomatic solutions.

While there is no superpower behind insurgent forces in Afghanistan, there is significant support in the population and financial backing from abroad.  We have been fighting insurgents for eight years and are no closer to victory.

It is a combination of troop strength and strategy that will make or break the U.S. effort in Afghanistan.  Not just critics of the war, but top military brass, have said that a political solution is ultimately necessary.  In Iraq, an important part of the “surge” strategy was hiring the unemployed former army members and others who were fighting against us.  The concurrent increase in U.S. troops also supported government and military efforts to control violence, but the change in strategy was key. A similar initiative to pay local Talibs to switch sides is now underway in Afghanistan.

If the new strategy for Afghanistan is not producing positive results in a year or two, will the President accept defeat and withdraw our resources?  There is evidence that President Lyndon Johnson did not want to be involved in the Vietnam war and did not think it was winnable.  Yet, he continued to increase American participation based on domestic political consequences and complex international uncertainties.  However, our resources are precious and should be used with serious intentions, not squandered, or commited by default.

Will there be an honest assessment as to whether the new strategy in Afghanistan is working?  Does the President have the courage to recognize and accept failure?  It was one thing to refuse to accept defeat in a WWII.  The war against Germany and Japan saw a far greater commitment of resources and manpower.  Our entire nation was transformed into an armament factory and the committment to destroy the enemy and remake its society was total.  On the military front, we used all the force we had and accepted both our own heavy losses and devastating destruction of German and Japanese civilian targets.  Total victory was necessary and total defeat was not an option.  However, the situation in Afghanistan is not a world war.  Failure of a operation does not mean the surrender of all objectives.  Only fourteen years after South Vietnam fell to the Communist North, the Berlin Wall came down and international communism was on its way out.  (If you still have an image of Communism guiding China and Vietnam today, travel there and test your ideas.  Both nations provide thriving business environments and gradual reforms).

The lesson here is that we should not follow a failing strategy for long.  The risk of failure is substantial, and the President and his military command must be able to evaluate and change course, as necessary, including abandoning losing causes.

I will listen with an open mind to the President’s reasoning on Afghanistan.  What I hope to hear is not so much an answer that fits my preconceived notions, but an explanation of the U.S. mission there and a realistic assessment of strategy designed to achieve our goals.

For an Afghan voice and perspective (although somewhat dated), see my Interview with Massoud Quiam and Commentary by Massoud Quiam.

December 2, 2009 Update: C-Span 3 is covering live Congressional testimony of Defense Secretary Gates and Admiral Mullen on Afghanistan.

Point of contention is whether it makes sense to ramp up the battle now, while at the same time saying that we intend to start transferring responsibility for security to the Afghan authorities by mid 2011.  Is this just the usual attack on the President, or is there a contradition here?  Can we say that we are only willing to spend so much time and money (and risk to our troops) and that that time is running out — a limmited commitment — without hurting our chances of success?  It is a legitimate question, but the benefits of such a policy may still outweigh the costs.

Have the Military Responses to 9/11 Been Equal to their Costs?

By Marc Seltzer; originally published on September 11, 2009, at care2.com

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Reflecting on 9/11 includes thinking about eight years of foreign policy. What concerns me is the massive commitment we have made in two foreign wars and the uncertain accomplishments we have to show for it.

In Afghanistan and then Iraq we invested tremendous human and economic resources.  We may in the long run succeed in giving Iraq the opportunity to create a functioning democracy, but the cost was high.

In Afghanistan, it is still not clear that a positive outcome can be achieved, although the committment of sufficient resources may also bring results that were not possible previously.

During President Ronald Reagan’s eight years in office, he responded to various threats without engaging in a substantial ground war.  When he chose to react with force to Libyan terrorism, he bombed Moamar Gadaffi’s compound.  Gadaffi survived, although immediate family members were killed in the attack.  One military act, with small risk to our forces and cost to our economy, backed up by economic sanctions.  We did not attempt to replace a regime or transform a society.

Since then, Gadaffi has renounced terrorism and sought to comply with international norms. Gradually, sanctions have been removed and Libya has begun its return to the community of nations.

President Reagan did commit tremendous national resources to oppose the Soviet Union, the major Cold War threat.  But despite “Star Wars’” failings, the U.S. investment in missile-shield technology fostered American economic and technological superiority, which ultimately forced the Soviet Union to change.  Not all former soviet states are success stories today, but many are, and the 30-year threat of nuclear war subsided.

Since 9/11, the loudest complaints about our use of force have been over justification for our invasion of Iraq.  Those who believe that military action wasappropriate focus on security to be gained from defeating the enemy and establishing stable government.  What about the security to be lost, if we demonstrate that we are unable to accomplish our mission or unwilling to face new threats (Iranian and North Korean nuclear programs), because we have already given too much?

Our military proves itself every day in discipline, bravery, organization and tactics.  But do our political leaders have the strategic wisdom to use force so that we achieve the most for the least expenditure of precious resources?