A quick review of how Bush-Cheney got off on the wrong foot, thinking that sooo much more was needed to bring al-qa'ida to heel, from a British perspective, is tucked in to the comments at JB's blogologalog.
Right now we are engaged in understanding just how charitable it is to sweep all the impact under the rubric 'misjudgments'.
On point and why it was so critical that Bush-Cheney convince everyone about "war" - they needed it to do what they wanted, not the other way around:
(i) The "global war on terror" is a juridical nonsense. There can be war (declared or not) against defined sovereign states. There can be "punitive expeditions" to subdue lawlessness in places where there is no effective government.
The question whether a particular war or punitive expedition is lawful or otherwise is non justiciable - it is a matter on which the judicial branch defers to the executive and the democratically elected parliament.
But the executive cannot cannot escape the consequences of otherwise unlawful conduct by declaring the existence of a conflict which is unknown to the law.
The question whether a particular war or punitive expedition is lawful or otherwise is non justiciable - it is a matter on which the judicial branch defers to the executive and the democratically elected parliament.
But the executive cannot cannot escape the consequences of otherwise unlawful conduct by declaring the existence of a conflict which is unknown to the law.
From "murad":
"In the immediate aftermath of 9-11 the Bush Administration made a series of fundamental misjudgments:
(i) it was decided that foreigners who come to attack the USA within its borders and those who stand behind them were more than criminals. In the belief that the perpetrators would have no rights whatsoever it as decided that the once the President declared war on them, he could do with them what he wished;
(ii) it was considered that the President's war powers would even sanction indefinite detention of US citizens arrested within the USA and they would not have access to the Courts;
(iii) it was considered that as long as prisoners were kept outside the territorial jurisdiction of the US Courts there would be no relief which the US Courts could grant to any detainee;
(iv) it was felt that international treaties did not matter and all that the President needed to do was to to declare that the protections of those treaties did not apply.
In very great measure, matters have been exacerbated by the way the Federal Courts have approached these questions. Issues which in our judicial system would have taken months to go from first instance ex parte application to final consideration by the House of Lords have in your courts taken years to be resolved - and due to the reluctance of the courts to grapple with the real issues - some quite fundamental issues remain unresolved to this day.
By way of example, the US Courts have thus far ducked the question whether it is legally possible to have a "global war on terror" against a non sovereign entity which is unlimited in time, or territorial extent, or as to the persons who can be deemed combatants.
That Orwellian concept enabled the Bush Administration to claim that it was entitled to detain individuals in various countries in breach of local law (for example in Italy, Bosnia, the Gambia and Pakistan) take them to its own facilities and subject them to torture or at least inhuman and degrading treatment.
Then there was the attempt to avoid intervention by the Courts by reliance on the "legal black hole" theory for Guantanamo Bay.
Then there was the determination that the protections of the common article 3 provisions of the Geneva Conventions did not apply to detainees.
I do not think those issues would have troubled the UK Courts at all:
(i) The "global war on terror" is a juridical nonsense. There can be war (declared or not) against defined sovereign states. There can be "punitive expeditions" to subdue lawlessness in places where there is no effective government.
The question whether a particular war or punitive expedition is lawful or otherwise is non justiciable - it is a matter on which the judicial branch defers to the executive and the democratically elected parliament.
But the executive cannot cannot escape the consequences of otherwise unlawful conduct by declaring the existence of a conflict which is unknown to the law.
(ii) For UK officials to detain a person apprehended outside the jurisdiction in circumstances which are in breach of the law of the place of detention or to conspire with officials of a foreign government officials to bring a person into the custody of the UK in breach of the law of the place of apprehension makes the detention of that person unlawful and to prosecute a person within the jurisdiction when his presence is the result of such unlawful acts overseas is an abuse of the process of the Court.
(iii) The "in personam" jurisdiction of the Court over the executive permits the court to grant the remedy of habeas corpus no matter where the detainee is held since the presence within the jurisdiction of a person with power to order release is sufficient - particularly where there is no other court able to exercise control;
(iv) The power of the Crown to dispense from the due application of law was claimed by the Stuart monarchs but was no longer part of our law from the time of the Glorious Revolution of 1688 (and, as an aside, I do not think it is a power of the President under the US Constitution), therefore any decision by a UK official to declare the Geneva Conventions inapplicable to detainees would have been amenable to judicial review and liable to be quashed - a declaration as to rights would have been made and, if that were not observed, a mandamus could go to compel the executive to comply.
I think we have to accept that there is quite a body of public opinion in the USA which believes that US citizens ought to be especially privileged before the law and that foreigners, particularly non-resident foreigners, have no rights.
There are also those who believe that the Executive ought to be given unlimited latitude to detain, and to subject non citizen detainees to inhuman and degrading treatment, if the consequence of those acts is to make citizens safer.
For example, a previous contributer asserts above:-
"I would estimate at least 10,000 dead (maybe much more) if we had simply sat back and allowed a Third, Fourth, and even Fifth Wave of attacks by now. Regardless, IF there's another 9/11 attack now -- after Obama has made such a public show about "NOT doing everything to defend the American people" -- then said people will know exactly who to blame. I hope you will be proud of yourself too."and another asserts:-
Coercive interrogation works for intelligence gathering because you can verify the facts given by the prisoner and thus discount the almost inevitable lies given intentionally or to get the coercion to stop. However, because coercive interrogation will inevitably result in false confessions, this is not a legitimate method to gain admissions which form the basis of a criminal conviction. Thus, upon the capture of a high value target, the President is almost always presented with the choice of using non-coercive interrogation to gain admissible criminal evidence at the cost to gaining timely and actionable intelligence that may save lives or using coercive interrogation to gain intelligence at the cost of gaining evidence for a criminal conviction."
Those are attitudes prevalent in Tudor England and Jesuits were certainly tortured in the reign of Elizabeth I. But I am not unhappy that our understanding has moved on since then.
There is no doubt that, faced with the existence of a terrorist threat, prior to 9-11, it was assumed that the continental United States was safe because sheltered behind its two shining seas. Steps were taken to improve security of US citizens overseas - for example by putting in place security at embassy buildings, the issue of travel advice and the like. But nobody thought of the ease with which a commercial airliner could be turned into a guided missile and there was no real security in that regard.
I remember flying on commercial flights in the USA and being horrified to see that pilots habitually flew their aircraft with the door between cockpit and passenger cabin open. That lesson has been learned. Measures to prevent the same thing happening again have been taken. So there ought to be no repetition of 9-11.
That is not to say that no other terrorist atrocity can happen - whether or domestic or foreign origin
But no government can ever assure 100% safety to all its citizens. Were it to be required to do so, the individual right to bear arms would certainly have to go by the board. It might also be necessary to install devices to prevent any motor vehicle ever being driven by a drunk driver. There is always a trade off between liberty and public safety.
Here in the UK, we are now probably the most surveilled society in the world. If I travel from my local Tube Station to go shopping in the West End, I know that I am under continuous camera surveillance from the moment I enter the Underground Station, all along Oxford Street and back to my return to my local station. When I get back, I may have to go through metal detectors to ensure that I am not carrying a knife - or worse.
These security measures do to some extent affront my sense of individual liberty, but I accept that they effectively deter many assaults and other criminal offences or if deterrence fails, enable the apprehension and conviction of the criminals- which at least gets them off the streets. The same has been true for those who attempted recent terrorist attacks. They were tracked on camera the length of the country.
Deterrence means I am still safe to go out largely without fear knowing that my police force can maintain law and order without a whole load of armed cowboys putting me at risk.
I know that I cannot lawfully purchase many kinds of fire-arms. I am pleased that is so. It makes it much less likely that I will be shot. I am told that in some US hospitals, the commonest complication of pregnancy is gunshot wounds and I remember that in Texas I saw quite a few signs on my hosts' house announcing that "solicitors will be shot" - I did not know until then that distaste for lawyers went quite that far.
I suggest that the US Federal Government can no more purport to assure its citizens 100% security against armed terrorists who are prepared to die in the course of their attacks than it can assure every parent that their children will not be shot by some armed lunatic at their local high school.
All risks can be minimised by various measures - but torture and inhuman and degrading treatment of captives actually increases the risk of attacks since it enables the recruitment and motivation of yet more individuals to the terrorist cause.
So to me that argument that "torture works" has no validity. Nor does the lesser argument for other forms of inhuman and degrading treatment. We have to demonstrate that our human rights values are not so fissiparous as that. Certainly we must obtain intelligence, and confessions, and take reasonable precautions. We must seek to prosecute and deter terrorists just as we do with any other serious criminal activity. But we don't cross certain lines.
Otherwise, we might as well have welcomed Herr Hitler with open arms and avoided all the bombing of London and our other cities. But the price we would have paid would have been far greater in the long run."
