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June 15, 2005

SPECTRE or Spector: You Make the Call

I know I will regret saying this later, but I don't entirely disagree with Arlen Specter (RINO - PA) regarding Gitmo. In a rambling disquisition on the remote naval base used for holding captured Al Qaida, he noted:

It may be that it's too hot to handle for Congress, may be that it's too complex to handle for Congress, or it may be that Congress wants to sit back as we customarily do. . . . But at any rate, Congress hasn't acted. . .

That's about right, IMHO.

It's great that Congress has been able to wring its hands over Abu Ghraib and Gitmo, to serve as the ethical and moral Conscience of the Nation. It's wonderful that they've been able to micromanage the bejeezus out of the so-called War on Terror.* But they haven't been nearly as effective answering the tough questions in the WOT, preferring instead to stand on the sidelines and engage in cheap moralistic posturing. Hey, it don't cost nothin', right?

But who wants to do the heavy lifting?

The fact is, the Executive Branch are the only people who have stepped up and at least tried to answer the question. They have established an administrative procedure that is probably compliant with the Geneva Conventions requirements relating to Enemy Prisoners of War. The administrative protections for battlefield-captured Al Qaida are in excess of what the Conventions require, since these combatants cannot be made to fit within the classes of persons protected by the Conventions, such as refugees or enemy prisoners of war.

Our robed masters have given it a whack too, and as usual, they missed the pinata and hit everybody standing around it instead. In an amazingly inconsistent set of opinions last Spring, they held that American citizens on American soil can be held indefinitely without trial, while foreign illegal combatants held in military custody on the soil of a sovereign nation have full access to the U.S. courts, and protections under the Bill of Rights. Um, hello? Put down the bat, Pepe, and step away.

Congress meanwhile has enjoyed the full range of scolding positions, from rage, to outrage, to pious tsk-tsking, to clucking, to saving Terry Schiavo. Let's hear from one of our great legislators, Patrick Leahy (Com - VT). He says Gitmo is:

An international embarrassment to our nation, to our ideals and remains a festering threat to our security.

Funny, that's what most people would be inclined to call Senator Leahy, if they saw his defense-related voting record. But Leahy didn't stop there. The article reports that he "Leahy questioned the administration's assertion that the prison camp was an essential part of the U.S.-led war on terror. "All of us know this war will not end in our lifetime."

Hmmmm... Have some tasty Pious Pabulum, now with 30% more scolding finger wagging. That may be one of the most sanctimonious statements about nothing that I've ever seen, coupling a non-sequitur with a suggestion that is completely insane. We're talking no-nukes movement level insanity here - along the lines of "the Soviets only have an army because we do, so we should disarm" level vaporizing. Leahy knows damn well that the bastards incarcerated at Gitmo pose a huge public danger, yet all he can do is insist that we need to do away with Gitmo.

Got the reasoning there? The problem is really hard and will last a long time. So we should act like it doesn't exist and release the bloodthirsty maniacs.

One shouldn't be surprised. The left-liberal approach to terrorism is to treat it like a crime. Yet if one remembers the left liberal approach to criminal justice, this is familiar. Left libs - the folks who brought you the canard that life in jail is worse than death - insist that a short prison sentence is appropriate for anything up to and including murder. So why am I surprised when Leahy suggests that holding these murderous thugs for two years is plenty long enough? Hell, he probably thinks two years is draconian, and what's more, the Black Robed Masters probably agree with him.

I suppose my larger point is that Congress has, yet again, punted. We ceased having any semblance of representative democracy many years ago, when Congress decided that it would rather punt tough questions to the Supreme Court, than to risk the cushy $180k per year jobs and free interns for sex that they enjoy now. Okay, fine, I'm painting them all with a single brush and I shouldn't do that, it's unfair to say that they all make $180k annually and screw interns, when in reality a few of them make a little less than $180k per year.

When Congress decided to let the Supreme Court make all the tough choices, starting in the 30's but really picking up speed in the 60s, and only now maxing out the speedo, they waived their responsibility to take care of the people's bidness. The country was originally set up so that the elected leaders would be responsible to the people. Pass a bad law, you lose next November. Fail to pass a good one, you lose. Lead us into a bad war, you lose. Fail to keep the defenses up, you lose. Abortion was a big one they punted on, gay rights is a current example where the long snapper just sent them the ball; and the regulatory state is another example. Ever looked at the statute underlying aviation security? It says FAA and TSA shall make such appropriate rules as will ensure aviation security. Sure, there are layers and layers of additional programs funded, pilot programs demanded and so forth, but the leviathan state of air travel regulation is basically a big football that Congress punted to the Executive branch because they didn't want to have to make any tough choices. After all, if you make a bad tough choice, you might get held accountable for it, and there goes the money and the strange.

As a result, the rest of the government tries to soldier on with tough problems. The Executive branch has to deal with war policy, which in Congress' estimation, near as I can tell, consists exclusively of questions involving up armored Hummers, Abu Ghraib, Gitmo, and how it would be great if they had to have a bake sale to hold a war. The doddering old fools at the Supreme Court stick their noses into the damn thing, to try to pick up the slack. They now see themselves as a super legislature. Well, that's understandable, when the other legislature is so clearly inferior. They do indeed listen to the voice of the people. The only problem is, the voices are emanating and penumbrating from the NY Times, or in Justice Stevens' case, from a can of Metamucil he's had in his chambers since 1977. Meanwhile, the Executive branch tries to cobble together some administrative rules to provide due process to the kind of guys who stab detention center guards in the eye, and who gnaw out the throats (or simply slit them) of any Americans they meet.

This mess could be straightened out pretty easily. Congress would need only to amend a portion of the Uniform Code of Military Justice (UCMJ), or other federal statute, to deal with "illegal combatants." They could direct the establishment of a military commission to adjudicate the combatant status of each detainee (already done) and also to adjudicate war crimes. Empower the panel to impose punishments commensurate with the UCMJ (or to try war criminals per the substantive criminal law of the UCMJ) and send them to prison. Then make sure there's a difference between prison and detention, establish a small appellate review board within HQ, DOD; and limit appellate jurisdiction to a single habeas petition filed in a single appellate court, preferably the DC Circuit. That's all it would take.

But no, Congress doesn't have the cojones. They are a bunch of cabrons. It's far easier to stand around posturing, to use Gitmo as a fundraising buzzword, and to feel good about themselves for how much they care about basic human rights. Much easier to do that, then to step up to solve the problem. Moreover, it's really easy for them to posture - they've punted the tough questions, and since this is going to be a long grind, an inter-generational war, they can chalk up any failures or any international embarassment to the Executive branch. You see, it's perfect. They get to score political points at no cost to themselves, and anything goes wrong (like the 500 or so Al Qaida held at Gitmo become suicide 747 hijackers) then there's a plausible out - why, Congress had nothing to do with it. They were out saving Terry Schiavo when the reaper came calling. What's not to like about that plan?

Unless you happen to be one of us ordinary folk, who expect more out of congresscritters, even in spite of their consistently disappointing behavior.

By the way, it's worth noting that elsewhere in that article, it refers to a rising tide of abuse revelations at Gitmo.

Pathetic. I guess it's true though. Repeat a lie often enough, and you'll start to believe it.

*Do you know that Homeland Security reports to 88 separate committees or subcommittees? How much work do you think their henpecked senior leadership gets done?

Posted by Blackavar at June 15, 2005 09:33 PM | TrackBack
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