Boston and the Dangerous Calls for “Enemy Combatant” Status

(Published in the Huffington Post,  Apr. 30, 2013, and The Truman Doctrine blog, Apr. 30, 2013)

The Obama Administration announced last week that it would prosecute Boston bomber Dzhokhar Tsarnaev in the Federal criminal justice system. This should have been unremarkable, but it came amidst a cacophony of voices demanding that Tzarnaev be classified and treated as an “enemy combatant.” There were calls to similarly classify the Christmas day bomber, the Times Square bomber, and several other terrorist suspects captured in the United States. Such claims have no legal validity, and are indeed dangerous.

The calls for “enemy combatant” status not only came from various so-called pundits on Fox News and the like, but also from more serious quarters. Senator Lindsey Graham criticized the administration, arguing that Tsarnaev should be classified as an “enemy combatant” under the law of armed conflict for the purposes of extracting intelligence.

Alberto Gonzales, former White House in the Bush administration stated in an interview last week that “nothing prevents the President from deciding: ‘This isn’t working, it’s not going the way we hoped it would go, so I’m pulling him out of the criminal justice system and I’m designating him an enemy combatant.'” … Read more…

On the Anniversary of the Iraq Invasion

(Published in the Truman Doctrine Blog, part of a series of 250 word entries on how the Iraq War shaped one’s life and ideas)

Back in 1990, in the run-up to the Gulf War, I was a naval officer, and like most of the world, supported the need to use military force. As a student of history, I understood that force is sometimes necessary in the face of aggression.

By 2003, I was a lawyer, and like much of the rest of the world, I viewed the invasion of Iraq as unnecessary, unwise, and unlawful. The Bush administration’s rationales shifted from “preventative” self-defense against Iraq’s WMD, to resurrection of the U.N.’s authorization to use force in the Gulf War, to claims of links to Al Qaeda and 9/11. In the absence of WMD, the government even stooped to advancing human rights justifications for the attack. None were valid.

I was not directly affected by the war, but I was increasingly disturbed by the developments in Iraq, and the so-called “global war on terror” to which it was inextricably linked. The hundreds of thousands of civilian dead, Guantanamo Bay, Abu-Grahib, the torture memos, targeted killing – and all distorting the law and eroding the rule of law, at home and in the international system.

These contributed to my decision to leave practice and head back to school to research the legal constraints on the use of military force. I became a law professor. So in this way I suppose the war helped shape my life’s path. And I strive for a time when such unjust wars will be more difficult for democratic governments to wage.

The Fallacies of the Torture Debate

(Published in The Huffington Post, May 19, 2011)

The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

Read more…

Japan is Failing in Sri Lanka

(Initially published as a blog-post at Sri Lanka Campaign for Peace & Justice, Nov. 10, 2010)

Since the end of the Cold War, and through the era of the so-called “Global War on Terror,” Japan has struggled to define and develop a meaningful role for itself in the world of international politics. Constitutionally constrained from participating in collective security operations that involve the use of force, it has sought to cast itself as something of a “power for peace.”(1) In its handling of the crisis in Sri Lanka, however, it appears to be losing its way. While providing a great deal of aid to Sri Lanka, Japan is failing to exercise its considerable influence to help reduce the causes of further conflict, and risks not only undermining its own ambitions but also significantly harming the chances for peace and justice in Sri Lanka.

Almost exactly twenty years ago, the run-up to the Gulf War of 1991 created a major crisis within Japan that has had an enduring impact on the country’s politics and policy. The Japanese government came under enormous pressure to contribute to the international effort to resist the aggression of Iraq, in a region from which Japan obtained most of its energy supply. But Japan was constrained by its Constitution from any involvement in the military operations. It ended up providing support in other ways, including giving US $13 billion to the effort, more than any other country. Yet it was scorned (unfairly) for its “cheque book diplomacy,” received little gratitude for its help, and came out of the crisis with a deep sense that it would have to find more meaningful ways to contribute to the international community – particularly given that it continued to nurture ambitions to obtain a permanent seat on the United Nations Security Council.

Japan turned to limited involvement in U.N. peacekeeping, participation in the development of such concepts as “human security” (2), and perhaps most important, the use of foreign aid, particularly in areas of ongoing or potential conflict, to increase its influence and shape its identity as a “power for peace.” With respect to Sri Lanka, in 2003 Japan tried to take a leading role by hosting the Tokyo Conference on Reconstruction and Development in Sri Lanka and it played an important role in the Norway-led peace talks that continued in the period that followed. Japan’s foreign aid to Sri Lanka, in the form of loans, grants, and the provision of technical assistance, has been part of that effort, and Japan has given far more foreign aid in the last ten years than any other country (3). In the 2007-2008 period alone, Japan provided US $ 288 million, more than three times the amount given by each of the U.S. and the E.U. (4), and Sri Lanka was tenth on the list of Japan’s top aid recipients (5). The benefits to Sri Lanka from such aid should not be minimized, and it will no doubt contribute to the economic growth and stability essential to (while of course not sufficient for) the post-war peace process in Sri Lanka. … Read more…