War
James Maule
maule at LAW.VILLANOVA.EDU
Fri Nov 1 15:37:04 PST 2002
I don't understand the "specific and identifiable enemies"
justification. The notion that these "specific and identifiable enemies"
are "usually other political states, against which presidents sought
formal declarations of war" simply opens the door to clever enemies who
act under the mask of non-state organizations, affiliations or other
amorphous structures.
Were the enemies in the Civil War, WW 2, and other wars truly "specific
and identifiable." The only thing that was specific and identifiable was
a cluster of individuals (including a leader) who made themselves into
enemies. That cluster did not include all of those living within or
otherwise identified with a political state. Not ever Southerner
supported the Confederacy (or what it sought to preserve). Not every
German, Japanese and Italian supported the Axis Powers (or their goals).
So in terms of identifying an enemy, the best that could be said was
that there was a presumption. Capture a German-speaking individual, and
figure out what the person's status is (a spy, a double agent, an enemy,
an innocent civilian?). Unlike organizations that keep membership lists,
the Confederacy and the Axis Powers (as bureaucratic as they were) never
created a list of specific and identifiable members who adhered to the
position that was enveloped within being an enemy.
I have carefully used the phrase "War of Terrorism" rather than "War on
Terrorism" (and I wish the President and his advisors would be more
careful with words, for in so doing they might end up being a little
more careful with other things, too). It is a war of terrorism because
its campaigns, strategies and tactics are and will be dominated by
terrorist acts and counter-terrorist acts. The "enemy" is easily
identified: those who subscribe to the belief that this country and what
its Constitution stands for must be destroyed and who dedicate
themselves, openly or surreptitously, to the financial, political,
military, and moral support of that goal. The fact that this nation
cannot specifically identify the members, is unwilling and unable to
bring forth the evidence of all the nation states for which they act and
by which they are supported, and cannot put them as a specific color in
one or two places on a world map does not detract from the fact that a
state of war exists, having been declared by proxy on this country
several years ago. The tougher questions are those that ask what effect
this state of war has on the reach of Constitutional rights and powers.
Incidentally, the notion of "innocent civilians," even if it means
something other than non-combatants (civilians can be combatants, e.g.,
resistance movements), is a relatively new one in terms of humanity's
history. When war arrived in the form of the invading horde, legion, or
mob, anyone physically capable of fighting did so. And, as for the
history of terror as a tactic or strategy, don't forget the Romans,
Greeks, Persians, Sumerians, and the whole array of "civilizations"
reaching back into the unwritten dim ages before written history. It's
not that humanity has gotten worse; it's that it doesn't seem to have
gotten better.
Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction)
(www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
>>> cornell at MAIL.WSU.EDU 11/01/02 03:03PM >>>
<html>
Let me respond to the thoughtful points raised by IIya Somin, Eugene
and
others about whether its appropriate to apply previous wartime
precedents
to justify Bush administration policies as part of a "war"
on
terrorism:<br>
<br>
1) I think it matters little whether the Civil War, WWII, and other
conflicts were expected to have much longer durations at the time than
actually occurred." The point is, that these conflicts involved
identifiable enemies and therefore included recognizable end points to
the conflict (no matter how long the end eventually took). <br>
<br>
Nothing similar exists, nor can exist, with respect to
"terrorism." Nor is the problem simply that terrorism is not
a
"state" as Eugene suggests by citing Montoya v. United
States
(1901). Terrorism (or the deliberate targeting of innocent civilians
for
political purpose) is not an enemy at all, its a tactic, a strategy,
that
can be used by any group to support any cause (many would argue that
dropping the bomb on Hiroshima was an example of terrorism).
Terrorism
has always existed (think only of the Irish conflict, the Palestinian
conflict, the Contra rebels in Nicaragua, the U.S. conflict with
Native
American tribes during the 19th century, not to mention the Crusades
and
Jihads that date back at least to the 11th century). Terrorism will
always exist, the only change will be who is labeled a terrorist.
<br>
<br>
Thus, the problem with applying wartime precedents to expand
government
authority under the rubric of a "war on terrorism" is that
it
will allow a permanent reduction in constitutionally protected liberty
in
a way that the precedents and doctrines of previous conventional wars
simply never anticipated nor would condone.<br>
<br>
2) Beyond permitting a permanent (or at least semi-permanent)
reduction
in constitutional rights, applying wartime precedents to the "war
on
terrorism" also expands executive discretion in a way those
precedents never contemplated. Since terrorism is a strategy rather
than
a state or even a group, the administration can label nearly any group
or
person who commits a crime against innocents as terrorists. We've
already seen this happen in the sniper case where many commentators
have
called them terrorists rather than simple criminals. Were the snipers
bad people? Yes. Do they pose a threat to the constitutional order
that
justifies a general reduction in protecting constitutional liberties?
No
(even if they did terrorize people)! If Bush decided to try these
individuals as terrorists in a military tribunal (as a way of getting
around the problem of imposing the death penalty in an ordinary
civilian
court), would that be constitutional? What if Richard Nixon had
labelled
the anti-war movement or the Black separatist movement as terrorist?
Or
what if the Bush administration decides that drug dealers, animal
rights
activists, or radical environmentalists are terrorists? Or a future
administration decides that radical anti-abortion activists are
terrorists. Certainly, many of the activities of these groups are
calculated to terrorize the public so as to create change in public
policy. Would these justify application of wartime precedents -- say
internment or indeterminate detention of group members or the use of
military tribunals for trials?<br>
<br>
3) Contra to Eugene's point, my argument with respect to Iraq is not
that I disagree with a war against Iraq as a matter of policy
(personally, I think Sadam to be a dangerous despot that we should be
removed from power -- though I'm dubious whether the actual threat he
posses justifies a war). My point was that the congressional
resolution
obtained by the administration (which in my view is the most sweeping
grant of power to an administration since the Gulf of Tonkin), should
not
have been justified as part of a war on terrorism. This is simply one
more example of how the rhetoric and fear of "war" is being
used by this administration to expand its power (both constitutionally
and unconstitutionally).<br>
<br>
4) Finally, I simply disagree with IIya that history demonstrates
that
"Madison, Lincoln, FDR, Wilson, LBJ and Nixon behaved no better
than
the Bush administration and in most cases a good deal worse."
The
point is that in these previous wars were different both in degree and
in
kind. The country faced more serious threats <i>from specific and
identifiable enemies</i> -- usually other political states, against
which
presidents sought formal declarations of war. WWI, WWII, and the
Civil
War simply are not analogous to Bush's war on terrorism. But, even if
they were, the Bush administration has gone beyond what the precedents
during these periods established (i.e. Quirin rejects the
Administration's argument on judicial reviewability of unlawful
combatants, and, even when FDR interned thousands of
Japanese-Americans,
he did so openly without resorting to secret detentions and hearings
such
as Ashcroft has done with the roundup of Muslims). <br>
<br>
The broader point, however, is that the relevant historical comparison
is
not WWI or WWII or even the Civil War. Instead it is the Palmer Raids
in
1919 (as part of a "war" against suspected anarchists and
terrorists), the Smith Act and McCarthy hearings of the 1950s (as part
of
a "war" against communism), and, yes, the actions of the FBI
and other federal agencies under Nixon and LBJ (as part of a
"war" against radicals and the counter-culture). In all of
these conflicts, the enemy was a similarly vague, and ill-defined
threat. Do we look at these periods as moments of constitutional
pride,
or as moments of political shame where constitutional rights were
unjustifiably violated? <br>
<br>
Best,<br>
CWC<br>
<br>
<br>
<BR>
</html>
More information about the Conlawprof
mailing list