Getting smart about tribunals: separating power grab from counterterrorism-inspired judicial processes

I am not a legal scholar and it is often hard for me to be able to follow the discussions about what is happening to the Republic. Maybe others feel the same.

I have these questions, though, that I list just to see if anyone else has the same or can say whether these are off-base. As I find resources or formulate answers, I will add them to the thread.

1. What is the role of Military Justice?
   
   This question came to my mind in the context of Executive authority. Senator L. Graham, on the Senate floor, said that he believes that, in times of war, the Executive ought to have deference in determining who is an enemy combatant, rather than a judge. This history of this principle, as I understood it, is so that the military can shape the battlefield to its advantage.
   
   My question, however, is what is “the battlefield” in international terrorism, except the streets and houses of non-US citizens? Do we really want the military ‘shaping’ this part of our international relations, in general?
   
   We fought international terrorism for a long while before 9-11 (and it seems other nations, like Britain have too). What has changed since then? We have mobilized the Army (for Afghanistan). Well, is that just a circumstance or do we really need new legal principles for that, a mobilization which we do not expect to be frequently recurring?
   
   Last, why is the military the right choice? I can appreciate the difficulties of offering criminal trials, but what is the argument against having a civilian tribunal set-up, rather than a military one?
   
   Lindsey Graham was asking, “Do you believe 9-11 was an act of war or a crime?” (asked of Justice Alito, too).I think most sensitive, non-lawyer folks believe that terrorists acts are “acts of war (or moral depravity) that we intuitively feel should be calmly and steadfastly prosecuted as crimes.” Can the legal system be made to accommodate that tension?
   
   
2. What is a successful trial for international terrorists?
   
   This question came up in watching Mary Jo White, et. al. on C-span yesterday.
   
   How can we possibly NOT think of a trial as an extension of our counterterrorism efforts? Clearly, al-qa’ida types believe that their trial is just the ‘judicial phase’ of their jihad, their public platform even to show the political part of their political-violence.
   
   It seems to me that ‘success’ goes beyond proving ‘guilt’ in a conspiracy, for example. We might define the public interest in paying for a trial, for Justice, to publicly re-enforce a broad-reaching counter-terror strategy, viz. that political violence is the wrong choice for social change, that individual pain or suffering does not justify all things to oneself, that terrorist acts are not moral championship but moral abdication, etc.
   
   
3. Should we look to specific cases to make good judgments about how to handle them or do we need a complete “framework”?
   
   How much are decisions about what to do being and proposed solutions driven by the number of new cases, how much by the similarity of cases, and how much by the uniqueness of cases?
   
   Are we making choices about how to structure due process because we do not have “good cases” or have “poor cases” against certain people who we just do not want to let go (let go at any price)?
   
   Are we ready, as a public, to actually let someone go, because a confession was the result of CIA …er .. “righteousness”, rather than regress the evidentiary rules so much that even hearsay is ‘sufficient’ or worse?
   
   
4. How much do we need harmonize international approaches to prosecuting terrorists?
   
   How much can the World’s Security Net be set-up so that there are some minimum standards of evidence and perception that serving Justice to terrorists is not something that is so wholly dependent on jurisdiction?Rather than take differences as something that ‘must be dealt with at trial’, how much do we need to deal with it at the diplomatic and ex ante security arrangement level?
   
   Should we view our legal system as spoke in the wheel of the legal systems of many cooperating Nations?
   
   What is a good relationship between counterterrorism/enforcement and judicial prosecution? Are we interested in intelligence value, primarily, that is, in being integrated into an capture/interrogation process? Can home countries try terrorists? Does the dependence on proprietary intelligence sources make that an impossibility?
   
   
5. How much and how should ‘fault tolerance’ be included in the design of legal choices?
   
   Are there unique implications for counterterrorism of Type-I and Type-II judicial errors and prosecution ‘failure’? Are these unique implications such ('stakes so high') that they change the character of the Justice we seek?
   
   Can we or should we tolerate certain types of errors more than others?
   
   If so, what are the costs attached to each? Who gets to choose how to balance that equation, to make that choice – the courts or the legislatures or the executive?

Straight talk on "Strategy" Generates Administration Accountability

"Accountability" is in the air in Washington, at least in prospect.

A TEMPLATE FOR ACCOUNTABILITY AND CITIZEN-LED EVALUATION

One way forward is to start insisting in clear thinking. Not just smart-talk about counterterrorism, but also demand that the Administration (especially Scty Rumsfeld and the DoD Press Corps) clearly separate goals from strategy, and that they be fully accountable for the strategy -- for clearly articulating it, responsibly communicating it, and for sharing evaluations of it.

Some tactical choices may prove insufficient to an adopted strategy. This doesn't negate the strategy, per se. However, if there are no or few tactics that can be or have been used to execute the strategy, then the strategy may not be executable or adoptable. Something else is needed.

STRATEGIC EVALUATION

If the results of a strategy turn out to be insufficiently complete or show themselves too costly (measured in time or treasure or both), and if there are indications that other factors that make the effectiveness of a strategy remote or increasingly remote, then the achiveability of the stated goals starts to come into question.

SAMPLES

These are examples of goals (and they can be disputed):

• Neutralize the insurgency (Woodward quotes Rumsfeld)
• An Iraq that can defend and sustain itself and be an ally in the "War on terror" (not my phrase). (Bush in Stephanopolous interview)

These are slogans, mostly useless (boo! ug!):

• Stay the course
• Cut and Run
• Until the job is finished
• Peace with Dignity
• The Only Exit Strategy is Victory

Here is one counter-insurgency strategy: CLEAR-HOLD-BUILD ( clear /limit each area of those with hostile intent and capability; hold ground against backsliding; and build out political, security, and infrastructure until overall objective is achieved).

Within the strategy there could be various tactics:

• Perimiter operations, US only troops
• Police training, Army involvement (US, Iraqi, other national)
• Psy-ops
• Political negotiations/bargaining - even payoffs for information and cooperation
• Support from Scorpion Brigades

Trust Me, the Iraqi ‘War’ is Going as Well as Expected

SAY WHAAAAT?

`We are making progress everyday in Iraq', is what we heard this week and last from the WH press secretary and from the DOD podium.

Do you feel like you have enough information to know whether OIF (Operation Iraqi Freedom) is going well or not? I don't.

I'm talking about decision-quality information.

By that, I mean sufficiently comprehensive, systematic, accurate information, not just ad-hoc reporting of this particular area of sectarian violence, this-or-that town, or the latest backward-looking body count?

YOU HAVE TO KNOW WHAT YOU WANT TO GET IT

It is time to start challenging the notion that the remainder of this struggle in Iraq needs to be classified "secret" in order to win it. I've put together a potential starting point at the end of this post for what I have in mind. Everyone should consider what is on their own list, however. This is not dogma!

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Here is what I want from my government, for the sake of my Army and for the sake of a government by The People, not by The Experts. I hope you do was well.

REQUIRED WAR REPORT OF THE PRESIDENT, bi-weekly

OIF Strategy: CLEAR - HOLD - BUILD

PROGRESS REPORTING, Percent completed

• Five metrics of progress for each segment of "Clear", "Hold" and "Build".
• An overall % completed guesstimate
• Breakdown for each Province, 18 in all. Breakdown by other, smaller groups (by sheik, by jurisdiction, by sharia court if one has been set up for a local area, by any group with significant influence in an area).
• Requested field resourcing.
• Breakdown of the assessment of what materials, equipment, and political support are needed at each stage, for example:
  
  CLEAR - troop levels and skills unique to `Clear', weaponry, intelligence, time-phased troop levels and skills, required Iraqi expertise (troop levels, cooperation/coordination, equipment, etc.); Foreign cooperation and expertise;
  
  HOLD - troop levels and skills and levels unique to `Hold', buildup of army forces, alliances, political certainty on issues, Iraqi expertise (build-out of army and police units, vertical and horizontal political consolidation of power/influence, short-term economic improvements); Foreign support (material and nonmaterial);
  
  BUILD - troop levels and skills, maintenance of political alliances/cooperation, electricity, water, all things USAID; U.N.

ORGANIZATIONAL DESIGN IN THE MILITARY

1. A disclosure on the what personnel design strategy has been chosen to ensure that cross-functional teams that are meant to solve the problems that are known to exits at each stage of clear-hold-build. Some of these tasks require long-term commitments; others, short-term.
   
   This may imply different incentives, longer tours and commitments for advisers, different training needs - the list is very, very long.
   
   
2. We ought to significantly challenge the notion that all coordinated effort (and information) be limited to the military chain of command, Period.
   
   This may involve a redefinition of the unit level to include civilians of one type or another, including State Department or USAID people or others who need to be part of competent, cross-functional teams.
   
   
3. Metrics on the processing of requests and a top-Brass accountability `track' that ensures that important field-requests and information are not slipping through the cracks of the bureaucracy.
   
   This may mean that the military has to get more publicly `exposed' than they are used to in peacetime. If we need to elect one of their own in 2008 to get them to do, so be it.

REFOCUS THE OLD DEBATES IN A NEW LIGHT

We ought to be able to end or attenuate the exhausting debate about `troop levels' in this way.

Field-level raw requests for troops will give a bottom-up range, low to high, of the requested troop levels. How the Brass chooses to `modify 'those requests and the rational can also be laid bare. At least this decision process will finally be made plain enough that we can stop saying "trust me" and start arguing tactics, which may not result in agreement, but at least it will end radical doubt and maybe even create some buy-in.

INFORMED CONSENT OF THE GOVERNED

Without a fact-based sense of retreat or advance, a policy of `hope' cannot be sustained, even if aptly put. No amount of repeating the threats, the so-called lessons of 9-11, or harping on "the stakes" (that were not initially laid plain or made clear), is going to be ultimately sufficient.

During World War II, people knew of grave dangers, they knew when the Germans were advancing and when there was a battlefield retreat or difficulty. They had Roosevelt and Churchill to offer words to help keep the faith.

Today, instead, we have an amorphous war with threats of failure keeping us going rather than a calm, technical approach to counter-terrorism and counter-insurgency on which we can publically debate.

It is time to demand better for the Republic, don't you think?

Carpe Diem.

This is a test.