Alternatives to Law Enforcement

A nice point from David Shorr:

So Michael, I don't disagree with a word of your review of the relative merits of law enforcement versus military action in combatting terrorism. Except I no longer believe the Right is really making an argument for the military as a counterterror tool. Think about it, how often do we hear proposals from political leaders for how our military can and will win the war on terror for us.

Right. We've moved past a debate about "law and enforcement and intelligence" versus "military action" to a debate where the alternative to law enforcement is just lawlessness -- people get arrested and thrown in prison, just like with law enforcement, but they have no recourse and no opportunity to prove they don't belong there. But a system based on arbitrary indefinite detention, warrantless surveillance, and torture isn't a system of war it's just a system of indiscriminate criminality and abuse of power.

Comments

Speaking of warantless surveillance, the proposed FISA compromise:

"Critical to sealing the deal was a compromise that would grant conditional immunity to telecommunications companies for assistance they provided from September 2001 through January 2007. If the companies can show a federal district court judge "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful, the cases against them will be dismissed."
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So, had AT & T and Verizon teamed in 2002 and nuked Memphis a mere letter from Bush saying they had his OK to do it and that'd be the end of it?

Posted by steve duncan | June 19, 2008 11:56 AM

When Republicans are saying "Does this mean even Osama bin Laden would get habeas rights?" (implying, perhaps, that he shouldn't) of that new Supreme Court habeas decision, it should make the average American angry- at the Republicans.

After all, how does the average American know that this guy actually exists, that the story isn't totally made-up, and that he isn't just some actor on staged, faked movies we see over and over again? Or how do we know that he actually did anything, and that he movies we see of him aren't just rigged up with computer graphics, etc.?

We have the say-so of the government and the people in the media- that's all. And we don't know who's influencing them.

You'd think the average American would be in favor of more protection, and review of charges, before we lock a guy in a dungeon. You see some image of bin Laden or some other terrorist on TV, but it could just as well be you- the same system of laws apply to those guys when the government wants to lock somebody up as would apply to you. By not objecting when the Republicans try to take all these rights and freedoms away, you're letting them take away your rights and freedoms, and if some dickwad with a grudge wants to come after you some day, the protections won't be there to help you if you don't stick up for them.

I'm not one of these guys who really thinks bin Laden didn't do it, but when people start saying we should take away the public's chance to see, through a determination in front of court, whether the government is really obeying the law and whether people the government arrests really did anything, then I start to think that's really disgusting.

Matt's statement But a system based on arbitrary indefinite detention, warrantless surveillance, and torture isn't a system of war it's just a system of indiscriminate criminality and abuse of power, might sound good to some people, but I think it's going out on a limb, a little. But I don't have to agree with it word-for-word to think there's a lot wrong that's being going on with the media and the executive branch of government in this country, not to mention a lot of other private people and people in government they've both managed to influence.

Posted by Swan | June 19, 2008 11:58 AM

Turns out, part of why they reject the "law enforcement" model for dealing with terrorists, is that they can't be bothered to find and catch the actual terrorists.

Posted by rea | June 19, 2008 11:58 AM

The Kıng barks 'TORTURE HIM!' when brought any prısoner, and hıs power of detentıon ıs unlımıted ınsıde and outsıde hıs borders, even unto death.

Republıcans fınd that image comfortıng. They feel more secure.

Posted by Marshall | June 19, 2008 12:03 PM

In Nazi Germany, the first thing they did, way before murdering any Jews, was take away a lot of people's rights and give enormous power (especially over private citizens) to the Gestapo. Thousands of Aryan Germans got murdered or sent to concentration camps just for not agreeing with Hitler long before anyone started systematically rounding Jews up.

So if anyone out there thinks, "They're not going after me, just the Muslims" keep in mind, you may always be in for a very rude surprise. After all, we already had the John Walker thing- I 100% assure you, every nutty, paranoid little super-conservative nutcase out there thinks any white guy around him at any moment many very well be in Al Qaeda. All it would take to instantly convince most of them is the media or the government's say-so-- that's how stupid people operate.

Posted by Swan | June 19, 2008 12:09 PM

But a system based on arbitrary indefinite detention, warrantless surveillance, and torture isn't a system of war it's just a system of indiscriminate criminality and abuse of power.

Or maybe, some would argue, its a system of focussed and discriminating criminality and abuse of power?

If these GWOT debates are an issue in 2008 as they were in 2004 - and it is by no means obvious that they will be - then the central question will be, "Have these rough and extralegal methods made us safer?"

What is Matt's suggested answer? One possible answer is "On the whole, yes. But in the interest of decency and justice we shouldn't have used them anyway, notwithstanding their effectiveness."

Another possible answer is "No. They have made us less safe." A plausible story can be told here about the public diplomatic costs and growth of hostilities and resentments that come from the disclosure of shameful techniques, but it is a speculative story, and difficult to assess.

And after they have been told the story, some will continue to wonder whether the reason we have not seen a major terrorist event since 2001 is that, among the thousands of poor ineffectual saps who were nabbed in the global post 9/11 roundup and subsequently sent to the dungeons and brutalized, guys who just had the wrong friends or were in the wrong place at the wrong time, or who might even be victims of completely mistaken identity, are also included the 25 or 50 truly nasty and capable individuals who otherwise would have pulled off some spectacularly destructive attack themselves, or who, in response to torture, ratted out other guys who were in the process of planning and preparing such attacks.

So what is Matt's preferred approach here?

Posted by Dan Kervick | June 19, 2008 12:36 PM

Republıcans fınd that image comfortıng. They feel more secure.

That's not a justification for anything as extreme as this.

There's a Clive Barker story where a grown man lives in fear of dream he had as a kid where a really kooky ax-murderer breaks into his house in the middle of the night to kill him. He's so scared of it that he starts doing experiments on people- kidnapping them and torturing them- to try to get a clue from how they react to it as to how to deal with his paralyzing fear.

How is that different from this? Some fat-ass, golf-addicted, 41-year-old-child's irrational fears don't justify everything.

Fisrt of all, you're more likely to get killed by a bunch of things than you are to get killed by any kind of willfully violent criminal. Second of all, why isn't it good enough if our troops just capture, kill, and defeat the bad-guys in a normal, half-way decent way? The time you waste pissing on the Koran in front of some motherfucker (or maube even some guy who is innocent) could be spent catching more terrorists!

Why not just grow up and learn to deal with fear?

Posted by Swan | June 19, 2008 12:43 PM

If arbitrary detention, torture, and warrantless wiretapping could readily be shown to have prevented a terrorist attack that would have otherwise succeeded, the pro-torture faction in the government would have loudly publicized it. The absence of such claims is pretty strong evidence that these illegal government actions have not prevented any attacks.

(See David Luban's recent post at Balkinization for discussion of the few sketchy claims that have been made to the effect that torture has prevented any attacks.)

(And I'm not saying that if torture's effectiveness were proved I would necessarily be in favor of it. But surely the burden should first be on its proponents to show effectiveness.)

Posted by Tom | June 19, 2008 12:50 PM

"....and subsequently sent to the dungeons and brutalized, guys who just had the wrong friends or were in the wrong place at the wrong time, or who might even be victims of completely mistaken identity, are also included the 25 or 50 truly nasty and capable individuals who otherwise would have pulled off some spectacularly destructive attack themselves, or who, in response to torture, ratted out other guys who were in the process of planning and preparing such attacks.

So what is Matt's preferred approach here?"

Posted by Dan Kervick | June 19, 2008 12:36 PM
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Well Dan, using that logic maybe we should build a wall around Detroit, quarantine it and send in the 101st Airborne to ass-fuck the entire city's population. Might be a half dozen nasty dudes that'd get the message during the seige, huh?

Posted by steve duncan | June 19, 2008 12:50 PM

"has X made us safer?" is a terrible criterion. It could be used as a justification for umpteen genocides and brazilians of other horrors. We'd really be safe if everyone else in the world was dead. Well, until you guys started to be menacing, of course.

Posted by Jeffrey Davis | June 19, 2008 1:06 PM

Republıcans fınd that image comfortıng. They feel more secure.

People who think they notice that our nation's media is turning into a masterpiece of partisan deception also might find that image discourages them from saying anything about what they think they notice.

But that would just be possibly the beginning of the end of our free society.

Posted by Swan | June 19, 2008 1:07 PM

Steve Duncan,

In wasn't giving an argument. I was suggesting that those are thoughts that are going to be on the minds of some voters, and that it is not clear from Matt's post what his response would be.

Posted by Dan Kervick | June 19, 2008 1:21 PM

What the recent debate has revealed is incredibly frightening:

The overwhelming majority of news commentators, politicians and law-makers are clueless about the meaning of the words "habeas corpus." They simply don't know what the right of it means.

This should not surprise me. For the last couple of years I have taught a course in media law at a very respected journalism school. I have taught both graduate students and undergraduate students. I have now come to expect that my students will arrive in my class with a level of knowledge about the legal system and the constitution that would be insufficient to pass a citizenship exam to become naturalized citizens. (I know this because I have had several employees study for citizenship exam and I have helped them with the practice questions).

Posted by Sherry | June 19, 2008 1:22 PM

"has X made us safer?" is a terrible criterion.

You might think so. But since most Americans do indeed regard it as part of the job of their government to make them safer, then I doubt you will find widespread agreement with that sentiment.

Posted by Dan Kervick | June 19, 2008 1:25 PM

Sorry Dan, even someone thinking aloud like a wingnut is a little grating I guess. You are correct millions have no problem with a few innocents suffering if it assures their safety. Our prisons are full of innocent people. There are more than a few that would be OK with my suggestion about Detroit, too, if only because it is populated by a bunch of those nasty Muslim guys. Can't abuse enough of them, can we?

Posted by steve duncan | June 19, 2008 2:28 PM

"Why not just grow up and learn to deal with fear?"

What part of "chimpanzee" don't you understand?

Okay, that was snarky.

The point is that this trick - scaring people with the "bad guys over there" works every time.

This was the entire point of the movie "V for Vendetta" which I think almost everybody missed. The two most important scenes in the movie are 1) the one where Chancellor Sutler screams "I want EVERYONE to remember WHY THEY NEED US!", and 2) the moment when Evey loses her fear.

But look how much effort V had to go through to get her to lose her fear. You can't do that kind of manipulation to six billion people.

The reality is that humans are in primate competition with and thus fear every other human, on a deep level. Human cultural evolution has made this deep fear controllable to a certain degree - but it's fragile. It's easily broken down by evidence of a real threat - no matter how localized and statistically unlikely.

That was the lesson of 9/11. One local incident which killed a fairly small number of people compared to the population - in fact, compared to the sorts of death tolls you see in Third World countries from earthquakes and the like, a trivial number - scared the hell out of a good portion of 300 million people and allowed them to acquiesce in the vast expansion of state power and the conduct of wars on other nations which have killed over a million people.

Sutler had to kill close to 100,000 to get the same effect in the movie.

Posted by Richard Steven Hack | June 19, 2008 8:25 PM