Courting Disaster

The distress over the recent Supreme Court decision, Boumediene v. Bush, is not going to be relieved anytime soon. John Yoo, law professor at right-wing Berkeley sounds off at the Wall Street Journal. I am just catching up on this story, to be honest. Is this simply an anti-Bush vote on the part of the court or another new discovery in the penumbras of the Supreme Court's Edition of the Constitution? Yoo:

From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties. Boumediene did anything but. The 5-4 ruling is judicial imperialism of the highest order.

Yoo worries that now the Court will begin micromanaging war. "Did said soldier have probable cause to shoot?" Actually, the Court is simply taking the same approach many of our lesser courts (with its help) have taken to law enforcement in our own cities and towns: tie the hands of the police, set free the criminals--even when it is known that they have committed a crime. Any society that won't punish evildoers has lost the ability to survive.

Comments

[Chris Ryland]

No, I'm sorry, all the Court ruled was that the people at Guantanamo had the *right* to appeal their incarceration, i.e., to invoke habeus corpus.

No matter what the charge, no matter what the circumstances, this is the foundational right of any free society: the government has to actually make a case that someone is being held for a reason.

Otherwise, we know we've strayed into totalitarianism.

[GL]

Chris,

I'll admit that I have not yet read Boumediene v. Bush. (It is not a case in my area of expertise and I am busy wrapping up work at my current position before relocating next week, so it will likely be awhile before I get to it). However, as I understand the case, the question was whether an enemy combatant in time of war has access to what is known as the Great Writ when he is being held prisoner outside the U.S. We are not talking about American citizens nor are we talking about non-citizens who are on American soil. We are talking about non-citizens who were captured in a war zone in a foreign nation and are being held outside the U.S. I am unaware of such persons EVER having access to the writ of habeas corpus.

Thus, to say "this is the foundational right of any free society" is disingenuous at best. Bush, unlike Lincoln (who relied on the Suspension Clause of Article I, Section 9 and did not act extra constitutionally as many allege), has not denied the Great Writ to American citizens nor to non-citizens who are on American soil. Even if you favor what the Court has done, it appears to me (based on my legal training, but an admitted lack of expertise) to be an expansion of the coverage of the writ. Please be honest about what was done here.

[Charles R. Williams]

"all the Court ruled was that the people at Guantanamo had the *right* to appeal their incarceration"

Not true. The court held that the individuals at Guantanamo had the right to appeal their incarceration to federal courts - as if they were citizens, as if Guantanamo fell within the jurisdiction of some federal court, as if they were accused of some every day crime. They are, for the most part, unlawful civilian combatants in an ongoing war apprehended in military operations abroad.

Yes, they have a right to appeal but Congress, not the courts, has the responsibility to provide for this - which they have done.

This act of the Supreme Court is an egregious violation of the separation of powers.

[Charles R. Williams]

"all the Court ruled was that the people at Guantanamo had the *right* to appeal their incarceration"

Not true. The court held that the individuals at Guantanamo had the right to appeal their incarceration to federal courts - as if they were citizens, as if Guantanamo fell within the jurisdiction of some federal court, as if they were accused of some every day crime. They are, for the most part, unlawful civilian combatants in an ongoing war apprehended in military operations abroad.

Yes, they have a right to appeal but Congress, not the courts, has the responsibility to provide for this - which they have done.

This act of the Supreme Court is an egregious violation of the separation of powers.

[Stuart Koehl]

habeas Corpus does applies only to U.S. citizens or those detained by civil courts. It does not, and has never, applied to any enemy combatants, legal or illegal, apprehended either abroad or on U.S. territory. In the case of legal combatants, the Hague and Geneva Conventions governs the handling of legitimate prisoners of war--who do NOT have the right to use Habeas Corpus to challenge their detention. Prisoners of war are detained either for the duration of a conflict, or until exchanged by a cartel, or released on humanitarian grounds. Since there are no set timeframes for warfare, their detentions are essentially open-ended.

In the matter of unlawful combatants--that is, the class of persons with whom we are dealing--the Geneva Conventions do not apply. They may be handled in accordance with the rules and regulations set up by the cognizant military authorities, which may consist of anything from drumhead courts martial (as were applied to the Skorzeny commandos captured in American uniforms during the Battle of the Bulge in 1944-45) to the establishment of formal military tribunals, such as those used to try, convict and execute eight Nazi infiltrators captured on the East Coast in 1942. In fact, there are so many precedents for the handling of unlawful combatants that it is surprising this is even an issue at all. Let's just say the Supreme Court got awfully inventive here, and that one ought to read the dissenting opinions, particularly those of Chief Justice Roberts and Justice Scalia, to appreciate the full magnitude of this folly.

While we're on the subject of "foundational rights", I feel quite certain that Chris is utterly unfamiliar with France's counter-terrorism laws or its special counter-terrorism courts, which afford the accused far fewer rights than those accorded to our special detainees in Guantonomo and elsewere. Among other things, these courts can hear cases in camera, accept hearsay evidence, protect the identity of witnesses, and can hold suspects indefinitely while incommunicado. In short, they are very much like our military tribunals, only not as nice. Is France, then, NOT the haven of enlightened humanitarianism that we were led to believe? Will Alex Baldwin have to find a new home in exile?

[Bobby Winters]

Somebody put some flesh on this for me. Say Adolf Hitler had been captured and brought to the US. Under this decision, would he be granted a trial in a US Federal Court?

[Judy K. Warner]

Expanding on Stuart's first paragraph, how bizarre it is that unlawful combatants have been given more rights than lawful combatants. If the government had classified the unlawful combatants as POWs in the first place, their rights would have been defined and none of this would have come up. On the other hand, one of the reasons for the Geneva Conventions is to reward, as it were, combatants for acting lawfully; if you get POW status no matter what, this incentive is gone. (Or was, before this decision.) So not knowing what legal challenges were to come, the Bush administration was certainly within its rights and had good reason for classifying these guys as unlawful combatants.

With the kind of warfare that is going on now, do we need another Geneva convention to cover unlawful combatants, or would that be counterproductive?

[David Gray]

>Somebody put some flesh on this for me. Say Adolf Hitler had been captured and brought to the US. Under this decision, would he be granted a trial in a US Federal Court?

His agents came and we executed some of them. No habeas corpus for those lads.

Only fools protect people who don't obey the laws of war. In a sense we should have executed a good many of those people within hours of their capture.

[Bobby Winters]

>>>>Somebody put some flesh on this for me. Say Adolf Hitler had been captured and brought to the US. Under this decision, would he be granted a trial in a US Federal Court?

His agents came and we executed some of them. No habeas corpus for those lads.

Only fools protect people who don't obey the laws of war. In a sense we should have executed a good many of those people within hours of their capture.
<<<

Did you answer my question somewhere in there?

[Matthias]

Like most of us here I haven't read the decision or the dissents, and I doubt if a lot of new light will be shed on the issue on this blog.

But a few questions to those who oppose the decision:

Can the executive branch be trusted to never make mistakes in identifying unlawful combatants, and if so why can't it be trusted to never make mistakes in identifying common criminals?

What does U.S. citizenship have to do with anything in this discussion? (In my copy of the Constitution, the Habeas clause makes no mention of citizenship.)

And finally, what on earth do the laws of France (!) have to do with anything? (I guess this one's just for SK)

[labrialumn]

As a Christian conservative, I find that these unalienable rights granted by our Creator (which are not limited to those enumerated in the Declaration of Independence) apply to all humans. Indeed, they are in the Bible.

Presumed innocent until found guilty. Anything less is tyranny.

To adopt the 'guilty until proven innocent' jurisprudence of tyrants and police states, and incarcerate people without trial, without defense, without facing their accusers, indefinitely, presumed guilty, with a pretense that they are not on American soil (and does Castro really have authority over the Guantanamo Bay naval base?) is just chicanery and excuse for tyranny. Our government has apparently even exported Canadian citizens to be tortured in Syria and Egypt, again, without trial.

Puleese.

[David Gray]

>Presumed innocent until found guilty. Anything less is tyranny.

Since when? That has never been the rule for enemy combatants, lawful or unlawful. You really want to give a public defender and court time to each member of the Wehrmacht we captured?

[Matthias]

"You really want to give a public defender and court time to each member of the Wehrmacht we captured?" Of course not. When you wear the uniform of a sovereign nation that is at war, the rules change. Everyone agrees on that. You get to be treated as a soldier, which has both benefits and drawbacks. The main drawback is that people will try to kill you. The benefit is that if they happen to capture you, they have to treat you as a POW.

The trouble is with random Joe on the street who happens to get picked up by an army and told "you are an enemy combatant" and thrown into a prison. Such a person does, yes, have a human right to challenge his detention and attempt to argue that he is not in fact, an enemy combatant. Reasonable judgment has to be exercised, of course -- one doesn't expect a prompt challenge of detention for someone picked up outside the Ardennes Forest while the Battle of the Bulge is raging. But somewhere between that situation and six years of detention in Guantanamo is a line beyond which detention without a right to even request a hearing is an unconscionable violation of human rights. Courts need to draw that line, and in this case, as far as I can tell, it should have been easy.

[David Gray]

>When you wear the uniform of a sovereign nation that is at war, the rules change. Everyone agrees on that. You get to be treated as a soldier, which has both benefits and drawbacks. The main drawback is that people will try to kill you. The benefit is that if they happen to capture you, they have to treat you as a POW.

And if you don't wear the uniform the rules are that you are not protected by the Geneva Convention. Historically the lawful practice has been summary execution for such war criminals and it is a precedent that kept warfare a bit more civilized than it would be otherwise. Advocates for habeas corpus for war criminals are advocates for barbarism.

>Courts need to draw that line, and in this case, as far as I can tell, it should have been easy.

Well one problem is they have no basis in law for doing that. And your personal sentiments have no basis in the law of armed conflict.

[Matthias]

Cool. So when the government of Iran picks you up on your vacation, declares you an enemy combatant of Iran, and throws you in prison for life, you won't expect anyone to complain, right? After all, every government must have the right to do that if ours does.

[David Gray]

>Cool. So when the government of Iran picks you up on your vacation, declares you an enemy combatant of Iran, and throws you in prison for life, you won't expect anyone to complain, right? After all, every government must have the right to do that if ours does.

If I'm firing on the Iranian armed forces while wearing civilian clothes, absolutely.

[David Gray]

Hey Matthias, how is life at "whatever.org"?

[Peter Gardner]

Weren't quite a few of them already released?

That sounds to me like the government admitting that some of these people were in the wrong place at the wrong time.

[David Gray]

>Weren't quite a few of them already released?

Yes and many have returned to killing...

[Joe Long]

What really worries me is how, since enemy guerillas apparently have all of the constitutional rights of a United States citizen, we have failed to allow these people to vote in our Presidential elections - and taken away their Second Amendment rights, as well. There is prima facie evidence of discrimination in the gender balance of the detainees, too - a Title 9 legal specialist should get involved.

I know I've said it before: combatants captured in civilian clothes have two traditional "rights". A blindfold, and a last cigarette. When you pick up a weapon as a partisan, you know that and accept it from the outset.

What arrogance, to deny these men the consumnation for which they so devoutly wished, and treat them like sissies; no wonder they get so enraged.

[Judy K. Warner]

>>>Presumed innocent until found guilty. Anything less is tyranny.<<<

It would be pretty hard to fight a battle on those terms. This is what our guys face in Iraq, especially, where they have to fight in neighborhoods where it is not always clear who the enemy is. This is what probably happened at Haditha, though I haven't followed the details of the case. A military action was carried out and it became a case of accusations of murder. Everybody but one has been acquitted so far, but think of the effect on those who have to fight.

[Joe Long]

In a war, the enemy need not be "guilty" to be imprisoned any more than he need be "guilty" to be killed on the battlefield. You don't shoot the (possibly brave and honorable) soldier in the enemy army to punish him for misdeeds; indeed there is a longstanding acknowledgement among soldier that fighting for "your side" is NOT criminal. Hence the Geneva conventions, honorable treatment of POWs even from the worst regimes (the Nazis...) and sometimes even BY the worst regimes (again, often, the Nazis - where Geneva-convention-signing enemies were concerned).

So, if they are prisoners-of-war, detention has no reflection on "guilt" or "innocence", merely on the misfortune of capture and the opposing belligerant's right to keep them from doing their duty on the battlefield. No hard feelings, mate, but "for you, the war is over." That's how it works with soldiers.

Of course, the Gitmo captures are NOT honorable soldiers with Geneva rights or any loyalty to - or concept of - the customs of lawful warfare, but how in the world that should give them MORE rights is beyond me.

And what disrespect to their own customs and cultures, to inflict our domestic notions of justice on them, to treat them as the very thing they have the most contempt for (an American citizen) - overseas, no less, not even on our own territory! How can you justify such rank cultural imperialism?!

[mark]

It seems to me that the meaning of a document is determined by the intent of the author or the desire of the interpreter. The meaning of the constitution now means what 5 of 9 justices say it means.

It also seems to me that the idea of the 'rule of law' has been changed. It used to mean that there was a 'law above the law.' In other words, an Old Testament prophet could confront the king and tell him that his rule was not absolute, his actions were contrary to God's law. We seem to have rejected the idea of natural law which under girded the idea of the 'rule of law' and returned to a more arbitrary view of law, that of 5 out of 9 supreme court justices.

The end result of both means that law will become more arbitrary and capricious as the judiciary seeks its version of utopia.

[Osborne]

Glenn Greenwald destroy's Yoo's argument here:

http://www.salon.com/opinion/greenwald/2008/06/17/yoo/index.html

[labrialumn]

We are fighting tribes and clans, and a religion. Their culture doesn't use uniforms, any more than did the colonial militias that played such a role in our own independence. It is (again) chicanery to claim that they are 'unlawful' - by what law? Theirs or ours? In the view of Great Britain, even our regulars were 'unlawful'.

We are dealing with human beings made in the image of God who are -accused- not proven, of having engaged in warfare against our troops. We should either treat them as enemy troops under the Geneva conventions, or else we should try them as civilians and find out if they are guilty or not guilty. There is no third condition.

I am deeply angered at the cavalier rejection of basic Christian and moral principles by alleged Christian conservatives in this matter.

Matthias, being less angered, said it better. As did Thomas Jefferson. And St. Martin.

David Grey, you are assuming the guilt of the accused in your argument. You must assume the innocence of the accused until they are proven guilty.

Mr. Long, unalienable rights granted by our Creator are not limited to American citizens. You seem to think that God only granted them to American citizens and then throw in voting in elections. There is a fallacy in your thinking.

Warner, I'm not saying anything so absurd as claiming our troops shouldn't return fire, and you know that. This sort of moveon.org-style propaganda tactic is despicable. I'm talking about captured individuals who are being denied their unalienable rights, and their civil and military rights, being treated as unpersons. This is a deep shame upon America. Someone shooting at you is very different than someone picked up on the street, or a Canadian or American citizen arrested in an airport in the US and sent to Syria to be tortured, since it isn't legal to do that here. Can you not see the diabolical evil in coming up with imaginary categories to make someone an unperson, deny them ALL rights, and come up with the legal fiction of not holding them on American soil (are we prepared to cede the naval base to Cuba?) so that we can violate all of their rights and all of our laws (and God's laws as well)?

[David Gray]

>David Grey, you are assuming the guilt of the accused in your argument. You must assume the innocence of the accused until they are proven guilty.

You are assuming this is a criminal matter...

[Judy K. Warner]

>>>Warner, I'm not saying anything so absurd as claiming our troops shouldn't return fire, and you know that. <<<

You may call me Judy. Or Mrs. Warner if you like. Even Your Majesty. What's with the "Warner"?

I am saying that we can't predict where this slippery slope will go. Who would have dreamed it would go here?

[Joe Long]

If what we are doing in holding these enemy combatants is wrong, then our national conscience ought to be pricked. I confess mine is so far quite impermeable on this issue; a few innocents might indeed be suffering a misfortune of war, but I have full faith that efforts over-and-above any reasonable standard have been made, and are being made, by the US military and intelligence services, to sort those poor souls out. Indeed we've already erred several times on the side of the detainees, freeing men we later faced again as active belligerants.

The Supreme Court of the United States has no jurisdiction what-so-ever over these foreign nationals, and their treatment, by all accounts I have read and believed, has been entirely humane - other than, of course, the thorny problem of whether and when to release them. The majority of the Supreme Court taking sides with Islamist detainees, simply looks to me like a temporary coalition of convenience of our foreign and domestic enemies.

By the way, if my previous rather strident post came across...stridently, let me clarify a bit: I do not argue these detainees should actually have been summarily shot. I am merely pointing out that the treatment they have recieved instead is merciful, not tyrannical.

[GL]

Labrialumn,

The detainees in Gitmo are not there because they are accused of committing crimes. They are their because they were caught while making war on the U.S. I frankly believe we should treat the detainees as if they were P.O.W.s and abide by the Geneva Conventions to the extent that is possible even though they do not fall under its terms.

P.O.W.s are not criminals and are not imprisoned as a means of punishment. They are imprisoned to prevent their continuing to make war and are generally held until the end of hostilities or until some agreement for their release is reached between the warring parties and then usually on the stipulation that they refrain from any acts of war against the nation which is holding them and from acts which aid or abet those who are making such war.

Applying habeas corpus to such detainees seems like a huge stretch even for the four liberals (Stevens, Ginsburg, Souter and Breyer) and the swinging justice (Kennedy), but then they never fail to amaze me.

[Kevin J Jones]

The editorial does not disclose that John Yoo is a major apologist for torture, himself having established many of the most controversial policies of the Bush administration during his time at the Department of Justice.

That the ruling opposes his policies is one reason for me to be less inclined to oppose this latest SCOTUS decision.

[James A. Altena]

There are so many fallacies in Labrialumn’s post that one scarcely knows where to begin. But here are a few starters.

Several folks have already addressed the point that those captured are not criminals but enemy combatants, and therefore habeus corpus does not apply to them. It also does not apply because that is a principle of domestic criminal law, not of international law governing the conduct of war.

“We are fighting tribes and clans, and a religion.”

No, we are fighting terrorists. Those terrorists as individuals may happen to be members of a tribe or clan, and may espouse (or claim to espouse) a particular religion. But we are not fighting tribes, clans, or a religion as our enemies.

“It is (again) chicanery to claim that they are “unlawful” – by what law? Theirs or ours?”

By neither one – rather by the articles of the international Geneva Convention treaties defining conduct of warfare and the nature and status of true combatants under. Perhaps Labrialumn might actually trouble himself to look at the text:

http://www.unhchr.ch/html/menu3/b/91.htm

particularly the definition of "Prisoners of War" in Article 4, which quickly demonstrates that, on numerous grounds, the enemies against which the U.S. is fighting do *not* qualify as lawful combatants with Geneva Convention rights. (E.g., no regularly formed military units, no identifying insignia as troops, no open carrying of weapons or display of combat unit flag, etc.)

Of course, Labrialumn’s entire objection here is utterly nonsensical, since he ignores the existence of the Geneva Convention here, only to invoke it in his next paragraph, and then later on his argument again ignores it and implicitly presumes that the U.S. constitution applies internationally to all persons, and not just to the United States and to persons within its borders.

“In the view of Great Britain, even our regulars were ‘unlawful’.”

An apples and organs comparison, since

a) the Geneva Convention did not exist in the 18th century at the time of the American Revolution,

b) our regular fought in uniform in organized military combat against similar clad and organized enemy soldiers, and were not terrorists attacking civilians, and

c) had the Geneva Convention been in force at that time, the British as signatories would have been required by it to regard American regulars as lawful combatants.

“We are dealing with human beings made in the image of God who are -accused- not proven, of having engaged in warfare against our troops. We should either treat them as enemy troops under the Geneva conventions, or else we should try them as civilians and find out if they are guilty or not guilty. There is no third condition.”

First, this demonstrates gross theological ignorance, since the issue here has *nothing* to do with denying our enemies to be made in the image and likeness of God.

Second, contrary to Labrialumn, there is indeed a third condition, duly defined by the Geneva Convention which he first ignored, then invoked, and now ignores again. The three statuses are: a) lawful combatants (Article 4); b) non-combatant civilians (Article 3), and c) unlawful combatants (persons not covered under those two articles). The first two are granted specific conventions under the Geneva Convention; the third are excluded from such protections by virtue of their violations of the laws of war (defined by the Hague Conventions of 1899 and 1907).

One might have hoped that Labrialumn would actually have read the articles of the Geneva Convention before spouting off his hopelessly ignorant nonsense. Instead, he demonstrates here the same degree of knowledge and understanding – none -- that on previous threads he has brought to the U.S. Constitution and manifold other subjects.

“You must assume the innocence of the accused until they are proven guilty.”

False. That is a principle of legal systems descended from Great Britain, but not most other nations, many of which explicitly assume the reverse. But in either case, this is not a matte of national law, but of international treaties. What Labrialumn does here is fallaciously assume that the U. S. Constitution is an instrument of international law, which it is not.

Furthermore, the U. S. Constitution does not guarantee the “unalienable rights” asserted in the Declaration of Independence – it only establishes a particular system of government and the specific rights enumerated in the Constitution, and those only to lawful residents within the United States. No system of government could possible guarantee to anyone something so vague as e.g. a right to “the pursuit of happiness.” Moreover, let Labrialumn to prove from Scripture that these rights are both guaranteed to man by the Creator and unalienable. However powerful and attractive the sentiment, there is no Scriptural warrant for it -- unless Labrialumn has on his own infallible episcopal authority expanded the canon of Scripture to include both the Declaration and the Constitution. Given that “the wages of sin is death,” and that “all men have sinned, and fall short of the glory of God,” there is not even an absolute right to life. To quote a certain statement, “There is a fallacy in your thinking.”

Finally, let Labrialumn cite a single instance in which a “Canadian or American citizen [was] arrested in an airport in the US and sent to Syria to be tortured.” Once again, persons who are not the citizens or legal residents of the U.S. cannot claim in foreign lands the rights accorded to those. For that matter, U.S. citizens abroad cannot claim those rights when arrested by foreign governments on foreign soil – they are subject to the laws of that nation. Once again, Labrialumn fallaciously seeks to impose the U. S. Constitution as a universal standard upon the entire world.

That is not to argue for or against either the Bush administration’s remanding of persons captured to foreign detention centers, or the mistreatment they may have received there. Nor is it in any way intended to devalue either the U. S. Constitution or the Declaration of Independence as among the Western world’s great and most cherished documents. Nor is it to take a position for (per GL’s comment) or against (per Joe Long’s comment) the idea that captured irregular combatants be treated as POWs under the Geneva Convention. (If they are, however, it is as a courtesy, not a right, as they have forfeited that right by their conduct.) It is simply to point out that such persons and their treatment do not come under the aegis of the U.S. Constitution.

The disturbing rationale of the Supreme Court majority to the contrary derives not from the Constitution itself, but from the notion stated in another recent Supreme Court decision that interpretation of the Constitution should not only be subject to a “living interpretation” standard of current mores rather than the actual text or authorial intent, but that such standard should explicitly be shaped with reference to laws of other nations. Given the outrage Labrialumn has expressed on other MC threads about erosion of the Constitution, judicial usurpation, etc., one might have expected and hoped that he would take a stand consistent with what he has expressed elsewhere, instead of being a proponent of one-world government.

But, alas, it has long been evident that facts and logic are not Labrialumn’s strong suits. That seems instead to be the sanctimonious self-righteousness judgmentalism he displays in making shrill accusations of “the cavalier rejection of basic Christian and moral principles by alleged Christian conservatives in this matter.”

[GL]

>>>If they are [treated as POWs under the Geneva Conventions, however], it is as a courtesy, not a right, as they have forfeited that right by their conduct.<<<

First, I do not believe it will be entirely possible to give the detainees the rights afforded under the Geneva Conventions because they are not fighting for a nation with which we are at war. We are not a war with a nation, but with a group of terrorists who are from many nations none of which is formerly at war with us. That creates some problems in applying the GCs.

Second, my primary reason for preferring our applying the GCs where possible is to take away some of the ammunition used by our enemies in the court of world opinion. That is, I am primarily concerned about what is in our best interests and only secondarily interested what is in the best interests of the detainees, though I do agree that they should be treated humanely.

[David Gray]

>That is, I am primarily concerned about what is in our best interests and only secondarily interested what is in the best interests of the detainees, though I do agree that they should be treated humanely.

Until it is time to execute them...

[Ethan C.]

I think it's important to sharply distinguish (as James did) between two separate questions at issue: (1) the validity of the Supreme Court's decision, and (2) the justice of the current American detainment policy.

One needn't wholeheartedly accept the current system in order to be critical of the court's decision. While I am inclined to agree with those who have condemned the decision as wanton legal invention (though, like most, I have not read the decision itself), I am also mindful of the way in which the excesses of the administration's policy have contributed to the decision's result.

My criticism of the current detainment system does not grow out of legal or moral objections, but rather from the pragmatic question of its results. It seems possible to me that the negative public reaction to the system -- and the political and legal distortions that have resulted -- may outweigh the benefits gained from pursuing the policy in its current form. I expect it would take a more expert mind than mine to establish whether the balance does indeed tilt that way, but I think it's a question very much worth considering.

In matters of war policy, there is a danger for both sides of a debate to become committed to their positions on principle rather than on practicality.

That the current system denies the detainees their "rights" would be no very strong reason to change it, no matter how true it might be. It would at best be an argument worthy of weight, but it would be far from the only factor worth considering, and far less important than the question of whether th system is vital to winning the war.

And on the other hand, the fact that the U.S. can legally continue its current regime without violating national or international laws is not much of an argument for the current regime. All that fact would indicate is that there is a certain set of consequences that the policy should not have (i.e. risking international opprobrium and domestic legal opposition).

Now I grant that it seems unfair for the current policy to be suffering some of those consequences in the absence of legal warrant, as though the rules had been secretly changed. And I'm in full agreement that such legal distortion should be condemned and opposed. But that condemnation is an issue wholly separate from whether the current detainment system is good or bad.

[Stuart Koehl]

>>>Second, my primary reason for preferring our applying the GCs where possible is to take away some of the ammunition used by our enemies in the court of world opinion. That is, I am primarily concerned about what is in our best interests and only secondarily interested what is in the best interests of the detainees, though I do agree that they should be treated humanely.<<<

Apparently you are unaware of the manner in which our more enlightened allies deal with terrorism suspects of their own. Both France and italy have (and have had for almost three decades) special "Terrorism Courts" run by civil judges with extraordinary powers to detain and hold those suspected of terrorism without lodging formal charges (Britain recently extended the period for which such persons may be detained), hold secret trials, employ evidence collected by covert means, hear witnesses in camera, allow hearsay evidence, conceal the identities of court officials and witnesses (after a few dozen of these got bumped off in retaliation for sending terrorists away, the wisdom of this move became apparent to all), and finally, to sentence terrorists to long prison terms without recourse to appeal. Since this goes way beyond the purview of the special military tribunals, one wonders what their grounds for complaint might be. It should also be noted that France has a long history of eliminating terrorist threats with (as the novelists put it) "extreme prejudice", but they like not to talk about that so much. As a result, both France and Italy have managed to avoid major terrorist incidents on their own soil for many years (as has, incidentally, the United States since 9/11).

Also, let's keep some perspective here. We are not talking about thousands of people being held at Guantonomo. There are at this moment something less than 220, all of whom have very extensive records of belonging to terrorist organizations or who were taken prisoner in the course of terrorist activities. The total population at the camp never really exceeded 1000, and for most of the period after 9/11 hovered below 400. Of those subsequently released, most were in fact guilty of something, but were deemed too small fish to fry. A number of them have subsequently been recaptured in either Iraq or Afghanistan, returned to their terrorist ways. This time we turned them over to the cognizant local authorities. Good luck to them.

The ones we have remaining in custody are indeed the baddest of the bad, and I fail to see how we could ever release them (though the example of Basil the Bulgar Slayer comes to mind), which leaves us with only two alternatives here; to incarcerate them for the rest of their natural lives, or to execute them. If we incarcerate them, they will remain a constant threat to our peace and security, not just because of the risk of escape, but because they will constantly be used as an excuse for other terrorists to conduct operations against us to win their release. If they are kept in prison, where would you like that prison to be? On the mainland of the U.S.? In your backyard? Think carefully here (I would vote for Eniwetok Atoll, where the radioactive residue of the atomic bomb tests might hasten the day of their departure from this world). For this reason, I favor speedy and fair trials followed by prompt and merciful executions. We were never under any obligation to take these people prisoner in any case, or to provide them with any other form of legal trial than a duly convened court martial followed by a march to a stake planted in front of a brick wall (though, to be fair, firing squad ought to be reserved for honorable soldiers, so perhaps a noose tied to a tall tree is more appropriate).

Laws of war, and civil law, are applied to legal combatants and noncombatants respectively. Neither applies to unlawful combatants in time of war. Those of you who object to the legal reasoning behind Roe v. Wade, and who decry the abortion regime built upon that decision, need to consider carefully how you could possibly consider supporting a decision of the Supreme Court based on equally spurious legal reasoning that likewise creates an entirely new set of rights for an entirely new privileged class of people, which in the long run will have just bad an effect on society.

I am not a fan of Andrew Jackson, but it would be nice to hear George W. Bush paraphrase him at this point: "Justice Kennedy has made his ruling. Now let him enforce it".

[GL]

>>>Apparently you are unaware of the manner in which our more enlightened allies deal with terrorism suspects of their own.<<<

And apparently you are unaware of the manner in which a hostile domestic and world public opinion harms our efforts. Perhaps Bush should have kept his eye on the ball, winning the war on terror, rather than taking actions which unnecessarily provoked angry opposition among those who supported our initial efforts in Afghanistan.

Successfully prosecuting a war involves more than winning on the battlefield; it also requires building and maintaining support for the long haul, both at home and abroad. On that score, President Bush has failed. Let us pray that his failure doesn't lead to complete surrender under a President Obama. If it does, however, Bush's policies will deserve much of the blame. That one may does not mean that he should.

Would that John McCain had won the GOP nomination in 2000. Perhaps we would have had a more measured and overall successful approach to prosecuting the war, not only on the ground, but on the battlefield of public opinion.

[labrialumn]

I will not engage with the mass of sophistry, chicanery and distortion of truth and arguments in favor of treating the accused as unpersons not protected by any law, or that our fellow citizens, some in the military, some in the intelligence community, are outside of our laws.

I believe that we ought to treat these accused as POWs in order to take the moral high ground. I also believe that they should be given fair trials to determine if they -were- enemy combatants, and release those who were not (some after three years of dehumanizing treatment and water torture were released as they were not involved). The FBI agents and others who refused to have anything to do with Gitmo or other such locations because of the inhumanity ought to be paid attention to.

I believe that we are far more likely to gain valid information from making use of the Stockholm Syndrome (probably too late now), and drugs which reduce inhibitions, rather than through water torture, offending their religion, and so forth.

I do think that the spirit of vengeance is behind the 'thinking' of those who assume that they are all guilty of being unlawful enemy combatants, and who desire their torture and execution.

I think that Mr. Altena needs to read the Declaration of Independence and its source, Lex Rex. I think he also should re-read his Bible since he seems to have not picked up a good deal in it.

Finally "as you treated the least of these My brethren, so also you treated Me"

and

"Do unto others as you would have them do unto you."

[David Gray]

>I will not engage with the mass of sophistry, chicanery and distortion of truth and arguments in favor of treating the accused as unpersons not protected by any law, or that our fellow citizens, some in the military, some in the intelligence community, are outside of our laws.

No, in this instance yours is a much more debased sophistry...

>I do think that the spirit of vengeance is behind the 'thinking' of those who assume that they are all guilty of being unlawful enemy combatants, and who desire their torture and execution.

Actually your approach will produce a much more barbaric approach to warfare...

[W.E.D. Godbold]

Labrialumn,
James' post would have been more charitable without the last paragraph. That said, his criticisms of the loose undergirdings of your "argument" are sound.

[James A. Altena]

Quite predictably, Labrialumn has not at all picked up on:

a) Scripture (he offers no texts to support his position, as was requested)
b) the Declaration of Independence (as Prof. Tighe and I pointed out on a previous thread, there is no evidence whatsoever for Schaeffer's groundless claim of its relation to "Lex Rex")
c) the arguments of those who take issue with him. (Instead, he merely reiterates his self-serving rhetoric instead of addressing the points raised, and loftily absolves himself of any need to respond to those. Of course, no-one here has suggested complete lawlessness, as opposed to pointing out the proper limitations of law and sovereignty).

In short, his response is the desperate last clause of the classic lawyer's axiom:

When the facts are against you, pound on the law;
When the law is against you, pound on the facts;
When both the facts and the law are both against you, pound on the table.

Finally, Labrialumn would do well to heed himself the two verses from Scripture he does quote, and which I have observed. I merely documented Labrialumn's ignorance and illogicity, and pointed out the self-righteous nature of his scurrilous attacks on others as being merely "alleged Christian conservatives." Had I made a similar public demonstration of ignorance and illogic, or implied that anyone who does not agree with me on this issue is not a Christian, I would likely expect to be hauled up short. As it is, in light of his own conduct here, Labrialumn's citation of these two verses falls into the category of Christ's warning to observe all that the Pharisees teach, but not what they do.

Of course, Labrialumn has now amplified his previous slurs with further accusations of his opponents as being guilty of "sophistry, chicanery," etc., and motivated by a "spirit of vengeance." {Documentable proof for this, please?} This of course is all of a piece with his frequent past attacks on MC of Touchstone editors such as Dr. Hutchens and Prof. Esolen as being guilty of heresy, gnosticism, etc. David Gray hits the nail squarely on the head in response.

Indeed, Labrialumn should be grateful here that others have not done unto him as he has done to them, but have treated him better than that. For, had they been literalists of his sort in application of "do unto others," in response to his jibe about "alleged Christian conservatives" they would needs have answered by likewise referring to him as an "alleged Christian." In not so doing, they have charitably extended to him what he denies to them.

[James Kabala]

I'm undecided so far on this particular issue, but I'm a little startled that no one except Mr. Jones has challenged the implicit premises in the original post that John Yoo is a disinterested observer and possibly even a man of the left. He was far from disinterested and was formerly a key official in the Bush Administration.

Since Mr. Jones was rather intemperate (not without reason)and not very detailed, I will link to a more-or-less neutral source:

http://en.wikipedia.org/wiki/John_Yoo

[Bill R]

I met John Yoo at a Federalist Society luncheon here in Los Angeles recently. Indeed Yoo was the speaker and sat at my table. We had a fair amount of time to talk with one another, and additionally I had the opportunity to hear him speak and to debate with a leftist professor who had been invited to challenge Yoo and the Patriot Act.

I must say that Yoo came across as articulate, informed, gracious, and charitable. I can't say the same of his opponent. Yoo has endured considerable abuse at Berkeley (what a surprise!), but seems to have maintained his composure. I was quite impressed with the man. This does not mean that Yoo is correct on all of these issues, but he is far from a leftist and is by no means a radical on either side of the political spectrum.

[Stuart Koehl]

>>>And apparently you are unaware of the manner in which a hostile domestic and world public opinion harms our efforts. <<<

Actually, a lot more aware of it than you. It's my job, you see. And, interestingly enough, despite all that people say they don't love us or approve of how we do things, over the past two years a funny thing has happened: pro-American governments have been elected in italy, Germany, France and Canada. Explain, please.

Perhaps you aren't quite old enough to remember the 1980s, but back then, the anti-Americanism in Europe was far more strident, extensive and better coordinated than anything you see today. if you get a few thousand people to show up to protest the U.S. treatment of terrorists, you're damned lucky. I can remember when more than 100,000 people turned out to protest the deployment of Ground-Launched Cruise Missiles at Burnham Common in the UK, or the deployment of Pershing IIs in Germany. Those were the good old days. Of course, the KGB was far better at turning out the useful idiots than al Qaeda, but you take what you can get.

Bottom line: the U.S. cannot be influenced by foreign public opinion to engage in activities contrary to its own interest. Moreover, it should not be coerced by adverse opinion to do something that the countries whose opinion you value so highly are unwilling to do themselves. When the French begin admitting terrorists into their civil courts (as opposed to the special Terrorism Court) and agree to extend to their detainees the same rights extended to criminal defendants (which, by the way, are significantly more constrained than those extended to criminal defendants in U.S. courts), then maybe I will take their bleatings seriously. In the meanwhile, please understand that any formal complaints made in those quarters are for domestic political consumption. Our allies are extremely glad that we take these people off the streets, so that they don't have to do it themselves.

[Stuart Koehl]

>>>Perhaps Bush should have kept his eye on the ball, winning the war on terror, rather than taking actions which unnecessarily provoked angry opposition among those who supported our initial efforts in Afghanistan.<<<

Stick to your knitting, Greg.

[David Gray]

>Perhaps you aren't quite old enough to remember the 1980s, but back then, the anti-Americanism in Europe was far more strident, extensive and better coordinated than anything you see today.

Funny what Soviet funding could achieve...

[Stuart Koehl]

>>>I believe that we ought to treat these accused as POWs in order to take the moral high ground. <<<

One of the stupidest things I have ever heard. You obviously have no understanding of how and why the Geneva Conventions were formulated, or what the effects of your suggestion would be. The Conventions go to great lengths to lay out the distinction between lawful and unlawful combatants for a very good reason, namely to allow the corollary distinction legitimate and illegitimate targets in time of war. Lawful combatants must wear uniforms, carry their weapons openly, follow a defined chain of command, and not deliberately target non-combatants.

In return for this degree of restraint and forbearance, they are extended certain rights and privileges, which include the right to humane treatment upon capture, exemption from torture or summary execution, and the right to communicate with and be interviewed by the International Red Cross. It's a reciprocal arrangement: play by the rules, be treated by the rules.

You suggest that regardless of whether people play by the rules, they be extended the same rights and privileges as those who do. The result is to erase at the stroke of a pen the foundation for observance of the laws of war altogether. For why should anyone bother to abide by the rules, if they get treated the same way whether they behave well or not?

The fact is, the laws of warfare have a very pragmatic, as opposed to idealistic basis: those who fight wars wish to constrain its scope and violence so as to keep it under control, and so that they have a reasonable expectation of being treated well in the event of capture. In other words, "You today, me tomorrow".

This is why, in the West at least, those who have failed to uphold their end of the bargain could expect severe consequences, both during conflict and in its aftermath. When the U.S. 82nd Airborne Division came across a number of paratroopers shot out of hand by 2 SS Panzer Division, it was thereafter open season on the Waffen SS: for the two months that the 82nd was on the line in Normady (June-July 1944), only a handful of SS prisoners were taken, despite the division facing off against SS troops for weeks on end. Draw your own conclusions.

The laws of war have always permitted the summary execution of enemy combatants found fighting in civilian clothing, or wearing false uniforms, or engaging in activities deemed contrary to the laws of war, such as killing or abusing civilians or legitimate prisoners of war; espionage; sabotage; or using weapons banned by various conventions.

Beyond that, soldiers have their own battlefield sense of fair play, which tends to make surrender even of legitimate combatants a sketchy proposition. Surrenders, for instance, must be properly timed. it will not due, for instance, for a machine gun crew to keep a company of soldiers pinned down for a couple of hours of sheer terror, only to surrender when the ammo runs out or their position gets flanked. At that point, it is simply too late, and the surrender is just not accepted ("Sorry, mate"). Certain types of enemy soldiers just aren't taken prisoner under any circumstances; snipers and flame thrower operators are particularly loathed, and are almost never taken prisoner.

It should also be pointed out that the disposition of prisoners is very much contingent on battlefield exigencies. For instance, if you take a prisoner, and to get him back to the POW holding area requires you to traverse terrain under enemy bombardment, well, then, the prisoner is just too inconvenient to look after, and invariably becomes shot.

One of my favorite stories involves a wounded Chinese Communist guerrilla leader taken prisoner by some Ghurkas during the Malayan insurgency of the 1950s. Ordered by their British officer to escort the prisoner back to HQ, about ten miles away on the other side of the hills, they duly departed, but arrived back at HQ some hours later carrying only a canvas bag, which they presented to their commander. Inside was the guerrilla leader's head. "What happened to him?", asked the CO. "Well, Sahib", explained the Ghurkas, "the man was very heavy, and he could not walk, and the hill was very steep".

[Stuart Koehl]

>>>I believe that we are far more likely to gain valid information from making use of the Stockholm Syndrome (probably too late now), and drugs which reduce inhibitions, rather than through water torture, offending their religion, and so forth.<<<

I will simply note, without further dignifying this inanity, that Labrialum knows absolutely nothing about how the United States military and intelligence services conduct their interrogations of enemy combatants, of both the lawful and unlawful varieties. Let's just say that almost every word in his statement is false, including "and" and "the".

[GL]

Whatever, Stuart. The fact is that not only has Bush's handling of the detainees harmed our case among foreign nations, it has harmed the case for the war at home, a war which I support. If the upshot of this is an Obama presidency and a withdraw from Iraq, then not observing a few niceties for the more sensitive will cost us dearly where it matters most. Extending a few protections to the detainee even if they were not entitled to them might prove a small price to pay given what is at stake.

Now, not only has Bush alienated possible allies, but he also risked the election to a peacenik and has a Supreme Court order mandating far more rights be given to the detainees than would have been required under the GC. Having a group of federal judges involved in this will be a nightmare. Bush's bad strategy here has yielded bitter fruit. I hope you weren't involved in forming this part of the plan.

[Stuart Koehl]

>>>he fact is that not only has Bush's handling of the detainees harmed our case among foreign nations, it has harmed the case for the war at home, a war which I support. <<<

Only because everything you (and most other people) know about how we handle enemy detainees is wrong. What else can one expect when the news media (and one political party) have established a dominant narrative absolutely divorced from the facts?

>>>Extending a few protections to the detainee even if they were not entitled to them might prove a small price to pay given what is at stake.<<<

They already get plenty, or have you not really examined the Military Tribunals act? The entire purpose of the act, which was passed with large bipartisan majorities in Congress, was precisely to keep terrorism cases of this sort OUT of the civil courts, where they become nothing more than propaganda forums for our enemies and their supporters, both foreign and domestic. As I said, there is absolutely NO precedent for extending Habeas Corpus to enemy combatants detained overseas, even after they are brought to the US. In fact, there is no precedent for extending Habeas Corpus to enemy combatants detained in the US, as the Nazi saboteur case of 1942 (the precedent acknowledged but effectively overturned by the recent Supreme Court decision--without actually overturning it, that being the level of incoherence in the decision) demonstrated. In fact, the Military Tribunals law under which the Nazi saboteurs were tried, convicted and executed was the basis for the present tribunal law. In 1942, the New York Times exulted in the trials and the execution, noting that the Nazis got a fair, just trial that extended to them more rights than those to which they were actually entitled by their status and situation. The new tribunals law extended to detainees significantly more rights than those provided in the 1942 act, yet somehow or other, this no longer meets muster, not with the Supreme Court (which upheld the 1942 act) or with the New York Times.

>>>Now, not only has Bush alienated possible allies, but he also risked the election to a peacenik and has a Supreme Court order mandating far more rights be given to the detainees than would have been required under the GC.<<<

I doubt very much that the way in which we are alleged to have treated detainees (for, as I said, almost everything you think you know about how we do treat them is wrong) has anything to do with how domestic public opinion feels about the war. The real issue was, and remains, whether we are winning and are resolved to win. When the war had no direction, opinion went south. Since the Surge, the general pacification of Iraq, and the implementation of government reforms in Iraq, opinion has rebounded. I don't think you could find very many Americans who give a rat's ass whether some solder flushed a Quran down a toilet (an incident that never happened, by the way, as anyone with a Quran and a toilet could have demonstrated), or whether terrorists get to protest their detentions in U.S. criminal courts. For most Americans, the bottom line has always been, "What are we doing?" and "Are we winning?" A candidate who comes flat out and says we will do whatever it takes to win, and convinces the people that he means it, will win the election. For, as Georgie Patton liked to say, "Americans love a winner, and will not tolerate a loser".

By the way, we're also winning in Afghanistan, so the "Iraq distracted us from Afghanistan" narrative is also false, first in pretending that Afghanistan was more important than Iraq (the real Schwerpunkt of the global war on terror), second in pretending that what we were doing in Iraq took resources away from Afghanistan, and finally in pretending that the Taliban and al Qaeda are winning in Afghanistan.

Good thing we didn't look at World War II with the same lens we apply to this war.

[GL]

>>>The real issue was, and remains, whether we are winning and are resolved to win.<<<

Well, as to the latter, I guess we will find out in November whether our fellow citizens have such a resolve. I hope so, but I am not at all sure that they do. And I believe the President and his administration have contributed to that potential lack of resolve by his and its tone deaf handling of the public relations side of the campaign.

[Stuart Koehl]

>>>And I believe the President and his administration have contributed to that potential lack of resolve by his and its tone deaf handling of the public relations side of the campaign.<<<

No doubt the President has been his usual tongue-tied self in explaining both the rationale for the war and our means of conducting it, but I fail to see what that has to do with extending Habeas Corpus to terrorists, something that the majority of Americans already oppose. As for making Europeans like us, hey, they didn't even like us under Boy Clinton. But they all want to come here.

Go figure.

[Stuart Koehl]

Greg believes that the actions of the Bush administration since 2001 have alienated our allies and undermined support for the war at home. I therefore commend to your attention the following article by Ruel Marc Gerecht, a former CIA case officer and one of the leading analysts and observers of the intelligence community and the war against terrorism. Read it carefully:

Are We Safer?
Yes, George W. Bush has made America more secure since 9/11.

by Reuel Marc Gerecht
06/30/2008, Volume 013, Issue 40

Are we safer now than we were before 9/11? Safer than before we invaded Iraq and toppled Saddam Hussein? Barack Obama insists we are not. Seeing Iraq as the crucible of our growing weakness, the Democratic nominee for president asserts that "we have now spent over $600 billion, thousands of lives lost, and we have not been made more safe .  .  . [and] al Qaeda's leadership is stronger than ever." According to the senator, moreover, George Bush's policies have also "made Iran stronger"; under his administration Iran has been "able to fund Hezbollah and poses the greatest threat to America and Israel and the Middle East in a generation." Joining Senator John McCain to the president, Obama assails the "Bush-McCain record on protecting this country" and the Arizona Republican for his intention "to double-down on" the "fear-mongering," "saber-rattling," and "failed policies" which endanger the nation.

Now, it is certainly true that the Bush administration in its conduct of both war and diplomacy has too often been inept. Even if the provincial elections in Iraq this fall and the national elections next winter establish a long-lasting means for Sunni-Shiite reconciliation, fortify the country's nascent democracy, and decisively prove the wisdom of the surge last January, President Bush's allowing Iraq to descend into hell in 2004 will likely haunt his legacy. Whether it is Abu Ghraib and Guantánamo, extraordinary rendition and the CIA's not-so-secret prisons, or the Patriot Act and the gargantuan Department of Homeland Security, there are many things that thoughtful critics could wish the United States had not done or had done better in the war on terrorism.

But Obama's charge isn't really about the arrogance, clumsiness, and lack of foresight that often characterize presidents and their administrations at war. For him, and many of his supporters, the Bush administration has uniquely and comprehensively degraded the nation's security, especially against the lethal threats emanating from the Middle East. America was much more secure under Hillary Clinton's husband--with the first attack on the World Trade Center, the truck bombing of Khobar Towers, the embassy bombings in Africa, the aborted attempt on the USS Sullivans in Aden, the other attempts at millennial bombings in the Middle East and the United States, and the near sinking of the USS Cole--on the road to 9/11.

Yet when we look at what George W. Bush has actually done, it's pretty hard not to credit him with massively improving America's security, both at home and abroad.

Before 9/11, America's counterterrorist capacities were, to put it politely, disorganized, unfocused, poorly staffed, and poorly run. (The exception was the ever-emotional and self-referential Richard Clarke, the former head of counterterrorism at the National Security Council, who should always get credit for being deadly serious about Islamic terrorism and Osama bin Laden.) The 9/11 Commission report is a chronicle of growing danger unmatched by bureaucratic seriousness or political will. And Bill Clinton, unlike George W. Bush, had nearly eight years to think about Islamic extremism. To President Clinton's credit and great shame, he intellectually understood the nature and horrific potential of bin Ladenism and al Qaeda--as he understood, and regularly tasked his senior officials to explain nationally, the dangers of an increasingly restless Saddam Hussein. Yet he could not summon the fortitude to strike devastatingly against al Qaeda and its Taliban protector or Iraq. Instead in 1998, we had "Operation Infinite Reach" in which cruise missiles were launched at a rock-and-mud Afghan village and a Sudanese pharmaceutical factory that may have had an al Qaeda or Iraqi chemical-weapons connection. Only in the fall of 1999 did a CIA team, timorously, land in Afghanistan's Panjshir Valley to meet, but offer no military aid to, the anti-Taliban commander Ahmed Shah Massoud.

Post 9/11, under President Bush, the situation changed drastically, as it certainly would have changed also under a President Gore. What is striking about Obama's Iraq-obsessed critique of the Bush presidency is his unwillingness to give any credit where credit is obviously due. Today in the mainstream press, with its pronounced anti-Bush reflexes, we are more likely to see articles and op-eds about America's unfair and labyrinthine visa system than about its effectiveness in our counterterrorism campaign. (And yes, the system is offensive, inflexible, and denies entry to many innocent, talented, and potentially pro-American Arabs, Pakistanis, and Iranians.) But if Obama wins in November, we can be assured that he will leave it in place. It is just too effective in complicating the operational planning of al Qaeda and other terrorist organizations.

As president, Obama would also likely leave untouched the intelligence and security liaison relationships energetically developed by the Bush administration. Listening to the Illinois senator's speeches about America's current place in the world, one would think because of our many transgressions, we no longer have helpful friends. But if one talks directly to European security and domestic-intelligence services (and my colleague Gary Schmitt and I have spent the last two years visiting these organizations to get a realistic picture of how western Europeans are approaching counterterrorism after 9/11), one cannot avoid the conclusion that America's counterterrorist cooperation with them has blossomed under Bush. It is closer and more amicable today than it was in March 2003 when we invaded Iraq, and the relationships then--especially with the French, our most zealous Iraq war antagonists--were already good.

President Bush would certainly not win a popularity contest anywhere in western Europe (he does a little better the closer one gets to Russia), but the effect of this anti-Bush sentiment on our security and intelligence cooperation has been minimal. Most Europeans don't like the term "global war on terror," seeing counterterrorism primarily as a police exercise and are uncomfortable in their post-Kantian way with bellicose language. (But the Europeans know that without American assistance, they would have great difficulty striking terrorists abroad, as they don't possess the military means to do so.) As was the case before 9/11, the Europeans occasionally express some anxiety about transatlantic cooperation that could lead to death-penalty charges in U.S. courts or military tribunals, but this is usually expressed as a mournful afterthought.

European internal security officers certainly don't dwell on Iraq. They believe that the present generation of Muslim holy warriors--and both European and American security officials regard these European jihadists as the most dangerous of the would-be terrorists out there--are more products of homegrown causes than any American action. European security officials, especially in Great Britain with its large Pakistani immigrant community, put much more emphasis upon the conflict in Afghanistan--the "good war" for most Democrats--as fueling lethal jihadism.

It is impossible to overstate the importance of Britain's domestic intelligence service, MI5, and France's internal security service, the Direction de la Surveillance du Territoire, to our fight against al Qaeda and its allied groups. If European-passport holding jihadists get past the European services, the odds are not great that the FBI is going to catch them on this side of the Atlantic. Although the Bureau is certainly a better counterterrorist outfit than it was before 9/11, that difference, given the threat and the enormous amount of money spent on homeland security since 2001, isn't inspiring. (Obama could fairly criticize the Bush administration and the Republican-controlled Congress for its post-9/11 handling of the FBI.)

Yet we can search in vain Obama's writings and speeches for serious commentary on Europe, let alone on Europe's essential role in America's defense against Islamic radicalism. Western Europe is arguably the most important arena for U.S. counterterrorist efforts against operationally active Islamic terrorist groups. (Intelligence sharing during the Cold War was nowhere near this intimate with the continental Europeans.) Obama is not alone in under-appreciating what the Europeans are doing for the United States. Focused on the failure of the continental Europeans to fight well--or often at all--in Afghanistan, the American Right tends to overlook their contribution to the larger battle against Islamic extremism. Given the accomplished Europeanists among Obama's advisers, however, it's hard not to suspect that the senator has assiduously been avoiding talking about the European-American counterterrorist partnership because it does not fit so easily into his Iraq-war-has-ruined-our-national-security, the-world-is-ashamed-of-us, al Qaeda-is-winning theme.

Obama insists that the Iraq war has seriously weakened us strategically. But how exactly is this so? According to the senator, the Iraq war caused us to take our eye off Afghanistan and our real enemy al Qaeda--the one in Afghanistan and Pakistan, not the branch in Iraq, which bin Laden constantly refers to, praises, and describes as fighting in the battle that will determine the fate of Islam. "These are the same guys [the Bush administration] who helped to engineer the distraction of the war in Iraq at a time when we could have pinned down the people who actually committed 9/11."

Yet, the Bush administration's mistakes in Afghanistan were not those of focus, but of battlefield tactics, will, and a longstanding, entirely bipartisan, confusion on how to deal with Pakistan. The same guiding lights who deployed too few troops to Iraq earlier sent too few troops unaggressively into Afghanistan. Who knows whether we could have caught or killed bin Laden and the Taliban leader, Mullah Omar, at the beginning of the Afghan war if we'd parachuted troops en masse into the flatlands adjacent to the Taliban's capital of Kandahar, where bin Laden often resided? Who knows whether we could have killed bin Laden at Tora Bora if General Tommy Franks had committed large numbers of Special Forces to the fight and not allowed allied Afghan troops to be the primary ground forces in the area? We certainly should have done these things. We were fighting on bin Laden's terrain.

If Al Gore had been president, would he have overruled General Franks's casualty-averse, Special Forces-on-horseback, airpower heavy approach to the Afghan war? It seems unlikely. Would the more dovish and less experienced Barack Obama have questioned and countermanded a ranking general?

Obama has repeatedly said that he would now deploy two additional brigades (roughly 8,000 men) to Afghanistan--a commendable "surge" of troops that is surely needed in the country, and about double the reinforcements so far sent by the Pentagon. But is this really a big part of answering the senator's constant complaint that the Bush administration took its "eye off" al Qaeda? A few thousand more troops in Afghanistan's southern provinces would diminish al Qaeda in Pakistan how? Does he mean that instead of stacking up a couple of hundred CIA case officers in the Green Zone in Baghdad, we should stack up these same men and women in Afghanistan, inside guarded compounds where their English-only abilities get further honed? (If Obama were to attack the Bush administration for its lack of zeal in the reformation of the CIA, especially the clandestine service, where the number of operatives who have any real knowledge of Afghanistan's languages and culture remains--according to case officers currently serving--scandalously small, he would be on firm ground.)

Increasing troop levels in Afghanistan will do little or nothing against al Qaeda in its primary training ground and headquarters: Pakistan. More troops will certainly help thwart the Taliban's ambitions to destabilize larger parts of Afghanistan. But to beat al Qaeda in Central Asia and the subcontinent, we must beat al Qaeda in Pakistan. And we are unlikely to do this anytime soon by opening up secular schools in the North-West Frontier Province (a commendable if unworkable idea of Obama's) or by launching occasional Special Forces strikes into al Qaeda-infested areas of Pakistan, another estimable if mild recommendation from the senator. Targeted assassinations and repeated military strikes against al Qaeda's camps and the affiliated Pakistani tribes can seriously damage the organization. The Bush administration has proven the possibilities of such tactics in Afghanistan and elsewhere by killing off or capturing probably upwards of 80 percent of al Qaeda's command structure and foot soldiers of 2001.

Which brings me to the question of whether Obama believes that with such losses al Qaeda is undiminished since 9/11, when bin Laden and Ayman al Zawahiri were living in the open and with ease dispatching emissaries. Many of the killed and captured holy warriors were skilled Westernized, globetrotting Arabs and Pakistanis. Al Qaeda is still recruiting and could do horrendous damage to the United States, but does Obama really think al Qaeda's recruitment efforts are "stronger" now after the world's principal security services have been focusing on the organization for seven years, and when well-known Islamists and the Arab media are seriously debating the ethics that allow young men and women to slaughter civilians in the name of Allah? Just read the increasingly whiny and apologetic speeches of bin Laden and Zawahiri since 2005. Note their current attempt to headline the Israeli-Palestinian conflict, which has solicited some derisory commentary from well-known fundamentalists. (In 2001 al Qaeda viewed Zionism as a subset of Western evil, generally not worthy of its loftiest polemics.) How in the world does Obama actually know that the incarceration and treatment of the 9/11 terrorists, which "destroyed our credibility when it comes to the rule of law .  .  . has given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims' "? Are Muslim militants really turning into jihadists because the premier infidel power didn't give Khalid Sheikh Mohammed habeas corpus rights? Does the senator really think that faithful Muslims would embrace the slaughter of innocents if the United States waterboarded him--an interrogation technique that is quite polite compared to the standard interrogative methods of the Arab, Pakistani, and Central Asian security services? Like much of the American left, the senator is imagining his own disgust in the "hearts and minds" of foreign Muslims. Isn't it a big push to suggest that any of this means that al Qaeda and its allied extremist groups committed to jihad against America are in a stronger position now than in 2001 and 2003?

After launching military strikes against al Qaeda elements in Pakistan, what would the Obama camp do that is so different from what the Bush administration has done or a McCain one would do? Would President Obama really cut off aid to the Pakistani military, a highly imperfect ally in the war on terror? One reason al Qaeda-directed or -inspired suicide bombings skyrocketed in Pakistan in 2007-08 is that the Pakistani government had been challenging the group and its local allies. Another reason is surely that al Qaeda's holy warriors now have great difficulty in attacking the United States and other Western targets, in large part thanks to the Bush administration's counterterrorist efforts and to those of Britain and France.

General Pervez Musharraf may have been fitful and fickle in how he conducted his anti-al Qaeda campaign, but he did earn al Qaeda's wrath. And al Qaeda violence in Pakistan, as in Iraq, appears to be slowly but surely working against the popularity of the organization and its local support, as superbly described in a recent essay, "The Unraveling," by Peter Bergen and Paul Cruickshank in the New Republic.

The increase in violence in Pakistan does not mean we are less safe; it means the Pakistanis are beginning to tackle the excruciatingly difficult problem of extirpating bin Ladenism from regions of the country where it put down deep roots. Jihadist sentiments are now widespread in Pakistan's Federally Administered Tribal Areas, the North-West Frontier Province, and even the Punjab, the critical geographic and cultural bridge to India. Reversing this growth will likely be an erratic, ugly process as Pakistan's reborn democracy responds to the widespread anger about the American presence in Afghanistan. To local eyes, America is up to no good, the Pashtun Taliban were better Pakistani allies than the current Afghan government with its many pro-Indian Tajiks. With the Taliban in power, the Americans were getting bombed, and Pakistanis weren't deluged with suicide-bombers.

Democratic Pakistan is working hard to reach a modus vivendi with the Taliban militias. If it does, Afghanistan and the Coalition forces will face renewed attack as Pashtuns increase their support of the multiheaded Taliban movement. But if they don't reach an understanding, which seems more and more likely given the intensifying militancy and ambition among the Pakistani Taliban, then democratic Pakistan and its angry army will likely combat the militants who provide al Qaeda sanctuary. This brutal process may immiserate Pakistan and produce small waves of jihadists trying to gain access to the West and attack Americans and Europeans. But this is progress even if Barack Obama, who rightly supports the strengthening of democracy in Pakistan, doesn't quite understand what's going on.

But back to Iraq, the supposed epicenter of our newly developed national weakness: Does Obama hear our European and Middle Eastern allies calling for the rapid withdrawal of U.S. forces from Iraq? (The definition of rapid is 16 months, the senator's stated timetable for a "gradual" withdrawal.) If so, he has acute hearing.

Once it became clear to Sunni Arabs that an American withdrawal would lead to the battlefield defeat of Iraq's Sunni Arab minority by Iraq's Shiite Arabs and Kurds, the desire to see the American troops leave Mesopotamia quieted down noticeably. Sunni Arabs are increasingly interested in the clout that might accrue to them through provincial elections in October 2008 and national elections before 2010. (It's amazing how military defeat focuses the mind on more peaceful paths to power.)

Are the emirates of the Persian Gulf or the Saudis asking the Americans to withdraw the Navy from the region? They could do so easily if so inclined. But they know that as long as the U.S. Navy stays, and the American will to use it remains steadfast, the Iranian regime's capacity to intimidate its neighbors remains a dream. Although the surge has so far had little effect on Obama and the Democratic party, its effect on the Middle East--on how Iraqis view us, on how all Arabs view us, and on how Iranians view Iraqis and Americans--has been enormous. We didn't run. We doubled-down. The Sunni Arab press and satellite TV channels are describing Iraq in more normal terms (it's hard for them as the country is full of Shiites, Kurds, and Americans) and is learning to deal, ever more calmly, with the hitherto bizarre situation of having Sunni Arab Iraqis say almost nice things about Americans.

Iraqi Shiites are sending missions to Tehran to complain about Iranian meddling in Iraq's internal affairs. Prime Minister Nuri al-Maliki's military headquarters in Basra, where he personally led the government's operations to secure the city, was shelled with Iranian-supplied weaponry, which, as U.S. Ambassador Ryan Crocker wryly remarked, no doubt focused the prime minister's attention on the Iranian problem. A tough, independent, sometimes irascible fellow, Maliki didn't look like he was enjoying his recent public audience in Tehran with Ali Khamenei, but he didn't buckle before the Iranian cleric, who wants to scuttle any basing agreement or defense pact between the United States and Iraq. After the meeting, Maliki reaffirmed his desire to see Washington and Baghdad sign a defense agreement. As the Washington Post put it, "This would seem to be an obvious U.S. gain in what, according to Senator Barack Obama .  .  . is the urgent task of countering Iran's attempt to dominate the Middle East." The Bush administration may have a difficult time getting a Status of Forces agreement passed through the Iraqi parliament, given how the issue rubs against Iraqi pride and the maximalist positions the Pentagon always initially takes in such negotiations. This is good. For the first time since the early 1950s, Iraqis are learning--and quickly--how to act as political adults. As Iraqi democracy gains strength, so will Iraqi pride and the ability of Iraqi leaders to make difficult compromises with the United States.

On the ground, the Shiite-led government in Baghdad is, slowly but surely, regaining control of regions of the country once dominated by lawless Shiite militias. The Shiite-led army is, slowly but surely, expanding its operations into Sunni regions of the country and encountering little opposition from armed Sunnis who once allied themselves to al Qaeda. Iraq's oldest Shiite nationalist party, the Dawa, to which the once belittled and now increasingly admired Maliki belongs, may well become the dominant Shiite political party after the national elections in 2009, further intensifying the "Iraqification" of the country's Shiite politics. The Dawa is hardly a bastion of pro-American sentiments, but it is increasingly a redoubt of Iraqi democrats who know that radical, armed Shiite youth are not a reliable political base. On both the Sunni and Shiite sides, older men are regaining the high ground.

The indefatigably anti-American Moktada al-Sadr, who has never shown much fondness for Iranians, is now "studying" in Iran. His political position is in flux and he is persona non grata at the religious schools in Najaf, Iraq's preeminent seat of Shiite education, where his father and his philosophically trailblazing father-in-law both gained their fame. Sadr is now employing the old Shiite belief in concealment or "occultation" as a political tactic. This may not work out as well for him as it did for the twelfth Imam, who is more revered today than when he vanished in the ninth century, or Ayatollah Ruhollah Khomeini, who became much more powerful exiled in Iraq and France than he had been preaching in Iran in the 1960s. The Iraqi provincial elections will let us know whether the Sadrists can hold their own, or whether the Dawa eats into Sadr's base of support. His personal charisma has certainly taken a hit as the surge has brought greater security to Baghdad's Shia community and eliminated the thuggery that came with Sadrist protection.

To the east in Iran, Mohammad Khatami, the former president, has publicly attacked his own government for "arming and training groups" for missions "in other countries where they wreak destruction and havoc." Hardcore members of the Iranian parliament have demanded that the intelligence ministry investigate Khatami for treason. Khatami, true to form, has quieted down, reaffirming this loyalty to the regime. But if he dared to voice this criticism publicly, we can be sure the senior mullahs of Qom are still saying it privately. (Qom is Iran's center of religious jurisprudence; its leaders have close ties to the divines in Najaf and often cool relations with the politicized clergy in Tehran.) In Sadr City and Basra, the Iranian regime has backed off its support of militant Shiite groups. It's a very good guess that Abd al Aziz al-Hakim, the leader of the Supreme Islamic Iraqi Council (which was founded in Tehran in 1982), is livid about the cash, weaponry, and training Iran's Revolutionary Guards Corps has given to Sadr's followers. Sadr and Hakim loathe each other. The Iranians surely know now they went too far in their attempt to radicalize the Iraqi Shia by encouraging internecine strife.

Obama would be correct in saying that the Iraq war offered clerical Iran an enormous opportunity to get itself into trouble, to unlearn a big lesson of the Iran-Iraq War: Arabism among the Iraqi Shia is real. The age-old Arab-Persian split in Mesopotamia can flair up suddenly, even among Iraqi Shia who have Iranian family members. In its history, the Iranian clerical regime has never had to deal with such a situation, where some of the most respected Shiite jurisprudents are in opposition and the Iranian ruling elite can neither shut these opponents down nor even criticize them too severely. Iraq's religious schools are recovering from the Hussein years and are again receiving students from Iran's most prestigious schools. Najaf will inevitably regain some of the centripetal eminence it had in the past. Najaf clerics were instrumental in both of Iran's 20th-century revolutions, and it wouldn't be surprising to see Najaf's disputatious clerics, both Iraqi and Iranian, rock the boat again in Iran (and in Lebanon). The Iraq war, with the gruesome al Qaeda campaign against both Shiites and Sunnis, has been the backdrop to a complex argument among devout Muslims about divinely sanctioned violence. The Iraqi Shiite religious establishment is not just waging an intellectual battle against the pretensions of Iran's theocracy, but also working with the elected Iraqi parliament and Sunni tribal leaders and anti-al Qaeda Sunni clerics to integrate religious ethics into law. Although most American liberals and conservatives now scoff at the idea, a religious, democratic Iraq could well be transformational for a region where virtually every government lacks legitimacy. In a Middle East that is always rough, corrupt, and illiberal, Iraq is potentially as revolutionary as American-liberated post-fascist Europe. Only now is the country really getting interesting. If democratic Iraq grows stronger--and we will have a pretty good idea of its strength with the coming provincial and national elections--and becomes a philosophical generator of anti-jihadist mores, the Iraqi people will have succeeded rather astonishingly.

When do we get to start asking whether the Iraq war, with its hard-won-however-imperfect democracy, might actually be a good thing, worth the American blood and treasure? If 85 percent of the Iraqis say it was worth the hellacious voyage, and the unelected Sunni Arab rulers of the region say it was not, might we not think with the former? If millions of Sunni, Shiite, and Kurdish Iraqis vote in the provincial elections, will Obama really want to say, one month before the U.S. presidential elections, that America's sojourn in Iraq has failed? If Iraq contributes to the current intellectual debates in the Muslim Middle East that seem to be diminishing the ideological appeal of bin Ladenism in Arab lands, might that mean that the bloodshed in Mesopotamia hasn't been a waste?

And speaking of Iran, Obama constantly asserts that the Islamic Republic has been the great beneficiary of America's invasion of Iraq, that things in the region would be so much better if Saddam Hussein were still in power. Leaving aside the issues of intra-Shiite friction and competition and the Muslim soul-searching partly provoked by the Iraq war, is Obama suggesting that the Middle East would be a safer place if Saddam were still with us and he, too, were again developing nuclear and biochemical weapons and could thereby "check" Iranian adventurism?

Clerical Iran's relationship with Syria was ironclad when Saddam was in power--it would not at all be surprising to discover that Syria's North Korean-designed breeder reactor under construction at Dayr az-Zawr was critically aided and approved by the Iranians before Saddam's fall. Saddam's savage aggressiveness--remember it?--was certainly one reason the mullahs became serious about developing nuclear weapons (the regime's conception of the Iranian nation as the cutting edge of anti-American, militant Islamic power was another). Damascus was taking a page from Saddam's and the mullahs' playbook: Nuclear weapons are an excellent investment for regimes who see their legitimacy tied directly to their ability to project intimidating force. A nuclear-armed Syrian-Iranian axis could unleash an enormous amount of trouble without fearing military or even economic retaliation from Western or other Middle Eastern states.

Does Obama approve or disapprove of Israel's preemptive strike on Dayr az-Zawr? Democratic senator Dianne Feinstein, a thoughtful dove, reluctantly praised the Israeli attack, which may well have retired Syria's nuclear-weapons program. Is this airstrike within the ballpark of the Illinois senator's idea of "tough diplomacy"? If so, would he then approve of an Israeli strike on Iran's nuclear facilities? His speeches and interviews certainly suggest that he views clerical Iran as a much more dangerous threat to America and Israel than Baathist Syria, whose nuclear facility may well have been developed with Iranian aid as part of a covert effort to develop an anti-American, nuclear-armed front in the Middle East. Are preemptive bombing raids okay if done by threatened foreigners? Would Obama have approved of a U.S.-led raid on Dayr az-Zawr? Or would he have described such an attack as unwarranted bellicosity that endangers the United States and the "peace process"? On September 25, 2004, Obama told the Chicago Tribune that "Launching some missile strikes into Iran is not the optimal position for us to be in" given the ongoing war in Iraq. "On the other hand, having a radical Muslim theocracy in possession of nuclear weapons is worse." Now that sounds a lot like John McCain's position on Iran, which Obama has described as counterproductive "saber-rattling."

It was the American invasion of Iraq that provoked the Europeans to get serious about their nuclear diplomacy with the mullahs in 2003. Has Obama noticed that as the threat of an American military strike against Tehran's bombmaking plants has faded so has the European resolve to punish the clerics with economy-crushing sanctions?

It just beggars the imagination to believe that Obama actually thinks that Ali Khamenei, Iran's prideful, virulently anti-American clerical overlord, would countenance a personal meeting with an American head of state. Obama has many advisers who served in the Clinton administration, and they have surely told him how unresponsive the clerical regime can be to earnest, friendly entreaties laced with the promise of big carrots. And the Clinton administration tried its hand at engagement when Mohammad Khatami was president, a cleric who will, at least furtively, shake a woman's hand. Over the last three years, Undersecretary of State Nicholas Burns, who was until his recent retirement the State Department's majordomo on Iran, was tireless in his efforts to build a united front against Tehran. If Obama really believes his team could do better, be "tougher" than Nick Burns, then he might perhaps explain how.

Whatever new strength Iran has in the region comes not from the American invasion of Iraq--or from Iran's relationship with its always troublesome 25-year-old Lebanese stepchild, Hezbollah--but from its nuclear-weapons program and the nefarious potential it bestows on a government that is willing, as Mohammad Khatami remarked, "to wreak destruction" beyond its borders. The Bush administration has failed to stop this program precisely because the vigorous diplomacy that Barack Obama advocates has not worked. Obama calls for "tough diplomacy," but most Europeans don't want biting sanctions. More eloquently than George Bush, Obama can ask the Europeans for cooperation, but does he really think he could rally the German industrial giant Siemens or the French oil company Total to abandon their Iranian projects because of his personal magnetism? How will he pressure Paris and Berlin to kill these investments? After his public statements, could he plausibly saber-rattle like President Bush, who before the recent National Intelligence Estimate cut his legs off had spooked certain quarters in Tehran with the possibility that he would do to the Iranians what the Israelis did to Saddam Hussein at Osirak and to the Syrians at Dayr az-Zawr? If Obama plans bigger carrots than the Bush administration and the European Union offered the Iranians to stop uranium enrichment, he might consider describing those carrots and to whom in Tehran they will be offered.

Perhaps Obama will just say that diplomacy isn't going to stop the clerical quest for a nuke, and he is unwilling to bomb the Iranian nuclear-weapons facilities because he really doesn't think a nuclear-armed clerical regime is that grave of a menace. It's an excellent bet this is what the senator really believes, although he appears determined not to say so. If he made such a statement now--or even just defined "tough diplomacy"--we could see a meaningful debate between the presidential nominees, assuming the Arizonan really thinks that the only thing worse than preemptive military strikes against Iran's nuclear facilities is a clerical regime with a bomb. Perhaps we would have unexpected harmony between the two men, in favor of either preemption or containment. In any case, such a discussion would certainly be more profound than what the Democratic party's choice to be president of the United States has given us so far in his quest to become commander in chief.

Reuel Marc Gerecht is a resident fellow at the American Enterprise Institute and a contributing editor to THE WEEKLY STANDARD.

© Copyright 2008, News Corporation, Weekly Standard, All Rights Reserved.

[Stuart Koehl]

Greg believes that the actions of the Bush administration since 2001 have alienated our allies and undermined support for the war at home. I therefore commend to your attention the following article by Ruel Marc Gerecht, a former CIA case officer and one of the leading analysts and observers of the intelligence community and the war against terrorism. Read it carefully:

Are We Safer?
Yes, George W. Bush has made America more secure since 9/11.

by Reuel Marc Gerecht
06/30/2008, Volume 013, Issue 40

Are we safer now than we were before 9/11? Safer than before we invaded Iraq and toppled Saddam Hussein? Barack Obama insists we are not. Seeing Iraq as the crucible of our growing weakness, the Democratic nominee for president asserts that "we have now spent over $600 billion, thousands of lives lost, and we have not been made more safe .  .  . [and] al Qaeda's leadership is stronger than ever." According to the senator, moreover, George Bush's policies have also "made Iran stronger"; under his administration Iran has been "able to fund Hezbollah and poses the greatest threat to America and Israel and the Middle East in a generation." Joining Senator John McCain to the president, Obama assails the "Bush-McCain record on protecting this country" and the Arizona Republican for his intention "to double-down on" the "fear-mongering," "saber-rattling," and "failed policies" which endanger the nation.

Now, it is certainly true that the Bush administration in its conduct of both war and diplomacy has too often been inept. Even if the provincial elections in Iraq this fall and the national elections next winter establish a long-lasting means for Sunni-Shiite reconciliation, fortify the country's nascent democracy, and decisively prove the wisdom of the surge last January, President Bush's allowing Iraq to descend into hell in 2004 will likely haunt his legacy. Whether it is Abu Ghraib and Guantánamo, extraordinary rendition and the CIA's not-so-secret prisons, or the Patriot Act and the gargantuan Department of Homeland Security, there are many things that thoughtful critics could wish the United States had not done or had done better in the war on terrorism.

But Obama's charge isn't really about the arrogance, clumsiness, and lack of foresight that often characterize presidents and their administrations at war. For him, and many of his supporters, the Bush administration has uniquely and comprehensively degraded the nation's security, especially against the lethal threats emanating from the Middle East. America was much more secure under Hillary Clinton's husband--with the first attack on the World Trade Center, the truck bombing of Khobar Towers, the embassy bombings in Africa, the aborted attempt on the USS Sullivans in Aden, the other attempts at millennial bombings in the Middle East and the United States, and the near sinking of the USS Cole--on the road to 9/11.

Yet when we look at what George W. Bush has actually done, it's pretty hard not to credit him with massively improving America's security, both at home and abroad.

Before 9/11, America's counterterrorist capacities were, to put it politely, disorganized, unfocused, poorly staffed, and poorly run. (The exception was the ever-emotional and self-referential Richard Clarke, the former head of counterterrorism at the National Security Council, who should always get credit for being deadly serious about Islamic terrorism and Osama bin Laden.) The 9/11 Commission report is a chronicle of growing danger unmatched by bureaucratic seriousness or political will. And Bill Clinton, unlike George W. Bush, had nearly eight years to think about Islamic extremism. To President Clinton's credit and great shame, he intellectually understood the nature and horrific potential of bin Ladenism and al Qaeda--as he understood, and regularly tasked his senior officials to explain nationally, the dangers of an increasingly restless Saddam Hussein. Yet he could not summon the fortitude to strike devastatingly against al Qaeda and its Taliban protector or Iraq. Instead in 1998, we had "Operation Infinite Reach" in which cruise missiles were launched at a rock-and-mud Afghan village and a Sudanese pharmaceutical factory that may have had an al Qaeda or Iraqi chemical-weapons connection. Only in the fall of 1999 did a CIA team, timorously, land in Afghanistan's Panjshir Valley to meet, but offer no military aid to, the anti-Taliban commander Ahmed Shah Massoud.

Post 9/11, under President Bush, the situation changed drastically, as it certainly would have changed also under a President Gore. What is striking about Obama's Iraq-obsessed critique of the Bush presidency is his unwillingness to give any credit where credit is obviously due. Today in the mainstream press, with its pronounced anti-Bush reflexes, we are more likely to see articles and op-eds about America's unfair and labyrinthine visa system than about its effectiveness in our counterterrorism campaign. (And yes, the system is offensive, inflexible, and denies entry to many innocent, talented, and potentially pro-American Arabs, Pakistanis, and Iranians.) But if Obama wins in November, we can be assured that he will leave it in place. It is just too effective in complicating the operational planning of al Qaeda and other terrorist organizations.

As president, Obama would also likely leave untouched the intelligence and security liaison relationships energetically developed by the Bush administration. Listening to the Illinois senator's speeches about America's current place in the world, one would think because of our many transgressions, we no longer have helpful friends. But if one talks directly to European security and domestic-intelligence services (and my colleague Gary Schmitt and I have spent the last two years visiting these organizations to get a realistic picture of how western Europeans are approaching counterterrorism after 9/11), one cannot avoid the conclusion that America's counterterrorist cooperation with them has blossomed under Bush. It is closer and more amicable today than it was in March 2003 when we invaded Iraq, and the relationships then--especially with the French, our most zealous Iraq war antagonists--were already good.

President Bush would certainly not win a popularity contest anywhere in western Europe (he does a little better the closer one gets to Russia), but the effect of this anti-Bush sentiment on our security and intelligence cooperation has been minimal. Most Europeans don't like the term "global war on terror," seeing counterterrorism primarily as a police exercise and are uncomfortable in their post-Kantian way with bellicose language. (But the Europeans know that without American assistance, they would have great difficulty striking terrorists abroad, as they don't possess the military means to do so.) As was the case before 9/11, the Europeans occasionally express some anxiety about transatlantic cooperation that could lead to death-penalty charges in U.S. courts or military tribunals, but this is usually expressed as a mournful afterthought.

European internal security officers certainly don't dwell on Iraq. They believe that the present generation of Muslim holy warriors--and both European and American security officials regard these European jihadists as the most dangerous of the would-be terrorists out there--are more products of homegrown causes than any American action. European security officials, especially in Great Britain with its large Pakistani immigrant community, put much more emphasis upon the conflict in Afghanistan--the "good war" for most Democrats--as fueling lethal jihadism.

It is impossible to overstate the importance of Britain's domestic intelligence service, MI5, and France's internal security service, the Direction de la Surveillance du Territoire, to our fight against al Qaeda and its allied groups. If European-passport holding jihadists get past the European services, the odds are not great that the FBI is going to catch them on this side of the Atlantic. Although the Bureau is certainly a better counterterrorist outfit than it was before 9/11, that difference, given the threat and the enormous amount of money spent on homeland security since 2001, isn't inspiring. (Obama could fairly criticize the Bush administration and the Republican-controlled Congress for its post-9/11 handling of the FBI.)

Yet we can search in vain Obama's writings and speeches for serious commentary on Europe, let alone on Europe's essential role in America's defense against Islamic radicalism. Western Europe is arguably the most important arena for U.S. counterterrorist efforts against operationally active Islamic terrorist groups. (Intelligence sharing during the Cold War was nowhere near this intimate with the continental Europeans.) Obama is not alone in under-appreciating what the Europeans are doing for the United States. Focused on the failure of the continental Europeans to fight well--or often at all--in Afghanistan, the American Right tends to overlook their contribution to the larger battle against Islamic extremism. Given the accomplished Europeanists among Obama's advisers, however, it's hard not to suspect that the senator has assiduously been avoiding talking about the European-American counterterrorist partnership because it does not fit so easily into his Iraq-war-has-ruined-our-national-security, the-world-is-ashamed-of-us, al Qaeda-is-winning theme.

Obama insists that the Iraq war has seriously weakened us strategically. But how exactly is this so? According to the senator, the Iraq war caused us to take our eye off Afghanistan and our real enemy al Qaeda--the one in Afghanistan and Pakistan, not the branch in Iraq, which bin Laden constantly refers to, praises, and describes as fighting in the battle that will determine the fate of Islam. "These are the same guys [the Bush administration] who helped to engineer the distraction of the war in Iraq at a time when we could have pinned down the people who actually committed 9/11."

Yet, the Bush administration's mistakes in Afghanistan were not those of focus, but of battlefield tactics, will, and a longstanding, entirely bipartisan, confusion on how to deal with Pakistan. The same guiding lights who deployed too few troops to Iraq earlier sent too few troops unaggressively into Afghanistan. Who knows whether we could have caught or killed bin Laden and the Taliban leader, Mullah Omar, at the beginning of the Afghan war if we'd parachuted troops en masse into the flatlands adjacent to the Taliban's capital of Kandahar, where bin Laden often resided? Who knows whether we could have killed bin Laden at Tora Bora if General Tommy Franks had committed large numbers of Special Forces to the fight and not allowed allied Afghan troops to be the primary ground forces in the area? We certainly should have done these things. We were fighting on bin Laden's terrain.

If Al Gore had been president, would he have overruled General Franks's casualty-averse, Special Forces-on-horseback, airpower heavy approach to the Afghan war? It seems unlikely. Would the more dovish and less experienced Barack Obama have questioned and countermanded a ranking general?

Obama has repeatedly said that he would now deploy two additional brigades (roughly 8,000 men) to Afghanistan--a commendable "surge" of troops that is surely needed in the country, and about double the reinforcements so far sent by the Pentagon. But is this really a big part of answering the senator's constant complaint that the Bush administration took its "eye off" al Qaeda? A few thousand more troops in Afghanistan's southern provinces would diminish al Qaeda in Pakistan how? Does he mean that instead of stacking up a couple of hundred CIA case officers in the Green Zone in Baghdad, we should stack up these same men and women in Afghanistan, inside guarded compounds where their English-only abilities get further honed? (If Obama were to attack the Bush administration for its lack of zeal in the reformation of the CIA, especially the clandestine service, where the number of operatives who have any real knowledge of Afghanistan's languages and culture remains--according to case officers currently serving--scandalously small, he would be on firm ground.)

Increasing troop levels in Afghanistan will do little or nothing against al Qaeda in its primary training ground and headquarters: Pakistan. More troops will certainly help thwart the Taliban's ambitions to destabilize larger parts of Afghanistan. But to beat al Qaeda in Central Asia and the subcontinent, we must beat al Qaeda in Pakistan. And we are unlikely to do this anytime soon by opening up secular schools in the North-West Frontier Province (a commendable if unworkable idea of Obama's) or by launching occasional Special Forces strikes into al Qaeda-infested areas of Pakistan, another estimable if mild recommendation from the senator. Targeted assassinations and repeated military strikes against al Qaeda's camps and the affiliated Pakistani tribes can seriously damage the organization. The Bush administration has proven the possibilities of such tactics in Afghanistan and elsewhere by killing off or capturing probably upwards of 80 percent of al Qaeda's command structure and foot soldiers of 2001.

Which brings me to the question of whether Obama believes that with such losses al Qaeda is undiminished since 9/11, when bin Laden and Ayman al Zawahiri were living in the open and with ease dispatching emissaries. Many of the killed and captured holy warriors were skilled Westernized, globetrotting Arabs and Pakistanis. Al Qaeda is still recruiting and could do horrendous damage to the United States, but does Obama really think al Qaeda's recruitment efforts are "stronger" now after the world's principal security services have been focusing on the organization for seven years, and when well-known Islamists and the Arab media are seriously debating the ethics that allow young men and women to slaughter civilians in the name of Allah? Just read the increasingly whiny and apologetic speeches of bin Laden and Zawahiri since 2005. Note their current attempt to headline the Israeli-Palestinian conflict, which has solicited some derisory commentary from well-known fundamentalists. (In 2001 al Qaeda viewed Zionism as a subset of Western evil, generally not worthy of its loftiest polemics.) How in the world does Obama actually know that the incarceration and treatment of the 9/11 terrorists, which "destroyed our credibility when it comes to the rule of law .  .  . has given a huge boost to terrorist recruitment in countries that say, 'Look, this is how the United States treats Muslims' "? Are Muslim militants really turning into jihadists because the premier infidel power didn't give Khalid Sheikh Mohammed habeas corpus rights? Does the senator really think that faithful Muslims would embrace the slaughter of innocents if the United States waterboarded him--an interrogation technique that is quite polite compared to the standard interrogative methods of the Arab, Pakistani, and Central Asian security services? Like much of the American left, the senator is imagining his own disgust in the "hearts and minds" of foreign Muslims. Isn't it a big push to suggest that any of this means that al Qaeda and its allied extremist groups committed to jihad against America are in a stronger position now than in 2001 and 2003?

After launching military strikes against al Qaeda elements in Pakistan, what would the Obama camp do that is so different from what the Bush administration has done or a McCain one would do? Would President Obama really cut off aid to the Pakistani military, a highly imperfect ally in the war on terror? One reason al Qaeda-directed or -inspired suicide bombings skyrocketed in Pakistan in 2007-08 is that the Pakistani government had been challenging the group and its local allies. Another reason is surely that al Qaeda's holy warriors now have great difficulty in attacking the United States and other Western targets, in large part thanks to the Bush administration's counterterrorist efforts and to those of Britain and France.

General Pervez Musharraf may have been fitful and fickle in how he conducted his anti-al Qaeda campaign, but he did earn al Qaeda's wrath. And al Qaeda violence in Pakistan, as in Iraq, appears to be slowly but surely working against the popularity of the organization and its local support, as superbly described in a recent essay, "The Unraveling," by Peter Bergen and Paul Cruickshank in the New Republic.

The increase in violence in Pakistan does not mean we are less safe; it means the Pakistanis are beginning to tackle the excruciatingly difficult problem of extirpating bin Ladenism from regions of the country where it put down deep roots. Jihadist sentiments are now widespread in Pakistan's Federally Administered Tribal Areas, the North-West Frontier Province, and even the Punjab, the critical geographic and cultural bridge to India. Reversing this growth will likely be an erratic, ugly process as Pakistan's reborn democracy responds to the widespread anger about the American presence in Afghanistan. To local eyes, America is up to no good, the Pashtun Taliban were better Pakistani allies than the current Afghan government with its many pro-Indian Tajiks. With the Taliban in power, the Americans were getting bombed, and Pakistanis weren't deluged with suicide-bombers.

Democratic Pakistan is working hard to reach a modus vivendi with the Taliban militias. If it does, Afghanistan and the Coalition forces will face renewed attack as Pashtuns increase their support of the multiheaded Taliban movement. But if they don't reach an understanding, which seems more and more likely given the intensifying militancy and ambition among the Pakistani Taliban, then democratic Pakistan and its angry army will likely combat the militants who provide al Qaeda sanctuary. This brutal process may immiserate Pakistan and produce small waves of jihadists trying to gain access to the West and attack Americans and Europeans. But this is progress even if Barack Obama, who rightly supports the strengthening of democracy in Pakistan, doesn't quite understand what's going on.

But back to Iraq, the supposed epicenter of our newly developed national weakness: Does Obama hear our European and Middle Eastern allies calling for the rapid withdrawal of U.S. forces from Iraq? (The definition of rapid is 16 months, the senator's stated timetable for a "gradual" withdrawal.) If so, he has acute hearing.

Once it became clear to Sunni Arabs that an American withdrawal would lead to the battlefield defeat of Iraq's Sunni Arab minority by Iraq's Shiite Arabs and Kurds, the desire to see the American troops leave Mesopotamia quieted down noticeably. Sunni Arabs are increasingly interested in the clout that might accrue to them through provincial elections in October 2008 and national elections before 2010. (It's amazing how military defeat focuses the mind on more peaceful paths to power.)

Are the emirates of the Persian Gulf or the Saudis asking the Americans to withdraw the Navy from the region? They could do so easily if so inclined. But they know that as long as the U.S. Navy stays, and the American will to use it remains steadfast, the Iranian regime's capacity to intimidate its neighbors remains a dream. Although the surge has so far had little effect on Obama and the Democratic party, its effect on the Middle East--on how Iraqis view us, on how all Arabs view us, and on how Iranians view Iraqis and Americans--has been enormous. We didn't run. We doubled-down. The Sunni Arab press and satellite TV channels are describing Iraq in more normal terms (it's hard for them as the country is full of Shiites, Kurds, and Americans) and is learning to deal, ever more calmly, with the hitherto bizarre situation of having Sunni Arab Iraqis say almost nice things about Americans.

Iraqi Shiites are sending missions to Tehran to complain about Iranian meddling in Iraq's internal affairs. Prime Minister Nuri al-Maliki's military headquarters in Basra, where he personally led the government's operations to secure the city, was shelled with Iranian-supplied weaponry, which, as U.S. Ambassador Ryan Crocker wryly remarked, no doubt focused the prime minister's attention on the Iranian problem. A tough, independent, sometimes irascible fellow, Maliki didn't look like he was enjoying his recent public audience in Tehran with Ali Khamenei, but he didn't buckle before the Iranian cleric, who wants to scuttle any basing agreement or defense pact between the United States and Iraq. After the meeting, Maliki reaffirmed his desire to see Washington and Baghdad sign a defense agreement. As the Washington Post put it, "This would seem to be an obvious U.S. gain in what, according to Senator Barack Obama .  .  . is the urgent task of countering Iran's attempt to dominate the Middle East." The Bush administration may have a difficult time getting a Status of Forces agreement passed through the Iraqi parliament, given how the issue rubs against Iraqi pride and the maximalist positions the Pentagon always initially takes in such negotiations. This is good. For the first time since the early 1950s, Iraqis are learning--and quickly--how to act as political adults. As Iraqi democracy gains strength, so will Iraqi pride and the ability of Iraqi leaders to make difficult compromises with the United States.

On the ground, the Shiite-led government in Baghdad is, slowly but surely, regaining control of regions of the country once dominated by lawless Shiite militias. The Shiite-led army is, slowly but surely, expanding its operations into Sunni regions of the country and encountering little opposition from armed Sunnis who once allied themselves to al Qaeda. Iraq's oldest Shiite nationalist party, the Dawa, to which the once belittled and now increasingly admired Maliki belongs, may well become the dominant Shiite political party after the national elections in 2009, further intensifying the "Iraqification" of the country's Shiite politics. The Dawa is hardly a bastion of pro-American sentiments, but it is increasingly a redoubt of Iraqi democrats who know that radical, armed Shiite youth are not a reliable political base. On both the Sunni and Shiite sides, older men are regaining the high ground.

The indefatigably anti-American Moktada al-Sadr, who has never shown much fondness for Iranians, is now "studying" in Iran. His political position is in flux and he is persona non grata at the religious schools in Najaf, Iraq's preeminent seat of Shiite education, where his father and his philosophically trailblazing father-in-law both gained their fame. Sadr is now employing the old Shiite belief in concealment or "occultation" as a political tactic. This may not work out as well for him as it did for the twelfth Imam, who is more revered today than when he vanished in the ninth century, or Ayatollah Ruhollah Khomeini, who became much more powerful exiled in Iraq and France than he had been preaching in Iran in the 1960s. The Iraqi provincial elections will let us know whether the Sadrists can hold their own, or whether the Dawa eats into Sadr's base of support. His personal charisma has certainly taken a hit as the surge has brought greater security to Baghdad's Shia community and eliminated the thuggery that came with Sadrist protection.

To the east in Iran, Mohammad Khatami, the former president, has publicly attacked his own government for "arming and training groups" for missions "in other countries where they wreak destruction and havoc." Hardcore members of the Iranian parliament have demanded that the intelligence ministry investigate Khatami for treason. Khatami, true to form, has quieted down, reaffirming this loyalty to the regime. But if he dared to voice this criticism publicly, we can be sure the senior mullahs of Qom are still saying it privately. (Qom is Iran's center of religious jurisprudence; its leaders have close ties to the divines in Najaf and often cool relations with the politicized clergy in Tehran.) In Sadr City and Basra, the Iranian regime has backed off its support of militant Shiite groups. It's a very good guess that Abd al Aziz al-Hakim, the leader of the Supreme Islamic Iraqi Council (which was founded in Tehran in 1982), is livid about the cash, weaponry, and training Iran's Revolutionary Guards Corps has given to Sadr's followers. Sadr and Hakim loathe each other. The Iranians surely know now they went too far in their attempt to radicalize the Iraqi Shia by encouraging internecine strife.

Obama would be correct in saying that the Iraq war offered clerical Iran an enormous opportunity to get itself into trouble, to unlearn a big lesson of the Iran-Iraq War: Arabism among the Iraqi Shia is real. The age-old Arab-Persian split in Mesopotamia can flair up suddenly, even among Iraqi Shia who have Iranian family members. In its history, the Iranian clerical regime has never had to deal with such a situation, where some of the most respected Shiite jurisprudents are in opposition and the Iranian ruling elite can neither shut these opponents down nor even criticize them too severely. Iraq's religious schools are recovering from the Hussein years and are again receiving students from Iran's most prestigious schools. Najaf will inevitably regain some of the centripetal eminence it had in the past. Najaf clerics were instrumental in both of Iran's 20th-century revolutions, and it wouldn't be surprising to see Najaf's disputatious clerics, both Iraqi and Iranian, rock the boat again in Iran (and in Lebanon). The Iraq war, with the gruesome al Qaeda campaign against both Shiites and Sunnis, has been the backdrop to a complex argument among devout Muslims about divinely sanctioned violence. The Iraqi Shiite religious establishment is not just waging an intellectual battle against the pretensions of Iran's theocracy, but also working with the elected Iraqi parliament and Sunni tribal leaders and anti-al Qaeda Sunni clerics to integrate religious ethics into law. Although most American liberals and conservatives now scoff at the idea, a religious, democratic Iraq could well be transformational for a region where virtually every government lacks legitimacy. In a Middle East that is always rough, corrupt, and illiberal, Iraq is potentially as revolutionary as American-liberated post-fascist Europe. Only now is the country really getting interesting. If democratic Iraq grows stronger--and we will have a pretty good idea of its strength with the coming provincial and national elections--and becomes a philosophical generator of anti-jihadist mores, the Iraqi people will have succeeded rather astonishingly.

When do we get to start asking whether the Iraq war, with its hard-won-however-imperfect democracy, might actually be a good thing, worth the American blood and treasure? If 85 percent of the Iraqis say it was worth the hellacious voyage, and the unelected Sunni Arab rulers of the region say it was not, might we not think with the former? If millions of Sunni, Shiite, and Kurdish Iraqis vote in the provincial elections, will Obama really want to say, one month before the U.S. presidential elections, that America's sojourn in Iraq has failed? If Iraq contributes to the current intellectual debates in the Muslim Middle East that seem to be diminishing the ideological appeal of bin Ladenism in Arab lands, might that mean that the bloodshed in Mesopotamia hasn't been a waste?

And speaking of Iran, Obama constantly asserts that the Islamic Republic has been the great beneficiary of America's invasion of Iraq, that things in the region would be so much better if Saddam Hussein were still in power. Leaving aside the issues of intra-Shiite friction and competition and the Muslim soul-searching partly provoked by the Iraq war, is Obama suggesting that the Middle East would be a safer place if Saddam were still with us and he, too, were again developing nuclear and biochemical weapons and could thereby "check" Iranian adventurism?

Clerical Iran's relationship with Syria was ironclad when Saddam was in power--it would not at all be surprising to discover that Syria's North Korean-designed breeder reactor under construction at Dayr az-Zawr was critically aided and approved by the Iranians before Saddam's fall. Saddam's savage aggressiveness--remember it?--was certainly one reason the mullahs became serious about developing nuclear weapons (the regime's conception of the Iranian nation as the cutting edge of anti-American, militant Islamic power was another). Damascus was taking a page from Saddam's and the mullahs' playbook: Nuclear weapons are an excellent investment for regimes who see their legitimacy tied directly to their ability to project intimidating force. A nuclear-armed Syrian-Iranian axis could unleash an enormous amount of trouble without fearing military or even economic retaliation from Western or other Middle Eastern states.

Does Obama approve or disapprove of Israel's preemptive strike on Dayr az-Zawr? Democratic senator Dianne Feinstein, a thoughtful dove, reluctantly praised the Israeli attack, which may well have retired Syria's nuclear-weapons program. Is this airstrike within the ballpark of the Illinois senator's idea of "tough diplomacy"? If so, would he then approve of an Israeli strike on Iran's nuclear facilities? His speeches and interviews certainly suggest that he views clerical Iran as a much more dangerous threat to America and Israel than Baathist Syria, whose nuclear facility may well have been developed with Iranian aid as part of a covert effort to develop an anti-American, nuclear-armed front in the Middle East. Are preemptive bombing raids okay if done by threatened foreigners? Would Obama have approved of a U.S.-led raid on Dayr az-Zawr? Or would he have described such an attack as unwarranted bellicosity that endangers the United States and the "peace process"? On September 25, 2004, Obama told the Chicago Tribune that "Launching some missile strikes into Iran is not the optimal position for us to be in" given the ongoing war in Iraq. "On the other hand, having a radical Muslim theocracy in possession of nuclear weapons is worse." Now that sounds a lot like John McCain's position on Iran, which Obama has described as counterproductive "saber-rattling."

It was the American invasion of Iraq that provoked the Europeans to get serious about their nuclear diplomacy with the mullahs in 2003. Has Obama noticed that as the threat of an American military strike against Tehran's bombmaking plants has faded so has the European resolve to punish the clerics with economy-crushing sanctions?

It just beggars the imagination to believe that Obama actually thinks that Ali Khamenei, Iran's prideful, virulently anti-American clerical overlord, would countenance a personal meeting with an American head of state. Obama has many advisers who served in the Clinton administration, and they have surely told him how unresponsive the clerical regime can be to earnest, friendly entreaties laced with the promise of big carrots. And the Clinton administration tried its hand at engagement when Mohammad Khatami was president, a cleric who will, at least furtively, shake a woman's hand. Over the last three years, Undersecretary of State Nicholas Burns, who was until his recent retirement the State Department's majordomo on Iran, was tireless in his efforts to build a united front against Tehran. If Obama really believes his team could do better, be "tougher" than Nick Burns, then he might perhaps explain how.

Whatever new strength Iran has in the region comes not from the American invasion of Iraq--or from Iran's relationship with its always troublesome 25-year-old Lebanese stepchild, Hezbollah--but from its nuclear-weapons program and the nefarious potential it bestows on a government that is willing, as Mohammad Khatami remarked, "to wreak destruction" beyond its borders. The Bush administration has failed to stop this program precisely because the vigorous diplomacy that Barack Obama advocates has not worked. Obama calls for "tough diplomacy," but most Europeans don't want biting sanctions. More eloquently than George Bush, Obama can ask the Europeans for cooperation, but does he really think he could rally the German industrial giant Siemens or the French oil company Total to abandon their Iranian projects because of his personal magnetism? How will he pressure Paris and Berlin to kill these investments? After his public statements, could he plausibly saber-rattle like President Bush, who before the recent National Intelligence Estimate cut his legs off had spooked certain quarters in Tehran with the possibility that he would do to the Iranians what the Israelis did to Saddam Hussein at Osirak and to the Syrians at Dayr az-Zawr? If Obama plans bigger carrots than the Bush administration and the European Union offered the Iranians to stop uranium enrichment, he might consider describing those carrots and to whom in Tehran they will be offered.

Perhaps Obama will just say that diplomacy isn't going to stop the clerical quest for a nuke, and he is unwilling to bomb the Iranian nuclear-weapons facilities because he really doesn't think a nuclear-armed clerical regime is that grave of a menace. It's an excellent bet this is what the senator really believes, although he appears determined not to say so. If he made such a statement now--or even just defined "tough diplomacy"--we could see a meaningful debate between the presidential nominees, assuming the Arizonan really thinks that the only thing worse than preemptive military strikes against Iran's nuclear facilities is a clerical regime with a bomb. Perhaps we would have unexpected harmony between the two men, in favor of either preemption or containment. In any case, such a discussion would certainly be more profound than what the Democratic party's choice to be president of the United States has given us so far in his quest to become commander in chief.

Reuel Marc Gerecht is a resident fellow at the American Enterprise Institute and a contributing editor to THE WEEKLY STANDARD.

© Copyright 2008, News Corporation, Weekly Standard, All Rights Reserved.

[GL]

>>>Are We Safer?
Yes, George W. Bush has made America more secure since 9/11.<<<

Stuart,

I don't doubt it. I do doubt that we will be as safe come 12:01 p.m. on January 20, 2009 and I believe Bush's cowboying will be a big reason for that. I am not questioning his underlying strategy; I am questioning his not doing a few things to make himself appear more presidential and less like a John Wayne character. Part of that would have been applying the GCs to the detainees even if they do not qualify for such treatment. Now, not only has the Court extended habeas corpus to these men, but much of the country wants "change."

I hope I am wrong and John McCain takes the oath come January 20, but the most recent polls show that he is 15 points down. Obama is doing all he can to tie McCain to the unpopular Bush. Again, building and maintaining public support is an essential part of winning a long war. Bush appears to have blown that essential element.

[David Gray]

>Part of that would have been applying the GCs to the detainees even if they do not qualify for such treatment.

I have to disagree. Rewarding criminal behaviour sends the wrong message. But they shouldn't have frittered things away. Arguably the bulk of the detainees in Guantanamo should never have left the field of battle. Find three officers, confirm the criminals were not wearing uniforms or distinguishing badges and then execute them. The few that have real intel value should not have been kept in a place that was in the public eye. IMHO.

[Judy K. Warner]

Bush has always understood that the media will distort everything he does and says. He decided to deal with this by not dealing with it. I agree with Greg that this has been a terrible mistake. Bush is not the best spokeman for his own cause, but he could have found better spokesmen and used them to reach the public. Instead, he was so negligent as to allow the incompetent Scott McClellan to be his representative to the media, and did not employ other means of public outreach. This seems contrary to his nature, which is to fight back when attacked.

As for the 15 points down, it means absolutely nothing at this stage of the game. Candidates have come back from far larger gaps than this. The media are in love with Obama, and this may not continue at such a frenetic level as his faults and his profound ignorance of almost everything become apparent.

[Stuart Koehl]

Um, I saw a set of polls taken on Friday, and McCain and Obama are in a statistical tie. Obama bounce? What bounce?

[Judy K. Warner]

You're probably right, Stuart. National Review's Corner is reporting "...not a single other poll has Obama up by anything more than six. That's quite the outlier. And Newsweek's methodology here seems highly suspect — 1010 people polled, and the bulk of that is 896 registered voters, comprised of 324 Democrats vs.231 Republicans, with the remainder indpendent."

[Stuart Koehl]

I was reading a Scott Adams book in the airport a week ago, and came to a chapter on opinion polls, which went something like this:

Ever notice that polling groups go out of their way to find the stupidest people on the face of the earth? This is called a "representative sample". . . The only thing worse than a moron with an opinion is a lot of morons with opinions. Opinion polls should be banned because they only confirm stupid people in the stupidity of their own opinions.

[Rob G]

I sincerely hope that McCain, at least, shuns negative ads. That's part of what got Santorum killed here in Pa.

[Stuart Koehl]

>>>I sincerely hope that McCain, at least, shuns negative ads. That's part of what got Santorum killed here in Pa.<<<

Everybody says they hate negative ads, but in fact, they work, are a tradition in American politics going back to the election of 1800, and are absolutely necessary for the people to understand who the candidates are and the ideas for which they stand. As Harry Truman said, If you can't stand the heat. . .

Unfortunately, the working definition of "negative ads" in the United States today is "a conservative shows a liberal saying something he wishes he hadn't said with a camera rolling". In other words, when a conservative tells the truth about a liberal, it's negative campaigning. When a liberal lies through his teeth about a conservative, that's a legitimate opinion.

[Rob G]

Stuart, I don't mean ads which involve truth-telling about one's opponent. I mean ads which have little or no accurate content and are instead subtle or not-so-subtle ad hominem attacks.

And I agree that there is a double standard re: libs vs. cons, but that this doesn't mean that we need to stoop to their level on such things.

[Stuart Koehl]

>>>Stuart, I don't mean ads which involve truth-telling about one's opponent. I mean ads which have little or no accurate content and are instead subtle or not-so-subtle ad hominem attacks.<<<

Also part of the great American tradition. I didn't see anything put out by Santorum that could qualify by your definition, in any case.

>>>And I agree that there is a double standard re: libs vs. cons, but that this doesn't mean that we need to stoop to their level on such things.<<<

I am afraid that you do . . . if you want to win. "War is policy continued by other means"--but the reverse is also true: politics is war continued by other means. In war, it's the ruthless who win. Same thing in politics. This may require committing the sin of not being nice.

[Stuart Koehl]

I like this one:

Anytime I see a Newsweek poll that shows a big lead for a Democrat, I am always reminded of Brit Hume’s comments back in 2000:

“[B]y the way, with regard to the Newsweek poll, I think we now are beginning to know why The Washington Post, which owns Newsweek, does its polling with "ABC NEWS" and leaves Newsweek to do its — I think if Newsweek took a poll of the Bush family, Gore would win.

(Fox News Sunday, September 10, 2000)

[DGP]

>> I didn't see anything put out by Santorum that could qualify by your definition, in any case.

Sen. Santorum did flirt with that sort of thing, and still does. It leaves a bad taste in my mouth when I read his overly tendentious interpretations of liberals. It's probably very effective at fundraising, but leads to very crude and unrealistic portraits of one's political enemies. Mr. Altena would probably again call me a quibbler, but I prefer the habit of giving one's interlocutors the most sympathetic reading possible, or at least of attributing to them maximal rationality. I don't always live by the principle, but it seems to me the best way to ascertain the whole truth in a dispute.

[Judy K. Warner]

It's difficult to know what to do when the other side has no interest at all in ascertaining the truth, but aims only to destroy you. If you've ever read what the left has said about Rick Santorum you might have a modicum of sympathy for his flirtation with that sort of thing. In no way could they be called interlocutors; "venomous enemies" might be an approximate description. We have just had a discussion of what President Bush should have done to gain more public support in his prosecution of the war. His habit of giving his enemies the most sympathetic reading possible worked to his great disadvantage and has ended up increasing the danger to our country.

[GL]

>>>Instead, he was so negligent as to allow the incompetent Scott McClellan to be his representative to the media, and did not employ other means of public outreach.<<<

His doing so really is a mystery. Tony Snow was a much better spokesman, but, alas, it was too late in the game when the switch was made and then cancer hit. McClellan is a creep of the first water and was obviously incompetent well before we learned he is also a back stabber.

[Stuart Koehl]

>>>McClellan is a creep of the first water and was obviously incompetent well before we learned he is also a back stabber.<<<

In Washington, a friend is someone who stabs you in the chest.

[DGP]

>>If you've ever read what the left has said about Rick Santorum you might have a modicum of sympathy for his flirtation with that sort of thing.

Oh, but I have and I do. I do not really expect my enemies to be converted, though it sometimes happens. But for the sake of those eavesdropping, it seems to me more effective to counter the *best* of one's enemies' arguments, rather than characterize them in the worst way. It may not be practical in that it doesn't fill political coffers, but it's far more educational. From this kind of argumentation people learn why "choice" is not the best way to understand abortion, why "discrimination" is not the way to understand laws restricting marriage to heterosexual unions. You can with some accuracy call pro-choicers "baby killers" and pro-gay-marriage folks "gay propagandists" (or totalitarians or fascists or whatever), and you may scare folks for a while, but you leave your enemies a lot of room to draw finer distinctions, earn the trust of others, and sow distrust in you.

The long-term fight is never for the enemy, but for the "hearts and minds" of those he rules.

[Stuart Koehl]

I am reminded of a story of LBJ's early days in Texas politics. His opponent was giving him a hard time, so Lyndon told his campaign manager to start a rumor that the man had carnal knowledge of his barnyard swine. "Lyndon!", the manager expostulated, "Nobody is going to believe that the man is a pig-f______!"

"Ah know that", said the future President of the United States. "Ah just want ta heah the sumbitch deny it".

[James A. Altena]

Fr. DGP,

I only say that you're quibbling when you quibble. Your statement here was not a quibble. Your comment about me here, however, is a self-pitying whine.

-----------------------

Stuart:

"Now, it is certainly true that the Bush administration in its conduct of both war and diplomacy has too often been inept. Even if the provincial elections in Iraq this fall and the national elections next winter establish a long-lasting means for Sunni-Shiite reconciliation, fortify the country's nascent democracy, and decisively prove the wisdom of the surge last January, President Bush's allowing Iraq to descend into hell in 2004 will likely haunt his legacy. Whether it is Abu Ghraib and Guantánamo, extraordinary rendition and the CIA's not-so-secret prisons, or the Patriot Act and the gargantuan Department of Homeland Security, there are many things that thoughtful critics could wish the United States had not done or had done better in the war on terrorism."

Somehow you seem to have missed that this paragraph by Reuel Marc Gerecht supports GL's point about Bush's ineptitude. You keep arguing past GL's point instead of addressing it.

I would also note that GL specifically rejected the extension of habeus corpus to these terrorists. Go back and read his very first comment on this thread, and those following. Instead, he suggested only that we *might* consider "applying the GCs to the detainees even if they do not qualify for such treatment." The GC regulations do not include habeus corpus.

His argument (which I think at least merits consideration) is that a public relations debacle by a "tone-deaf" administration (an accurate description) has led to an avoidable backlash and horrible unconstitutional overreach by the SCOTUS and a large section of the general public: "Now, not only has the Court extended habeas corpus to these men, but much of the country wants 'change'."

In short, GL's argument has *nothing* to do with liberal claims that Bush's interventions in Afghanistan and Iraq have and the USA less safe. Instead, it is an argument that inept handling of domestic apologetics has played into the hands of those whose wrong-headed policies will make this country less safe, providing a cover for the new SCOTUS decision and greatly increasing the chances that the Democrats will win the fall elections. Don't be so eager to attack and refute GL for an argument he never made.

[Judy K. Warner]

DGP, I may be wrong but I believe that in situations of debate and discussion, Santorum did counter his enemies' arguments in a reasonable way. I think you are talking about his direct mail fundraising when he "characterized his enemies in the worst way." Of course, he does not write his direct mail himself, and those who write it are usually going to push the limits. He may not even have seen it, but had a trusted staff member approve it. This is not to take away his responsibility, but this is the way things happen.

I think name-calling is not that effective and there are better ways, both morally and practically, to show up your enemies for what they are. I collect outrageous quotes from leftists to use in the direct mail I write, and these are quite effective. They are a piece of factual evidence and they illustrate the nature of current leftists in a way that no name-calling could do. I do think it is important to take on your enemies in some way, and in debate this can be done in a reasonable way, calling them on their false statements and distortions. I just read an article about Tim Russert, pointing out that he pioneered the interview method of putting up on the screen a quote from the interviewee and making him confront it. A politician doesn't have the luxury of continuing to push an opponent who weasels out of dealing with what he has said, but just bringing it up is a good tactic and, unless it is taken out of context, an honest one.

[Stuart Koehl]

>>>Somehow you seem to have missed that this paragraph by Reuel Marc Gerecht supports GL's point about Bush's ineptitude. You keep arguing past GL's point instead of addressing it.<<<

Gerecht's point is not quite the same as Greg's. Greg seems to think that Bush's mishandling of the war has been so egregious as to undermine the entire enterprise by depriving us of allies, energizing our enemies, and fostering opposition to the war at home. Gerecht, on the other hand, believes that Bush's handling of the war created problems that might have been averted or minimized, but it did not fatally undermine the war effort or even impede it very much. Certainly Gerecht does not believe that detainees should be extended rights under the Geneva Convention, or allowed to petition for Habeas Corpus, or that they should be tried in civil courts. In fact, Gerecht has written extensively on all these things, and firmly comes down on the side of the Administration's actions, though he disagrees frequently with the Administration's tactics in defending its actions.

Given the reflexive and vicious antipathy of both the media and the Democratic Party to the Bush presidency since the election of 2000, I really don't think there is much Bush could have done to mitigate the howls of dissent or the obstructionism on the domestic front. They are part of the background, and there is no way he could ever appease his critics at home and prosecute the war.

With regard to attitudes abroad, as Gerecht says, get past the rhetoric for home consumption, and you find U.S. allies cooperating more closely than ever with us (there was no way they were ever going to help us out with large numbers of troops, simply because they don't have any to send, and don't want the ones they do send to get hurt). The notion that our actions in Iraq have galvanized Muslim opinion against us and bolstered al Qaeda have also proven illusory. Public opinion in the Arab world, while not by any means pro-American, is now also turning anti-Jihadi, and the standing of Osama bin Laden and al Qaeda has taken a beating in the last couple of years. The answer is simple: in the Muslin world, people back the winner (since they have no concept of democratic representation, this is the safest course). In 2006, al Qaeda looked to be winning. In 2008, they definitely look to be losing.

The idea that Iraq would serve as a training ground for terrorists from other countries who would then return home to spread terror has also fizzled. Foreign recruits did go to Iraq in substantial numbers (a fact downplayed by the Democrats here, who wanted Iraq to be portrayed as a civil war), but most of them never got the chance to get trained up and go home, because, well, we killed them--us and the Iraqi forces and the Sons of Iraq. In that regard, Iraq has turned out not to be our tar baby, but al Qaeda's--they committed their resources, manpower and prestige to defeating us, and they got their asses whipped themselves. It would do everyone some good to read captured al Qaeda documents in which their senior leadership, writing frankly to each other, concede just how badly they have been beaten, and how catastrophic this has been for the movement.

If we are losing, someone ought to tell our enemies. On the other hand, we are winning, but nobody has told the Democrats, or the New York Times, or the television news media. Not that it matters. To them, al Qaeda is not the enemy, the enemy is Bushitler, who stole the election of 2000, lied his way to reelection in 2004, has gutted the bill of rights (see how many of his critics are rotting in prison?), and who poses the greatest threat to the security of the world since, well, since the beginning of the world.

Against such irrational hatred, I don't think that there is anything Bush could have done, short of resignation or suicide, that would have assuage his opponents or reduced their reflexive opposition to the war. Had Bush not been so tongue-tied, he might have avoided some self-inflicted wounds (though these are largely exaggerated), but with his enemies controlling the means by which most people get their information on the war, I doubt he could have turned things around very much. The best argument for Bush is the facts on the ground, and increasingly his enemies are having a hard time suppressing them.

[GL]

>>>Gerecht's point is not quite the same as Greg's. Greg seems to think that Bush's mishandling of the war has been so egregious as to undermine the entire enterprise by depriving us of allies, energizing our enemies, and fostering opposition to the war at home. Gerecht, on the other hand, believes that Bush's handling of the war created problems that might have been averted or minimized, but it did not fatally undermine the war effort or even impede it very much.<<<

. . .

If we are losing, someone ought to tell our enemies.<<<

It depends. If McCain wins, then I believe we stand a good chance of winning. If Obama wins, he has already told us that he plans to retreat from Iraq and play Neville Chamberlain with some of the most dangerous and American-hating men on the planet. If that happens, I am afraid that what will follow is WWIV, a blood bath that may well surpass WWII. That is not a win, even though I expect that we would be the last man standing in such a conflict. Bush's bungling on the public relations front has heightened this risk.

[Stuart Koehl]

>>>It depends. If McCain wins, then I believe we stand a good chance of winning. If Obama wins, he has already told us that he plans to retreat from Iraq and play Neville Chamberlain with some of the most dangerous and American-hating men on the planet. <<<

Certainly the worst-case scenario. On the other hand, strategy has its own logic and doesn't respect political platforms. Once in office, and actually being responsible for something (for the first time in his life!), Obama will be confronted with information and advice that severely constrains his options. He may want to withdraw quickly from Iraq, he may want to have a face-to-face with Ahmedinajad, but he's going to have to go up against the advice of the entire U.S. military, most of the State Department, and the Intelligence Community. They can be very persuasive, especially for some newbie wet behind the ears.

As Gereacht indicates, Obama will probably continue most of our existing policies, simply because, contrary to what he says on the stump, they work and work well. The problem comes not with day-to-day operations, but in crisis decision making: how does he react when the chips are down? And that, of course, is what scares me the most, because the man gives every indication of having no character (or spine) whatsoever. His proclivity for the path of least resistance stands in sharp contrast to McCain, and is a good indicator of how he would respond when none of the options are very good.

If he does win, I guarantee by the end of this firs term, his most keen supporters today will be screaming for his blood.

>>>Bush's bungling on the public relations front has heightened this risk.<<<

Not by very much. As I said, he could be the second coming of Cicero, he could deliver stirring Churchillian oratory every day, it would not change how his opponents view him nor lessen their antipathy to his policies. Probably just make them madder, since they could not then pretend that they were smarter than he is.

Since you seem keen on this point, tell me precisely what you would have done differently, once you had made the choice to invade Iraq.

[Stuart Koehl]

>>>It depends. If McCain wins, then I believe we stand a good chance of winning. If Obama wins, he has already told us that he plans to retreat from Iraq and play Neville Chamberlain with some of the most dangerous and American-hating men on the planet. <<<

Certainly the worst-case scenario. On the other hand, strategy has its own logic and doesn't respect political platforms. Once in office, and actually being responsible for something (for the first time in his life!), Obama will be confronted with information and advice that severely constrains his options. He may want to withdraw quickly from Iraq, he may want to have a face-to-face with Ahmedinajad, but he's going to have to go up against the advice of the entire U.S. military, most of the State Department, and the Intelligence Community. They can be very persuasive, especially for some newbie wet behind the ears.

As Gereacht indicates, Obama will probably continue most of our existing policies, simply because, contrary to what he says on the stump, they work and work well. The problem comes not with day-to-day operations, but in crisis decision making: how does he react when the chips are down? And that, of course, is what scares me the most, because the man gives every indication of having no character (or spine) whatsoever. His proclivity for the path of least resistance stands in sharp contrast to McCain, and is a good indicator of how he would respond when none of the options are very good.

If he does win, I guarantee by the end of this firs term, his most keen supporters today will be screaming for his blood.

>>>Bush's bungling on the public relations front has heightened this risk.<<<

Not by very much. As I said, he could be the second coming of Cicero, he could deliver stirring Churchillian oratory every day, it would not change how his opponents view him nor lessen their antipathy to his policies. Probably just make them madder, since they could not then pretend that they were smarter than he is.

Since you seem keen on this point, tell me precisely what you would have done differently, once you had made the choice to invade Iraq.

[Stuart Koehl]

>>>It depends. If McCain wins, then I believe we stand a good chance of winning. If Obama wins, he has already told us that he plans to retreat from Iraq and play Neville Chamberlain with some of the most dangerous and American-hating men on the planet. <<<

Certainly the worst-case scenario. On the other hand, strategy has its own logic and doesn't respect political platforms. Once in office, and actually being responsible for something (for the first time in his life!), Obama will be confronted with information and advice that severely constrains his options. He may want to withdraw quickly from Iraq, he may want to have a face-to-face with Ahmedinajad, but he's going to have to go up against the advice of the entire U.S. military, most of the State Department, and the Intelligence Community. They can be very persuasive, especially for some newbie wet behind the ears.

As Gereacht indicates, Obama will probably continue most of our existing policies, simply because, contrary to what he says on the stump, they work and work well. The problem comes not with day-to-day operations, but in crisis decision making: how does he react when the chips are down? And that, of course, is what scares me the most, because the man gives every indication of having no character (or spine) whatsoever. His proclivity for the path of least resistance stands in sharp contrast to McCain, and is a good indicator of how he would respond when none of the options are very good.

If he does win, I guarantee by the end of this firs term, his most keen supporters today will be screaming for his blood.

>>>Bush's bungling on the public relations front has heightened this risk.<<<

Not by very much. As I said, he could be the second coming of Cicero, he could deliver stirring Churchillian oratory every day, it would not change how his opponents view him nor lessen their antipathy to his policies. Probably just make them madder, since they could not then pretend that they were smarter than he is.

Since you seem keen on this point, tell me precisely what you would have done differently, once you had made the choice to invade Iraq.

[Judy K. Warner]

>>>I really don't think there is much Bush could have done to mitigate the howls of dissent or the obstructionism on the domestic front.<<<

The point isn't that he could change the minds of the left. It's the vast number of Americans in the middle who have been convinced that Bush Lied, People Died. There were many, many reasons to take out Saddam Hussein. The administration placed their bet on weapons of mass destruction as a simple explanation to the public. They lost that bet, and never tried to explain all the other reasons. That one thing alone could have changed a great deal.

[Francesca]

With regard to the rights of the Guantanamo detainees, there are two core falsehoods being perpetuated by supporters of unlimited executive power:

1) That the detainees were captured on the battlefield fighting U.S. troops, and

2) That the detainees are terrorists, preferably "Al Qaeda terrorists."

In reality, many of the detainees were taken into custody while engaged in everyday civilian activities (some were at home or at work,) and many were not terrorists at all, but, for example, Afghan villagers, cases of mistaken identity, common criminals, or illiterate Taliban grunts handed over for bounty money by the Northern Alliance.

Take the case of Sami Al-Haj, an Al Jazeera cameraman who was traveling from Pakistan to Afghanistan with a reporter to cover the U.S. attack for his news network. He was stopped by a Pakistani immigration officer, handed over to the U.S., and then kept at Guantanamo, where he was interrogated not about al Qaeda but about Al Jazeera, before being released without charges after nearly 6 1/2 years.

As Glenn Greenwald writes: "It takes an indescribably authoritarian mind to believe that one’s own Government should have the power to put people in cages for life without having to provide them any meaningful opportunity to prove that they did not do what they are accused of. And it takes a deeply dishonest advocate to claim that the Supreme Court’s ruling was designed to protect 'Al Qaeda terrorists' who were 'captured fighting against the U.S,' given that large numbers of our detainees are not 'Al Qaeda terrorists' and were not 'captured fighting against the U.S.'"

The Supreme Court's recent habeas corpus ruling is a victory for our constitution. Here are some key points and quotes from Justice Kennedy, who wrote the majority decision:

"Few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

The section of the Military Commissions Act dealing with detainee rights "does not purport to be a formal suspension of the writ (of habeas corpus)" so it is invalid on that basis alone.

The Court also rejected the Administration’s claim that because the detainees are being held in Guantanamo, the judicial branch doesn’t have authority to rule on their treatment, saying: "The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint ... Our basic charter cannot be contracted away like this."

"The political branches ... do not have the power to switch the Constitution on or off at will."

"The test for determining the scope of this (habeas corpus) provision must not be subject to manipulation by those whose power it is designed to restrain."

On specifics, it ruled that the Pentagon’s combatant status review tribunals "fall well short" of what is necessary. The prisoner "must have a meaningful opportunity to demonstrate that he is being held pursuant to 'the erroneous application or interpretation' of relevant law,'" which is not the case in Guantanamo, where " ... the detainee has limited means to find or present evidence to challenge the government’s case against him ... He does not have the assistance of counsel and may not be aware of the most critical allegations."

The habeas court also must be able to consider "evidence not presented or reasonably available to the detainee" at the time of his status review tribunal.

"The habeas court must have the power to order the conditional release of an individual unlawfully detained." This is a crucial authority Bush and Congress would deny it.

Finally, given that some of the detainees have been held for six years without habeas corpus, the Court ruled that "the detainees in these cases are entitled to a prompt habeas corpus hearing."

[DGP]

>>I think you are talking about his direct mail fundraising when he "characterized his enemies in the worst way."

Yes. I agree with the rest of your post, as well.

[Rob G]

"I didn't see anything put out by Santorum that could qualify by your definition, in any case."

What about those ads with sneering references to "Bobby" Casey? Actually, the Santorum campaign started with the negative ads. Up until then, the thing had been pretty civil and mostly issue-oriented.

"In war, it's the ruthless who win. Same thing in politics. This may require committing the sin of not being nice."

Seems to me there is a great, vast, wide open space between being ruthless and not being nice, both in war and in politics. Winning isn't everything, and when one starts thinking that it is, I believe a trip to the confessional might be in order.

[Stuart Koehl]

I agree with Douglas Feith that reliance on WMDs as the main casus belli was a mistake--though, interestingly, it was one adopted mainly at the insistence of the State Department, which felt that it could not garner UN support on any other rationale. In retrospect, the mistake was waiting on the UN in the first place, which cost us valuable time (in which, I believe, Saddam actually got rid of the WMDs he still possessed).

However, one also has to concede that the opposition and the media have been generally dismissive of all reasons provided for the war, even when the facts are irrefutable:

1. If one reads beyond the Executive Summary of the Dueffler Report on WMD programs in Iraq, you find unmistakable evidence that (a) Saddam Hussein had an active chemical and biological program right up to the outbreak of the war; (b) that he had taken precautions to ensure his ability to restart those programs immediately after the war; and (c) that substantial numbers of chemical and biological weapons, agents and precursor materials have been discovered all over Iraq since 2003.

2. That there was in fact a close relationship between Saddam Hussein and al Qaeda (as well as several other terrorist organizations). Saddam provided al Qaeda with financial, technical and logistic support, provided safe havens for al Qaeda personnel fleeing Afghanistan, and in general had a closer relationship with them than Hitler had with the Japanese. The media consistently offer up the straw man that Saddam was not connected with 9/11--but the Administration never said that he was, any more than FDR said that Hitler was behind Pearl Harbor. And while we're in that general area, these same people claim that Saddam and al Qaeda could NEVER cooperate because the former was a secular Arab nationalist, while the latter were Islamic "fundamentalists". Never mind all the documentation, it could NEVER happen--just as Hitler and Stalin could never get together because one was a Nazi and the other a Communist. Just ask Josef Beck (e-mail me if you want to know who he was).

3. Efforts of Saddam to circumvent the UN embargo, and the break out of the sanctions regime are completely overlooked--as are the French and German armaments captured by coalition forces in Iraq, still in their shipping crates, with manufacturing dates of 2001-2002.

4. Manifold violations of the 1991 truce agreement, which in and of themselves justified the use of military force (which, in fact, we had been using against Iraq for more than a decade.

5. Congressional, bi-partisan resolutions and binding legislation calling for the U.S. to effect "regime change" in Iraq.

Never mind all of that--"Bush lied, people died", though in fact the ones doing the lying, like a rug, are the people making the mindless accusations. God knows what would have happened had such people been around in 1942.

[Stuart Koehl]

>>>Take the case of Sami Al-Haj, an Al Jazeera cameraman<<<

Yes, let's. Pure as the driven slush, that one.

[Stuart Koehl]

>>>Seems to me there is a great, vast, wide open space between being ruthless and not being nice<<<

Actually, some of the most ruthless people are the nicest. You hardly even feel it when they slide the shiv between your ribs. The real problem with Republicans is their sense of decency, which allows Democrats to get away with bloody murder. Politics on their side works by the Chicago (or perhaps the Little Rock) rules, while the Republicans mistakenly think they are dealing with gentlemen. Like Charlie Brown, they always believe that THIS TIME Lucy won't remove the football.

[Bobby Neal Winters]

>>The point isn't that he could change the minds of the left. It's the vast number of Americans in the middle who have been convinced that Bush Lied, People Died. There were many, many reasons to take out Saddam Hussein. The administration placed their bet on weapons of mass destruction as a simple explanation to the public. They lost that bet, and never tried to explain all the other reasons. That one thing alone could have changed a great deal.<<

You've hit the nail squarely on the head here, Judy. My dear brother walked my dementia-suffering mother into the voting booth and held her hand while she made the X to vote for Bush, the first republican she'd voted for in her life. He spits on the ground every time W's name is mentioned now. On the other hand, he's voting McCain in the fall, disliking BHO for all the reasons anybody does.

People like him, who supported Bush in 2004, feel like they've been played for fools.

[Stuart Koehl]

>>>He spits on the ground every time W's name is mentioned now. <<<

But if you asked him why, either he would not be able to give you a single coherent reason, or the reasons he did give would all be based on fallacious information.

By the way, isn't it voter fraud to cast a vote for an incompetent person? I thought Democrats had a monopoly on such things (though they are making efforts to reform; I hear that in Chicago, the dead are now only allowed to vote once).

[David Gray]

>But if you asked him why, either he would not be able to give you a single coherent reason, or the reasons he did give would all be based on fallacious information.

Not really. It could be based on Bush's pursuit of immigration amnesty or his expansion of entitlement programs, etc.

[Stuart Koehl]

JAG: "Supreme Court Ruling Puts Soldiers at Great Risk" [J. Peter Pham]

In a Chicago Tribune op-ed published Friday, Army Maj. Kyndra Rotunda, a former legal advisor at Guantanamo and prosecutor with the Office of Military Commissions, argues that because of the latest Supreme Court ruling on the terrorist detainees, "military commanders must justify battlefield captures and prove to a U.S. judge that decisions they made on the ground—in a faraway land during a battle—were justified" and thus the decision "puts American troops at risk and will lead to more U.S. deaths on the battlefield because it makes it more difficult for soldiers to detain the enemy."

Rotunda, who is the author of the recently published Honor Bound: Inside the Guantanamo Trials (currently #2 on Amazon.com's international law list), notes that "the court has no reason to step in" since, under the system enacted by Congress and signed into law by President Bush, "detainees held in Guantanamo Bay receive more rights than POWs under the Geneva Conventions"—a fact which Chief Justice John Roberts acknowledged in his dissent when he observed that the rules struck down by Justice Anthony Kennedy and the four justices who joined him were "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

Drawing on her personal, legal, and military experience—on the last, incidentally, she has served more years in uniform that the court's majority combined (the sum total of military service by the Boumedienne Five amounts to Justice Stevens's nearly four years of World War II naval service and a one-year stint that Justice Kennedy served in the California National Guard his first year out of law school)—Rotunda writes:

As a JAG officer (a lawyer) in the Army Reserves, I have been deployed three times in the global war on terror. I was a legal adviser in Guantanamo Bay and a prosecutor at the Office of Military Commissions. I have seen the procedures that Roberts discusses—and the conditions at Guantanamo Bay—firsthand. The U.S. military gives all detainees in Guantanamo Bay elaborate proceedings where they can call and cross-examine witnesses and rebut the evidence against them. They are even assigned a personal representative to help them through the process. The military affords all detainees these procedural rights, even those captured in battle with AK-47s in their hands. Under the Geneva Conventions, POWs have fewer rights. They receive a brief hearing with no lawyer and no personal representative.

And what happens when the U.S. decides that a detainee is an enemy combatant? The detainee stays at Guantanamo Bay. But the digs aren't bad. Detainees enjoy up to 12 hours of recreation time a day where they can play sports like Ping-Pong, basketball and soccer. They can work out in the exercise room, take various classes, garden, watch videos and go to the library. They are guaranteed eight hours of sleep every night and 20 minutes of uninterrupted prayer time five times a day. Guards can't interrupt detainees during prayer times, even if they're not praying.

The existing procedures (the ones the Supreme Court thinks are deficient) are so generous that the military paroles hundreds of suspected terrorist detainees back to the battlefield, although no international law, including the Geneva Conventions, requires it. At least 5 to 10 percent of those released re-enter the fight and put soldiers' and civilians' lives at risk. One killed a judge who was leaving a mosque in Afghanistan; another went back to fighting the U.S. and assumed leadership of an Al Qaeda-aligned militant faction in Pakistan; and, most recently, a released detainee became a suicide bomber.

The problem isn't that the U.S. is releasing too few detainees—it is releasing too many.

Rotunda concurs with the sentiment expressed by Justice Antonin Scalia in the concluding sentence of his dissenting opinion: "The nation will live to regret what the court has done today."

[Stuart Koehl]

Just in case Francesca wasn't paying attention, I think it important to repeat MAJ Rotunda's statement:

"The military affords all detainees these procedural rights, even those captured in battle with AK-47s in their hands. Under the Geneva Conventions, POWs have fewer rights. They receive a brief hearing with no lawyer and no personal representative."

Think about it.

[Bobby Neal Winters]

Stuart,

Regardless of whether a coherent reason can be given, it's not just him. To ignore it is idiocy. That is political reality. The political fortunes of our country have depended on people, like him, who were convinced--some would say fooled--that there were weapons of mass destruction hidden in every wadi. (Colon Powell did a helluva job sellin it. Brother likes him even yet.)

Yet, for him, the anger seems to have stuck to Bush. Regardless of the truth in this matter, trying to take the stick off of Bush before the next election is a waste of time. What is singing with swing voters like my brother is that we can't just turn tail and run. We've got to clean up the mess we've made.

There are others, by way of contrast, who say these folks have been fighting for 1000 years, they don't know anything else, so just get out and let them kill each other off.

So, everybody's crazy except for me and you, and sometimes I wonder about you.

As far as voter fraud, the law allows for aiding the elderly in the voting booth.

[Stuart Koehl]

>>>The political fortunes of our country have depended on people, like him, who were convinced--some would say fooled--that there were weapons of mass destruction hidden in every wadi. (Colon Powell did a helluva job sellin it. Brother likes him even yet.)<<<

For what it's worth, I believe that the weapons actually were there. Where they are now gives me some pause, but I bet there are some people in Damascus who could provide the answers. That we keep finding chemical weapons in Iraq, even to this day, goes under-reported. Quite recently I was asked to look at photos of a number of 55-gallon drums of potassium cyanide found at a hidden rocket testing site (begs the question of why we are still finding Saddam's rocket testbeds at this late date) by American troops. Although it is a legitimate industrial chemical, it ain't used in rocket fuel. This is the report I sent to a friend in the field:

From the best of my knowledge, sodium cyanide is not used as a rocket propellant, and there don't seem to be any other uses for it in missile testing. Cyanogen ((CN)2) is a component of rocket fuel, but it is generally made by oxydation of hydrogen cyanide using chlorine over an activated silicon dioxide catalyst, or, alternatively, nitrogen dioxide over a copper salts. You can make hydrogen cyanide from sodium cyanide, but that seems a very ass-backwards way of getting the components for rocket fuel, because you would have so much waste. Also, for rocket propellant, you would need huge amounts of cyanogen. It is most commonly used as the oxydizer in double-base solid propellants.

Because there is no direct use of sodium cyanide in rocket propulsion, and because the amounts needed for propulsion would be so large, I agree that you have probably stumbled across a precursor cache with definite WMD applications. That it was stored at a rocket test facility merely indicates that Saddam was dispersing his assets as broadly as possible while maintaining a reasonable degree of security. A rocket test facility would be almost as closely guarded as a CW facility, but would not come under such close scrutiny. Apparently, his ploy worked pretty well.

[James A. Altena]

"Since you seem keen on this point, tell me precisely what you would have done differently, once you had made the choice to invade Iraq."

That is not GL's point at all, Stuart, and you know it, so stop being evasive. GL did not suggest that Bush should have been doing something differently regarding military strategy once we invaded Iraq. Rather, the implication of his argument is that Bush could have done certain things different *domestically,* that would have been more circumspect and less tone deaf and not contributed to a disastrous backlash such as with the new SCOTUS decision, and quite possibly the election of Obama. It is not a matter of convincing die-hard liberals who would have opposed and hated Bush in any case. It is a matter of not gratuitously handing them, by needlessly high-handed and arrogant domestic political speech and conduct, all the ammunition the liberals have needed to persuade the masses of the great unwashed in the middle. The art of politics includes knowing when and how to skirt mud puddles, not jumping into every one of them like a spoiled brat just to show that one can spray everyone else in the vicinity. Bobby, Judy, and David Gray have also made this point in various ways.

On another point, sleeplessnes, like tarring and feathering on another MC thread, is no joke. Solzhenitsyn documents its extensive use by the KGB in "The Gulag Archipelago." Incredibly simple and effective, it has been documented to be perhaps the single most effective form of torture ever devised. 3-4 days of absolutely no sleep has been shown to break even the toughest Marines; in weaker persons it has even induced permanent mental trauma and insanity. It may even explain Francesca's posts.

[YaknYeti]

The question of military vs. non-military detainees could use a better answer, as far as I'm concerned. I agree that irregulars picked up on the battlefield should be detained for as long as is necessary, even if that is the next twenty years. On the other hand, non-military terrorist suspects, from KSM to bin Laden's chauffeur, make for a messy situation. We should have some sort of evidence to bring against them if we're arresting/ capturing them, shouldn't we? What is the appropriate procedure for folks like that?

Also, Stuart, you jumbled potassium cyanide and sodium cyanide together, above. The two should be similar enough if your goal is to get cyanide that it shouldn't matter, but it was a little confusing at first read.

[Judy K. Warner]

>>>[sleeplessness] has been documented to be perhaps the single most effective form of torture ever devised. 3-4 days of absolutely no sleep has been shown to break even the toughest Marines; in weaker persons it has even induced permanent mental trauma and insanity.<<<

The North Vietnamese used sleep deprivation extensively. My husband says it usually took 5 or 6 days for the victim to become psychotic. A few men were able to hold out much longer for reasons unknown. He himself went 21 days and was intensely miserable but not psychotic. They stopped keeping him awake at that point; he doesnt' know why. That seems to be the record. Most of the prisoners underwent sleep deprivation at some point but none had permanent damage. You are right that it is a terrible torture that was hated. "It is extremely unpleasant and with each hour that goes by becomes more unpleasant." -- Jim Warner.

Oddly, Jim thinks that his long sleep deprivation increased his intelligence, as if unused parts of his brain opened up to compensate for the fatigue.

[Stuart Koehl]

>>>That is not GL's point at all, Stuart, and you know it, so stop being evasive. GL did not suggest that Bush should have been doing something differently regarding military strategy once we invaded Iraq. <<<

Clausewitz describes war as being supported on a three-legged stool, with one leg being the state, the second the army, and the third the people. Without the support of all three legs, the war fails. Therefore, manipulation of public support, sustainment of public morale, is an essential element of any military strategy. You can call it propaganda, but that's not necessarily a bad word, and the Allies were masters of the art in World War II. In a counter-insurgency or counter-terrorism war, maintenance of public morale is more critical than in any other kind of war, because the entire thrust of the enemy's strategy is not to defeat our forces (which is physically impossible) but to demoralize one or more of the three legs of the Clauswitzian triad. And time is always on the side of the terrorists and insurgents. I've written on this-google it.

My question to Greg, therefore, pertained not to military moves, but specifically to the issues Greg raised: how to deal with detainees, how to sell the war, how to rebut critics--all of which are central to the morale battle. I don't expect Greg to be a master of counterinsurgency warfare, but he seems to think there is a problem on the home front, and I would seriously like to hear what he thinks Bush should have done, to complement his litany of the things Bush did wrong.

[Stuart Koehl]

>>>Also, Stuart, you jumbled potassium cyanide and sodium cyanide together, above. The two should be similar enough if your goal is to get cyanide that it shouldn't matter, but it was a little confusing at first read.<<<

The military uses neither potassium cyanide or sodium cyanide as a chemical weapon. Neither is easy to spread over a large area. Hydrogen cyanide (called AC) is the premier blood agent used by both the USSR (in Afghanistan), by Egypt (in Yemen), and by Iraq (in Iran). Stored as a liquid, it vaporizes at ambient temperatures, is lethal in relatively low doses, but also dissipates rapidly, allowing friendly forces to move into the area within a couple of hours. You can hydrogen cyanide from sodium cyanide, but there are much cheaper and easier ways to make it directly, rather than by decomposing sodium cyanide--unless those are denied to you by international sanctions.

So, the military unearthed a large cache of sodium cyanide at a rocket testing facility. There is no legitimate use for sodium cyanide in rocket engines (though, note, Saddam was also prohibited from playing with rockets, too). Sodium cyanide can be used to make hydrogen cyanide, a military blood agent. The logical conclusion is this was a stockpile of CW precursor chemicals, evidence that Saddam was planning to retain a CW capability and could rapidly restart his program, once sanctions were lifted or the U.S. withdrew his forces.

This is precisely what the Dueffler Report (which nobody seems to read in its entirety) said we would find.

[Stuart Koehl]

>>>It may even explain Francesca's posts.<<<

She should lay off the late-night lattes, then. It does explain why kids at my daughters' high school are so weird ("I'll sleep tomorrow, I promise, Mom, but now I gotta study for my APs").

Sleep deprivation, done for the purpose of extracting information as opposed to breaking a person's mind (what the Soviets and the North Vietnamese usually had in mind) stops well short of turning the subject into a drooling idiot. Idiots can't give you useful intelligence.

[Stuart Koehl]

>>>It may even explain Francesca's posts.<<<

Vae victis?

[Judy K. Warner]

A note on copying stories onto the blog: Just make sure you don't copy AP stories.

Link is here.

The way in which news is delivered online could soon change as the definition of fair use and copyright infringement under the Digital Millennium Copyright Act is currently being hashed out between the Associated Press news agency and the blogosphere.

That's under 200 words so the AP would allow it. They are trying to charge bloggers $2.50 a word for copying their material directly.

[Stuart Koehl]

Since we here are interested in the truth, why would we turn to AP?