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Josh Marshall

Josh Marshall is editor and publisher of TalkingPointsMemo.com.

Articles by Josh

I thought the last post was pretty clear about whether I agreed with using military tribunals to mete out punishment to people who might well be 'terrorists' but who couldn't be accused of any specific and definable crime. But I've gotten a few emails asking. So apparently it wasn't as clear as I thought.

The short answer is, 'no' I don't agree with it.

But if readers noted a tinge of ambivalence in what I wrote, it's because I think the problem is a serious one. What do we do if hundreds of hardened, bin Laden-worshipping Al Qaeda fighters fall into our hands? And what if we don't have any evidence of specific crimes they've committed? What do we do? Just send them on their way? That hardly seems wise. Especially given all the trouble, carnage and expense we've undertaken to destroy Al Qaeda.

But it's a question we may soon have to confront.

That's a real dilemma and I'm not sure what the solution is. I just don't think hiding whatever we decide to do with them behind the cloak of non-rule of law, drumhead courts is the way to proceed. But since this is the only situation in which military tribunals would seem to be highly useful, I speculated that this exigency might be precisely what they're intended for.

And by the way, here's another rock-solid column by Bill Safire on the military tribunal question. It turns out the trial of those Nazi saboteurs so frequently mentioned in defense of the Bush order may actually be an object lesson in why military tribunals are not such a hot idea. And by the way, if my recollection serves, the Nazi saboteur Safire mentions - the one who turned the crew in - was one of the two who escaped the chair. I think he got life. Which under the circumstances actually seems a bit harsh.

As noted before, I find it hard to sustain the argument that military tribunals are necessary to try terrorists who might under normal circumstances have been tried in civilian courts. But there is another possibility, another scenario, in which I can imagine the government might find them quite useful ...

Let's start with a question. Does anyone know what law it would be that the military tribunals would administer? As in, the US Code administered in the federal courts? The Uniform Code of Military Justice? I'm not a lawyer. But my layman's reading of the order tells me that this is left pretty vague and probably for the Secretary of Defense or the tribunals themselves to devise.

Section 1, subsection E says those called before military tribunals will be "tried for violations of the laws of war and other applicable laws..." The next subsection (F) says it is "not practicable to apply ... the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts."

Again, it sounds to me like these military tribunals are designed not just to give the government tons of leeway on the procedure end but on the law end as well.

And perhaps here's why.

We've heard a lot recently about these non-Afghan fighters (Pakistanis, Chechens, Saudis, etc.) holding out in places like Kunduz - many of whom are actually linked to Al Qaeda. For present heuristic purposes at least, let's assume these are hardcore, well-trained, well-indoctrinated terrorists - which indeed many of them are. In many cases we won't have any evidence of specific terrorist acts these guys (for once, I think we can say 'guys' with some confidence) have committed. In many instances, they may well not even have committed any particular terrorist act or crime - yet.

So what to do with them? Under American law, maybe not much. One can easily imagine a situation in which it wouldn't so much be hard to convict them in our courts, but impossible even to prosecute them, because they couldn't be shown to have committed any definable or specific crime which our law recognizes.

This is a problem which, for better or worse, military tribunals might be quite well-equipped to handle. American law - in fact the rule of law generally - looks not at what you are but what you've done. Military tribunals might be useful for doing the opposite.

It now seems increasingly clear, with a little reflection and after some more voices have chimed in, that President Bush's executive order creating military tribunals is profoundly ill-conceived. What damns it now is not so much the essence of the matter - the actual tribunals, which damn themselves sufficiently - but the outlying facts.

Consider a few ...

First, the fact that the order is wildly and recklessly overdrawn, when this is precisely the sort of order you'd want to draw quite narrowly. Anyone who is not a United States citizen can be bumped out of the civilian courts and into the ersatz military tribunal system on the simple say-so of the president. That is, almost by definition, arbitrary.

Second, not only did the president not call upon the Congress to enact legislation creating the tribunals, he also didn't announce his intention to issue the order (even if informally) ahead of time - something that would have allowed some de facto consultation and comment.

The best argument for the tribunals is the need to safeguard intelligence assets. But upon examination, the federal courts seem to have ample protections already in place to achieve that end.

The more irascible sort of conservative will likely see this sort of argument as liberal carping or out-of-touch civil libertarian fastidiousnes that disqualifies the arguer as someone not up to the challenge of facing the terrorist threat. But as we noted a week or so back, the issue is necessity. And there looks to be little here.

Coming up next, what military tribunals might really be for.

I just finished Robert Kaplan's Soldiers of God, his book of reportage of the Afghan mujahidin's fight against the Soviets in the 1980s, and I really recommend it. The read is engrossing. The prose is disciplined yet colorful. And reading the book, the Afghan people and place-names you're seeing on CNN will slowly break out of two-dimensions into three.

It surprises me that I'd have such a positive reaction because I've always had very mixed feelings about Kaplan's work, particularly based on his Balkan reportage, much of which is in Balkan Ghosts.

Kaplan's writing is about foreign cultures and geopolitics; but it's essentially travel writing, if of the very highest sort. And good travel writing is an inherently and deeply subjective genre.

Yet I always felt Kaplan had a tendency to go too native. A good writer has to understand the prejudices of the people he writes about. But in Balkan Ghosts, with respect to the Serbs, he seemed to adopt them. His view of the Serbs' self-explaining myths was such an internal one that they seemed to become his governing, if not wholly uncritical, vision of what was happening in Yugoslavia and Kosovo in the late 1980s and early 1990s.

This caught my attention in Balkan Ghosts because I knew a bit about the topic. And so I had my eye out for it in Soldiers of God, which is about a subject I know much, much less about. And certainly sometimes it's there. As in this passage, in the chapter on Kandahar, where Kaplan describes the southern city's culture as "pure Afghan, untouched by the culturally corrupting influences of Iran that had bastardized Herat or those of the Indian subcontinent that had bastardized Kabul." (p.192)

But this fault, if it is a fault - and I'm not certain of it - is more than outweighed by the quality of the reportage and the wealth of very internal knowledge Kaplan is able to convey.

A few other small points. The book was first published in 1990 and this republication has a new chapter, 'The Lawless Frontier', which I think is based on a recent essay in The Atlantic. It's more rushed and overview-like than the rest of the book. And there's little editing to make it flow from the rest of the book - a shortcoming I'd have imagined could have been easily rectified, even in the rush to get it out quickly after 9/11 . But this new final chapter does give a chilling and Kaplanesque view of present-day Pakistan which makes you think that getting things in order in Afghanistan may only be a prelude to getting a handle on this wrecked and disintegrating country.

Today's Paul Krugman's column discusses a clear and damning truth. If anything, he underplays it. After 9/11 George W. Bush promised $20 billion to help rebuild New York -- the one part of the United States to suffer widespread damage from the attacks. (The attack on the Pentagon was a grievous wound to national prestige and honor and there was a terrible loss of life - but the physical destruction at least was contained and there's no reason to think there will be fall-out for the local economy.) That promise has now been broken. Instead of $20 billion, it's now going to be a bit more than $10 billion with some vague promises about a few bucks in the future ... maybe.

Of course, this ain't quite as serious as saying you didn't inhale when you did. But surely this sort of broken promise must count for something, right? Maybe the aid would have been more forthcoming if the attacks had centered on some 'bama catfish farms rather than lower Manhattan?

Sound like I'm reverting to pre-9/11 form? Well, just trying to get with the program. Everybody's doing it.

In response to yesterday's post on books about the Ottoman empire, a number of readers wrote in to recommend Ottoman Centuries: The Rise and Fall of the Turkish Empire by Lord Kinross. I've read the Kinross book and it's currently published in a big pulpy volume clearly intended to be a mainstay on bookstore shelves for decades to come. I will say that it is the best of the single volume histories on the subject that I've read. I just thought it was a bit heavy on political doings, recitations of Sultans (the achilles heel of Ottoman history writing), and just generally grade B history writing. But if you're hunting around for a full-length single-volume history of Ottoman Turkey that'd probably be your best bet, though I still think the slender Itzokowitz book mentioned in the post below is a tour de force and the best place to start.

Here is a very good piece by Anne Applebaum in Slate about Turkey and the prospect of the Turks leading a peace-keeping force in Afghanistan. The piece is really a paean to Turkish secularism -- or rather Kemalism, Turkey's state ideology, originated by Mustafa Kemal Ataturk, the founder of the modern Turkish state.

Talking Points is an ardent Turkophile, for a number of reasons, several of which are touched upon in Applebaum's piece. I hope to be talking more about this. But for the moment let me just mention a few of what I've found to be some of the better books on the topic.

Though I've read many, I still haven't read a really good full-length, single-volume history of Ottoman Turkey -- that is, before the fall of the Sultanate and the end of the empire after World War I. Many of the ones I've read either treat the topic with a fanciful exoticism or just end up rattling off Sultans in a less than edifying or satisfying way.

But let me recommend one truly excellent book on the Ottoman Empire, Ottoman Empire and Islamic Tradition by Norman Itzkowitz. At a bit more than one hundred pages, you can easily dash it off in one sitting. But it's elegantly written, marvelously concise, and provides an excellent overview of a whole epoch of Islamic history, as well as some crucial history of Turkey. Another good read is Andrew Mango's recent biography of Ataturk, entitled, appropriately enough Ataturk.

Hopefully, more on this soon.

Happily, we seem to be on the brink of an intelligent and fruitful debate about military tribunals and the war on terrorism. Mainly because the debate has not shaken out along conventional ideological lines. Not only is there no conventional right vs. left split. We're also not seeing the sometimes familiar extremes-against -the-middle breakdown.

Let's take one example of the pro-tribunal argument.

Andrew Sullivan makes the increasingly-convetional but quite apt point that bin Laden and other Al Qaeda terrorists don't deserve to be tried in civilian courts because they are not 'criminals' in the common sense of the word; they're soldiers at war with us.

But this complicates the question as much as it clarifies it, because 'war' also involves a slew of protections. When you beat another country at war, you don't try their leaders and soldiers for murder. War-killing is different from murder and it is, in some sense, permissible.

Now obviously the sort of violence Al Qaeda has used against the United States is so totally beyond the laws of war that you can make a pretty straightforward argument that bin Laden, et.al. are war-criminals. But then we've got a precedent for how we deal with war criminals too. And at least during this century it hasn't been with military tribunals.

The problem here, I think, is a much broader one than military tribunals. It's a meta-question that we'll likely be dealing with for decades to come, and one that's being ignored. That is, the world-wide rise of non-state actors and organizations and how they interact with states.

This isn't meant as cheekiness or to diminish the seriousness of the situation. But what is Al Qaeda, really, but the world's first terrorist NGO? None of our existing institutions or metaphors equips us for dealing with an outfit like Al Qaeda. And every effort to shoehorn it into one or the other of the existing ones is bound to produce an awkward fit.

With events on the ground in Afghanistan today, it's hard to figure that Osama bin Laden is going to be heading to the studio any time soon to cut another video. But if he does, here's my take (in the New York Post) about why we should let him talk just as much as he wants.

Well, that's odd. In today's New York Times, Judith Miller reports that "reversing a course set two decades ago, [the Bush administration] has decided that the world's remaining stocks of smallpox should be retained until scientists develop new vaccines and treatments for the disease."

As I noted yesterday, my new article in The New Republic addresses this question -- specifically, Tommy Thompson's new bioterrorism czar's strident opposition to precisely this policy and his repeated denials that new vaccines or treatments can or need be developed.

The quickly-assembled Times article characterizes the change of policy like this:

A succession of administrations have endorsed the goal of destroying the virus, which was eradicated as a disease in the 1970's. But some American scientists and Pentagon officials have argued for retaining smallpox stocks, and in 1999 President Bill Clinton declared that they should be maintained, at least temporarily, while more research was conducted.

The Clinton administration privately assured other nations that it would support a move to kill off smallpox in 2002 when the issue was considered by the World Health Organization, which has long advocated destruction of the virus ...

"The issue was straightforward," said a senior official. "Are we going to do what we can to be prepared for what is one of the most consequential threats we face, or are we going to engage in feel-good measures that mask the real danger?"

From my understanding, this significantly misstates the situation. The Clinton administration actually made this decision in 1999. They may not have enunciated the plan with the same self-serving badass-ery as the Bush folks. But no one whom I've ever spoken to believes the decision made in 1999 was meant to be anything but permanent. In fact, if you look back at Miller's own articles in the Times from April 22nd, April 23rd, and May 22nd 1999 I think it pretty much bears me out.

The World Health Organization still planned, and still plans, to revisit the issue in 2002. But that's the WHO, not the US government. This is at best a more definitive statement of a key policy change Bill Clinton made in 1999.

Be that as it may, the Miller article only underscores a pretty basic question: If the Bush administration believes that smallpox should not be destroyed, that keeping the stocks will make possible the development of new medicines and vaccines, and that all of this is critical to national security, how is it that its new chief of bioterrorism preparedness at HHS adamantly believes that each of these propositions is misguided and false?

Note to White House press corps: TPM is giving you a gimme question for Ari.

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