The Month Ahead: War, Rights, Travel
Sometimes opportunity just comes knocking at your door. That’s sure how it felt when Danielle invited me to be a guest at Concurring Opinions this month. But I never imagined that, on my first day as a guest blogger, opportunity would come knocking again, this time with the blogging equivalent of a welcome basket.
That’s how it felt to read Michael Kinsley’s op-ed in the New York Times last night as I contemplated my first post (What’s Our Line? N.Y. Times, 1/5/10 at A21 NY edition). His eight-paragraph pitch to stay true to America’s first principles of justice (at least, as he sees them) seemed a custom-made opportunity to lay out my blogging agenda for the month. Kinsley’s essay was a great little read for me not because of his too broad conclusion (“We have nothing to be ashamed of, little to fear and much to be proud of in choosing to err on the side of treating captured foreign terrorists as we would treat any upstanding American who tried to blow up an airplane full of people.”), but mainly for the odd path he took to reach it. It was opportunity knocking again because he teed up several issues that interest me. (A mixed metaphor there? Nevermind, that train has sailed.)
Three issues jumped out in particular:
(1) War. Wrote Kinsley: “At [President Obama's] direction, thousands of American soldiers in Afghanistan and Iraq are now doing their best to kill terrorists, would-be terrorists and terrorists in training with no thought whatsoever to the legal niceties.” In other words, inter arma silent leges.
Absolutely wrong. American soldiers in those countries are now doing their best to kill terrorists with more attention to legal “niceties” than ever before. But they’re applying a body of law with which most of us are unfamiliar: international humanitarian law, a.k.a. the laws of war. Law matters more now partly because of the terrible legal mistakes that were made early in the “War on Terror,” when policy-makers and their lawyers sought convenient deviations from a respected body of law that has been distilled, practiced, and improved over time. Law also matters more now in our era of instant information, when reports of unlawful conduct by our soldiers can snatch damaging defeats from the jaws of discrete military victories. So everything from targeting to interrogation is done with legal advice. One of my first blogs will be to promote the best book you can read on the subject, authored by a group of scholars who collectively have more than a century of experience giving and taking such advice.
(2) Rights. Should the suspected terrorist, once captured, be tortured in a secret prison (because he has no right to constitutional rights) or tried in a public courtroom (with all our Constitution’s protections)? Kinsley: “A line has to be drawn somewhere to determine which of these utterly different standards of government behavior is applied where — and the nation’s border is as good a line as any.”
Wrong again (although Kinsley seems to know that). When should the Constitution follow the flag? The question is old, and asking it is much easier than answering it. But this strict territorialist view, to borrow a phrase from then-White House Chief Counsel Alberto Gonzales, is a bit “quaint” in the twenty-first century. In an article to be published in March in the Michigan Law Review, I analyze one problem with the hoary idea that the Constitution shouldn’t get its feet wet. Kinsley is certainly aware of this (the general problem, of course, not my article), and the quote above is a bit of a straw man for him. But although he ultimately concludes that the circle of rights should be drawn broadly, there is no doubt that he wants a solid line drawn somewhere. I’ll be blogging about the problem of pat answers to that tough question, and the nauseating frequency with which we’ve had to deal with them again and again in our history.
(3) Travel. The article’s lead was, of course, the arrest of Umar Farouk Abdulmutallab. He delivered the first political scandal of the new year with his apparent evasion of numerous terrorist watchlists allowed him to obtain (and retain) a U.S. visa and attempt to blow-up a Detroit-bound airliner. Since I’m writing a book on watchlists in general, and international travel in particular, I’ll be blogging a lot about the issues presented by his case and others. How did we come up with something like a No-Fly List anyway? What came before? What lies ahead?
And, in the course of it all, I’d like to introduce you to one of the most interesting and powerful women in American history that you’ve probably never heard of: the indomitable Mrs. Ruth Shipley.
Thanks for the opportunity, Danielle! I’m looking forward to the month ahead.