ProfessorBainbridge.com

Ends don't justify the means, even as to bin Laden

Jason Mazzone:

Initial news reports indicate that the identification of the compound at Abbottabad resulted from tracking bin Laden's most trusted courier. The identity of that courier was obtained after interrogation of a detainee at Guantanamo produced the courier's nickname. We don't know (and will likely never know) what sorts of interrogation techniques were used to obtain that information from the detainee but it is probably safe to assume the techniques were not pleasant. ...

One of the main arguments against torture has always been that it doesn't work. Writing at the Daily Beast in April 2009, for example, a senior military interrogator complained that torture failed to produce information to find Osama bin Laden. But here we are, two years later, and interrogation (enhanced or otherwise) of a detainee unlocked the door that led yesterday to the raid at Abbottabad.

I don't care whether torture works or not. As a lawyer, I find it significant that the Anglo-American tradition, according to the great English jurist William Blackstone, includes a "prohibition not only of killing and maiming, but also of torturing (to which our laws are strangers)." As a Catholic, I find it significant that Vatican II’s Pastoral Constitution on the Church in the Modern World explicitly disapproved of mutilation and torture as offensive to human dignity. In my view, even if torture works, we ought to abstain from torture because a prohibition of torture is part of the moral and legal heritage we are fighting to defend.

As for reports that Osama bin Laden was killed in a fire fight, I have no problem with that. Killing of an enemy leader in combat during wartime strikes me as morally licit, as I explained in this post. If it was true that bin Laden was assassinated -- "done in by a double tap -- boom, boom -- to the left side of his face" -- while defenseless and at a time when he could have been captured, however, that strikes me as morally illicit for the reasons I discussed in this post.

About damned time

CNN reports:

The most prominent face of terror in America and beyond, Osama Bin Laden, has been killed in Pakistan, U.S. officials said Sunday night.

I honestly don't understand Obama's Libya policy

NY Times:

Forces loyal to Col. Muammar el-Qaddafi battered rebel fighters on the road outside this strategic oil town on Tuesday with rocket fire, mortars and artillery, driving them many miles to the north and leaving them in disarray.

Even after a senior rebel leader criticized the NATO-led air campaign for a second straight day, there was still no sign of the air power that two weeks ago seemed to have the loyalist forces reeling toward the Qaddafi stronghold of Surt, more than 100 miles to the west.

I honestly don't get it. Obama starts an undeclared war without Congressional approval, spends a few hundred million dollars, because Qaddafi was about to smash the rebels outside of Benghazi. Then after a couple of weeks, he has the US effectively pull its fighters and bombers out of the war, turning tail and running. With the US out of the picture, Qaddafi is again smashing the rebels. So how is all this helping?

Meanwhile, there's a bloody civil war going on in the Ivory Coast, violent repression of protests in Syria, Yemen trembling on the brink of something bad, and the US does nothing.

Whatever happened to the Powell doctrine? If we're going to make war on Qadaffi, do it right, kill him, take out his senior staff, and get out. Otherwise, stay out. This sort of half-hearted nonsense, however, seems the worst of all worlds.

Tony Arend v Joe Biden on use of force without Congressional approval

My friend international law expert Anthony Arend responds to my post pointing out the difference between what Senator Obama said in 2007 and what President Obama is doing today:

Obama clearly painted himself into a corner with his remarks in 2007.  His current actions clearly contradict what he said in 2007.

Tony then goes on to explain his own view and highlights an interesting colloquy he had with then-Senator Joe Biden, whose position also seems to have shifted a bit:

I believe that the Constitutional authority of the president to use military force without Congressional authorization does extend beyond circumstances of “actual or imminent threat.” Under Article II of the Constitution, the President is the “commander-in-chief” of the military. I would argue that this means that the president has the authority to use force in short, quick operations that are undertaken in the interests of national or international security. In the past, presidents have many times used force for such operations that involve a minimal amount of force and are of relatively limited duration. In most of those occasions, Congress has acquiesced in the presidents’ actions.  Initial, US military involvement in Libya would seem to fall into this category. Of course, if the conflict becomes extended, if ground troops were ito be ntroduced, and force levels increased, then Congressional approval would, in my view, be needed.

In 1994 when I testified before the Senate Foreign Relations Committee, I made a similar claim– that the president could use force in such short actions with minimal troop involvement. Interestingly enough, then-Senator Joe Biden begged to differ ...

Tony quotes the transcript of their exchange and then concludes:

... it looks like the Joe Biden of 1994 would not support the authority of President Obama to use force against Libya without Congressional authorization.

Somewhere John Yoo must be smiling, as Obama changes his mind on war powers

Remember when liberals blasted John Yoo for his position on the so-called unitary executive? Well, he must be feeling vindicated when he hears what Hillary Clinton just told Congress:

The White House would forge ahead with military action in Libya even if Congress passed a resolution constraining the mission, Secretary of State Hillary Clinton said during a classified briefing to House members Wednesday afternoon.

Clinton was responding to a question from Rep. Brad Sherman (D-CA) about the administration's response to any effort by Congress to exercise its war powers, according to a senior Republican lawmaker who attended the briefing.

The answer surprised many in the room because Clinton plainly admitted the administration would ignore any and all attempts by Congress to shackle President Obama's power as commander in chief to make military and wartime decisions. In doing so, he would follow a long line of Presidents who have ignored the act since its passage, deeming it an unconstitutional encroachment on executive power.

Clinton's staking out a pretty aggressive position on the scope of the President's war powers. It's especially aggressive considering what her boss said back when he was still a mere junior Senator from Illinois:

Barack Obama: Congress decides deployment level & duration, not president

Q: Can the president disregard a congressional statute limiting the deployment of troops--either by capping the number of troops, or by setting minimum home-stays between deployments?

A: No, the President does not have that power. To date, several Congresses have imposed limitations on the number of US troops deployed in a given situation. As President, I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.

Barack Obama: No action against Iran without Congressional authorization

Q: In what circumstances would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?

A: The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action. As for the specific question about bombing suspected nuclear sites, I recently introduced S.J.Res.23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.”

To repeat, Senator Obama's position was clear: "I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law." But isn't that exactly the authority his Secretary of State just asserted?

It's interesting how even a formerly stalwart Obama supporter like Andrew Sullivan is starting to realize what we're dealing with in Barack Obama:

We are governed by an executive that goes to war in secret and at will, openly contemptuous of the democratic process and even minimal transparency. and when you realize that that executive actually campaigned against this kind of secretive, dictatorial presidency, you realize how this has become systemic, and the anti-democratic rot is deep.

John Yoo's feeling vindicated

His WSJ op ed argues that:

President Barack Obama has again flip-flopped on national security—and we can all be grateful. Having kept Guantanamo Bay open, resumed military commission trials for terrorists, and expanded the use of drones, the president has now ordered the U.S. military into action without Congress's blessing.

Imagine the uproar if President Bush had unilaterally launched air attacks against Libya's Moammar Gadhafi. But since it's Mr. Obama's finger on the trigger, Democratic leaders in Congress have kept quiet—demonstrating that their opposition to presidential power during the Bush years was political, not principled.

Well, duh.

Misson Creep

WSJ:

The U.S. and its allies markedly escalated their campaign in Libya, pounding tanks and artillery in a battle to keep the Gadhafi regime's forces from controlling two cities pivotal to the rebel movement.

That's not a no fly zone. What's the plan? What's the exit strategy?

Shooting at civilians in Libya

NY Times:

An American pilot and a weapons officer were safely rescued in Libya on Tuesday after their warplane crashed near Benghazi, but the United States Marine Corps dropped two 500-pound bombs during the recovery and faced questions about whether Marines had fired on villagers. In an episode that reflected the unpredictability of an air campaign designed to keep American troops off the ground, the United States military said that an equipment malfunction rather than enemy fire brought down the plane. A Marine Corps officer in the Mediterranean strongly denied that any shots were fired at civilians during the rescue, but Marine Corps officers at the Pentagon said they did not know what happened or whether any civilians were killed or injured when the bombs exploded. ...

Channel 4 News in Britain reported that six villagers were shot by American troops in rescuing one of the two airmen. None of the villagers — who were interviewed by a reporter in a nearby hospital — were killed, although a small boy may need to have a leg amputated. ...

Neither he nor other Marine officials said specifically whether any shots were fired from the Harrier attack jets.

So let me see if I understand this: Our government as led by Barack Obama sent Marines into harms way for lousy reasons to fight a battle with no apparent plan, endgame, or exit strategy, and now it's investigating the Marines for having defended themselves when they or their buddies were shot down in potentially dangerous territory. I don't usually resort to vulgarities on this blog, but that's just seriously fucked up shit.

Ten thoughts re Libya

1. Where is the outrage from the lefties who opposed Bush's war of choice? Why isn't Code Pink or Moveon.org up in arms? As of right now, nothing on their websites?
2. Kimberly Strassel's op-ed on Obama's lack of leadership is a must read.
3. Does the concept of impreial overstretch mean anything to anybody?
4. Who's going to pay for this new war?
5. What do we do if Kaddafi (or however you spell it) really does cease fire militarily, but turns his secret police loose? Or restarts his nuclear/WMD programs? Or blows up another airplane?
6. We've armed Egypt to the teeth. Why are we letting them sit this one out?
7. How much is the new war going to cost? How can we afford it when our budgetary problems are so severe?
8. Nothing on the front page of Daily Kos. Again, where is the anti-war left?
9. A mere no fly zone will not be enough to oust Kaddafi.
10. What do we do the next time Bahrain opens fire on its protesting citizens? Bomb it?

Libya: What would Kirk think?

Whenever the United States decides to engage in one of its miliutary adventures in the Middle east, I am reminded of Russell Kirk's essay on Bush 41's Iraq policy, in which he argued that:

Now indubitably Saddam Hussein is unrighteous; but so are nearly all the masters of the "emergent" African states (with the Ivory Coast as a rare exception), and so are the grim ideologues who rule China, and the hard men in the Kremlin, and a great many other public figures in various quarters of the world. Why, I fancy that there are some few unrighteous men, conceivably, in the domestic politics of the United States. Are we to saturation-bomb most of Africa and Asia into righteousness, freedom, and democracy? And, having accomplished that, however would we ensure persons yet more unrighteous might not rise up instead of the ogres we had swept away?

Swap out Saddam for Muammar Gaddafi and it's as true today as it was then. Perpetual war for perpetual peace, indeed.

Obama and the GWOT

In 2008, pretty much the only issue on which I thought Obama was a better choice than John McCain was on war on terror issues. It didn't persuade me to vote for him, but it gave me some hope about his victory. How much more disappointed must his supporters therefore be with his performance. John Quiggin:

The announcement that military show trials are to recommence at Guantanamo Bay, combined with the brutal and vindictive treatment of Bradley Manning, make it clear that, as regards willing to suppress basic human and civil rights in the name of security, there is no fundamental difference between the Obama and Bush Administrations.

Indeed.

For an alternative view, see Peter Worthington:

In the natural order of things, U.S. President Obama should perhaps consider apologizing to his predecessor, George Bush the Younger.

Except he won’t. It’s not his style.

Bush doesn’t expect it, and would probably be unnerved if Obama did.

The issue, of course, is Obama’s realization that his campaign promise to shut down the Guantanamo Bay detention center for terrorists was not only unrealistic, but damned dangerous.

In sober reflection (that lasted three years), he and his administration have reluctantly come to the conclusion that the ideal place to keep suspect terrorists is Gitmo.

Insert here bromide that those who give up essential liberty to obtain a little temporary safety deserve neither.

The Point of No Return?

Last night I read with great interest Jeffrey Goldberg's important article on the prospect of a nuclear Iran.

For the Obama administration, the prospect of a nuclearized Iran is dismal to contemplate— it would create major new national-security challenges and crush the president’s dream of ending nuclear proliferation. But the view from Jerusalem is still more dire: a nuclearized Iran represents, among other things, a threat to Israel’s very existence. In the gap between Washington’s and Jerusalem’s views of Iran lies the question: who, if anyone, will stop Iran before it goes nuclear, and how? As Washington and Jerusalem study each other intensely, here’s an inside look at the strategic calculations on both sides—and at how, if things remain on the current course, an Israeli air strike will unfold.

Goldberg's piece is more descriptive than normative, which makes it all the more compelling. He concludes that the odds of an Israeli military strike are somewhat north of 50% and weighs the question of whether the USA should hit Iran first.

As regular readers of this blog know, I am highly dubious of the Wilsonian/ Bush foreign policy of fighting wars to promote democracy. I believe American blood and treasure should be in harms way only when vital national interests are at stake.

For me, the key question is whether a nuclear Iran can be contained. Would the mad mullahs use a nuke? I think it's more likely that they would use nukes as a deterrent, creating a nuclear umbrella for clients like Hezbollah and as a stick to beat the other Gulf states into accepting Iranian regional hegemony.

When I wrote about this issue several years ago, I was inclined towards a policy of deterrence and containment for a variety of reasons. In the meanwhile, however, I've become increasingly inclined to think that the latter possibility poses a sufficient threat to US interests to justify a bombing campaign to deny Iran nuclear weapons. Yet, I think there are some conditions that ought to be satisfied before or concurrently with such a campaign:

1. Gulf state buy in: If Goldberg is right, the Gulf states want us to hit Iran. Okay. But this is an historic opportunity to ensure that the Gulf states will align with the West for the indefinite future. As such, we should insist that the Gulf states -- including the Saudis -- have skin in the game. They should let us use their bases and their air forces should participate in strikes on Iran. The goal here is to alienate them from Iran, so as to set back any Iranian aspirations for regional hegemony.
2. Israeli-Palestinian peace: If Israel really regards a nuclear Iran as the greatest existential threat to Jews since the Nazis, they'll owe us big time for taking out that threat. Lock them into a room with the Palestinians and not let them out until they have agreed to a viable two-state peace settlement.
3. Deny Iran capability to strike back conventionally. The goal of any pre-strike diplomacy should be to make it clear to the Iranians that they either give up their nuclear weapon program or face losing both that program and any ability they have to project conventional power. Hit their conventional military very, very hard. Also hit the security services to promote regime destabilization. Finally, consider regime decapitation.

As somebody with a long term interest in military history, I've been following this issue for some time. I'm very concerned that a preemptive strike would violate international law and drive a stake through the heart of the UN Charter rules on use of force. As a Catholic, I'm concerned that we comply with the requirements of just war doctrine. OTOH, the prospects of a nuclear armed Iran are highly compelling in favor of action.

If the decision is made to go forward with the military option, however, I believe it can only be justified by ensuring that Iran will not be a threat to its neighbors in the foreseeable future and that we use this moment to demand a just and equitable settlement of the Israeli-Palestinian conflict that provides security for Israel and a viable state for the Palestinians.

If the decision is made that it is in the interests of the US not to engage in a military strike on Iran, however, I think the US needs to keep Israel from doing so either. As I wrote earlier:

One thing does seem clear, however, and that is that the US will come in for a lot of the blame if Israel attacks Iran. It is not in our national interest to let Israel use US-supplied weapons in a lone wolf capacity. We have no business letting Israel drag us into a wider war in the Middle East.

Downfall

With the 65th anniversary of the Hiroshima bombing today and controversy raging over Obama's decision to send our ambassador to the ceremony in Japan, it's important to remember the context in which it occurred. Warren Kozak writes in today's WSJ that:

Since 1945, Japan's narrative has centered almost exclusively on the atomic blasts and its role as victim—with short shrift given to the Japanese invasions of China, Manchuria, Korea, Hong Kong, the Philippines, Indochina, Burma, New Guinea and, of course, the attack on Pearl Harbor. Japanese children have learned little about the Rape of Nanking or the fact that as many as 17 million Asians died at the hands of the Japanese in World War II—many in the most brutal ways imaginable.

There is also the inconvenient truth that Japan started the war in the first place. There would have been no war in the Pacific between 1937 and 1945 had Japan stayed home.

Focusing on the atomic bombs paints the Japanese as victims, like other participants in World War II. They were not. The Japanese, like their German allies, were bent on global conquest and the destruction of other people who did not fit their bizarre racial theories. Japan's continued focus on Hiroshima and Nagasaki has been an understandable sore point for its Asian neighbors, who suffered greatly at its hands. ...

Young people today may have a hard time understanding that point because of the moral equivalence and political correctness that have taken over our society, our media and especially our universities. It teaches our children that all countries have good and bad elements within them—something so obvious that it's trite. But this lesson has become so powerful that it is not out of the norm for young people today to believe that, while World War II was certainly horrible, all sides share some blame.

As for the morality of the bombing, it seems clear that the bombs actually ended up saving both American and Japanese lives.

The best treatment of these issues I've read is Downfall by Richard Frank. In it, he reviews in great detail the American plans for the invasion of Japan and the Japanese plans for resisting it. He works through the stark mathematics in a most convincing way, demonstrating the cost in lives that would have resulted from an invasion would have been truly astronomical, especially among the Japanese civilian population. Frank also makes an excellent case that starving Japan out in a campaign of submarine warfare and conventional air warfare was neither politically nor militarily practicable. It is a must read for anyone who wants to really understand what happened in August 1945.

From Publishers Weekly: The premise behind this excellent history of the concluding stages of WWII in the Pacific is that the dropping of the atomic bomb on Hiroshima and Nagasaki has cast a light so bright that it has blinded historians to many of the political, diplomatic and military realities that existed before August 6, 1945. In his comprehensive study of the last months of WWII, Frank (Guadalcanal) aims to present events "as they were perceived and recorded by American and Japanese participants in 1945--not years or decades thereafter." In 1945, American strategists developed their plan, "Operation Downfall," for forcing the unconditional surrender of Japan. Japanese leaders, meanwhile, mobilized all available military and civilian resources for a final defense of the homeland. Though they knew the war was lost, Japanese military strategists believed their preparations were sufficient to compel the Allies to offer more generous terms on which the war might end. Frank immerses his readers in the flow of intelligence estimates, battle experience and shifting strategy on both sides. The centerpiece of the book is an exacting and dispassionate examination both of the American decision to use the atomic bomb and of whether Japan would have surrendered absent the bomb. Frank marshals an impressive and complex array of evidence to support his contention that surrender by Japan was by no means imminent in August 1945, and that alternatives to the bomb, such as incendiary bombing, carried no certainty of causing less suffering and fewer deaths than the atomic bomb. In his balanced use of sources and in his tough-minded sensitivity to moral issues, Frank has enriched the debate about the war's conclusion.

Warriors or Citizen-Soldiers

Tony Arend links to an interesting piece by USAF LTC (ret.) William Astore, who opines that:

A subtle change has been happening right before the eyes of Americans. Our troops are being told they're no longer primarily citizen-soldiers or citizen-airmen; they're being told they're warriors. Indeed, they're reminded of this linguistic turn in "creeds" that many of them (and often their families) display with pride. ...

Now, some would say there's nothing wrong with this. Our troops are at war. Don't we want them to have a strong warrior ethos?

The historian (and retired citizen-airman) in me says "no," and I'm supported in this by a surprising source: An American army pamphlet from World War II with the title "How the Jap Army Fights." After praising the Japanese for their toughness and endurance, the pamphlet, citing a study by Robert Leurquin, makes the following point:

"The Japanese is more of a warrior than a military man, and therein lies his weakness. The difference may be a subtle one, but it does exist: The essential quality of the warrior is bravery; that of the military man, discipline."

In 1942, our army cited the "warring passion" of the Japanese as a weakness, one that inhibited their mastery of "the craft of arms." Yet today, our army and air force extol the virtues of being a "warrior" to young recruits. ...

After nearly a decade of war, we don't need more "warrior ethos." What we need are disciplined citizen-airmen and citizen-soldiers who know their craft, but who also know better than to revel in a warrior identity. We knew this in 1942; how did we come to forget it?

One huge difference between today's military and that of 1942, of course, is that we now have a volunteer, professional military instead of a mass conscript military. Professor Astore might usefully consider whether the ethos of the former will necessarily differ from the ethos of the latter. Indeed, the prospect of such a differing ethos may well help explain the early American antipathy to standing armies and the preference for a citizen militia.

Astore's column will also call to mind the debate triggered by Robert kaplan's book, Warrior Politics: Why Leadership Demands a Pagan Ethos, which argued that:

The key characteristic Kaplan wishes us to look for in our leaders, however, is not the traditional conservative notion of virtue, which seeks to guide the necessary use of force and deceit with a wise sense of larger purpose, but rather a pragmatic determination to use whatever means are available to secure our national self-interest at any particular moment. And by self-interest Kaplan means an effective application of or increase in power so that we, in effect, get what we want. A focus on virtue is a bad thing, so in our foreign policy those who wish to bring in human rights are wrong, and religious values are potentially disastrous. Skillful liars with no reluctance to use force in pursuit of national security are far more successful than moral idealists.

(George Weigel's review of Kaplan's book is a brilliant counter from a Catholic just war perspective.)

The New Terrorism

A discussion in The National Interest of GU Professor Bruce Hoffman's theories about the new face of terrorism:

Terrorists have “discovered our Achilles’ heel”: Washington doesn’t have a strategy to counter extremists that fly under the radar, defy demographic profiles, rapidly radicalize and, in some cases, live right down the street. ...

And an additional problem for Washington is that extremists don’t fit our accepted molds. It used to be assumed that terrorists were poor and uneducated. In fact, the most educated and well-off are some of the most dangerous recruits. ...

Plus, al-Qaeda and its inspired groups aren’t concerned about delivering a single, crushing blow anymore. They’re playing the odds. Their goal is to flood the system and to do it quickly, when the opportunity arises. Hoffman contended that the groups behind the scenes are “willing to accept degraded competency when they see the opportunity to strike.” They hope one of the plots will work. If not, they’re taxing the intelligence system and providing cover for the bigger attacks still to come. And as Hoffman noted, “even a failed plot carries with it enormous consequences.” An attempted attack can inspire new recruits and boost fundraising efforts.

All of this means that terrorists are being radicalized and deployed faster. Hoffman contested the oft-reported assertion that Shahzad’s plot and other recent schemes were “amateurish.” The plots failed instead because they were rushed. Unfortunately for Washington, these perpetrators haven’t been in the system long enough to offer up intel of lasting value once they’re apprehended.

Hoffman explained al-Qaeda’s new strategy in terms of the Irish Republican Army’s warning to Margaret Thatcher back in 1984, after the group didn’t achieve what it had hoped after bombing a Conservative Party conference: “Today we were unlucky, but remember we only have to be lucky once. You have to be lucky always.”

HT to Tony Arend, who links an audio of an interview with Hoffman discussing the new terrorist threat.