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July 17, 2006

The Equalizing Effect of Technology, Terror, and the Dissolution of the Nation-State

Reading this excellent post of Grim's on the Hamdan decision, I had some related thoughts that I'd like to throw out for discussion.

It seems to me the entire calculus of international relations is being radically changed by the increasing affluence of industrialized democracies and a concommittant phenomenon: the fear of violent confrontation. I cited something a long time ago on Jet Noise about the UN and how their entire focus seems to have become the maintenance of what I then called Order Über Alles:

From Castro's Cuba to Pol Pot's Cambodia to Amin's Uganda to Mugabe's Zimbabwe to the warfare in Rwanda and Hussein's Iraq, the history of the international relations over the past several decades is a history of endless tolerance for murder and repression -- as long as the violence involves actions of recognized governments. The international community has little tolerance, however, for protracted disruption in the continuity of leadership within a government. The international community is willing to act -- maybe even for moral reasons -- in the presence of a power vacuum.

There was a time when only the very richest men and nation-states possessed the means to make their voices heard or enforce their will on large numbers of unwilling persons. But with the advent of relatively cheap chemical/biological weapons and intercontinental air travel, even actors with fairly limited means now possess the wherewithal to transport small groups of footsoldiers and weapons of mass destruction instantly across the globe, posing a once-undreamed-of asymmetrical threat to the world's few remaining superpowers.

The implications of Hamdan are (to me at least) significant. They say that, far from worrying about mere humanitarian concerns, at least some of those nine men and women in black may well have been worried, not solely about the safety and welfare of detainees, but about their own safety, welfare, and security.

The entire purpose of Geneva was to ensure reciprocally humane treatment of prisoners during wartime. There is an implied carrot at the end of the stick: if you agree to treat our prisoners humanely, we will agree to do the same to yours. To balance out this implied carrot there is (obviously) an implied threat: refuse, and we shall refuse like treatment to your prisoners. Of course, this threat requires a certain amount of sangfroid; something affluent societies with open media no longer seem to possess.

The inclusion of formerly-excluded fringe groups like al Qaeda in the provisions of the Geneva Convention indicates, at least to me, a shift in their bargaining power at the negotiating table brought about by technology.

As technological advances made the West richer, they have made us more risk averse and less willing to accept the casualties, harsh realities, and necessary trade-offs between freedom and security that war inevitably brings. At the same time, technology has speeded up travel and caused a population explosion, making national borders more porous. These developments have the effect of making isolationism and national sovreignty increasingly difficult concepts to defend.

Technology, the Internet, and simple human ingenuity have made it easy to disperse terror cells and lower the cost of killing. The 9/11 terrorists used boxcutters and plane tickets to kill almost 3,000 people. Fertilizer and fuel oil were used in the Oklahoma City bombing.

I sense not just altruism in Hamdan, but naked self-interest. Fear of confronting an enemy we can't keep out and can't always identify easily. Fear of retribution in a society with a free press which sensationalizes even trivial (and sometimes made up) offenses like the infamous Koran flushing incident at Gitmo. Hamdan was essentially an unofficial renegotiation of Geneva which brought al Qaeda - a terrorist group neither officially contemplated nor meant to be recognized by the Geneva signatories - to the bargaining table. And you don't get invited to the bargaining table unless you have something to offer. Or unless you have power. Or unless you inspire fear. That power to inspire fear is something that al Qaeda: a terrorist group not officially backed by any nation or recognized group, would not possess to the degree it does were it still fighting with stone knives and scimitars and riding Arabian steeds. We are afraid of al Qaeda today because they could be anywhere, at any time; because five years ago, they flew planes into the World Trade Center, killing 3,000 Americans.

Because they crossed the Atlantic Ocean and invaded our turf.

Because they brought jihad to us. Using our own technology.

And boxcutters. And now, our own legal system. It is something to think about.

Posted by Cassandra at July 17, 2006 05:00 PM

Comments

Yes, it's called lawfare. I remember in the 70s being impressed with the Israel's relative (to the West) ruthlessness in dealing with its Arab enemies. They, too, seem to have lost their moral center at least incrementally, and become more like us. Contrast the current situation with history: there is a reason that pirates and guerrillas were relatively unknown across the civilized world from the late 17th century to until the close of WWII: when caught they were summarily shot or hung.

Posted by: Jim Robinette at July 17, 2006 06:20 PM

Treaties, like records, are made to be broken and then remade. The Geneva Accords are likely dead as they are now when assessing their usefulness in the war on terror, or will be as soon as another bomb goes off in western civilization. I would like to think that they will eventually be remade to account for the likes of al Qaeda. The real problem here is that the Pentagon, on its own, went tits-up in the face of the Hamden decision without even so much as nod to a restrained interpretatioon. Stevens' split decision didn't call for the US to capitulate to the Geneva Acccords, but only to require the administration seek congressional authority before instituting military commissons to try the rat bastards.

I don't know that I've ever seen such a complete and unilateral surrender of a important weapon on the part of the US armed forces in my lifetime. As the enemy has no intention of observing the Geneva Accords, I would suggest that there is, therefore, no accord worth fretting over.

Posted by: spd rdr at July 17, 2006 06:24 PM

I humbly ask for you indulgence while I admit to the blogsphere that intelligent women, meaning specifically you, are a beautiful thing and one to be treated with diamonds and pearls.
Have that jarhead buy you a nice diamond for no special reason....it's got to be 2 carats to qualify.

Posted by: Habu1 at July 17, 2006 06:41 PM

I am still quite confused about the practical effect of this decision.

Like most decisions, it seems that there would be two parts to it (as you suggest). And maybe even three, but I may be splitting hairs (or hares - shut up KJ) here, though my practical experience says no:

1. What it actually says (and cripes, people can't even agree on THIS yet). Some say it says just what you say mr rdr, and you know far more about this than I do - that we have to try accused detainess using under already-established courts (i.e., no so-called "kangaroo courts", like we were really doing that anyway, but whatever). Others say it actually means we have to extend full Geneva protections. I am not convinced this is true.

2. Once you decide what it says, how that gets implemented. There are lotsa ways to skin a cat.

3. Crap. I forgot #3. Maybe I will dismember it later.

Posted by: Cassandra at July 17, 2006 06:45 PM

Habu, you are a very nice man.

I would not know what to do with a large diamond like that.

Very likely, I would take it off while gardening and leave it on a large rock. My husband was laughing at me the other day because I took one of our kitchen spoons outside and was digging in the garden with it...again.

I do try to take care of jewelry, but I think something really expensive would be entirely wasted on me. I am just as happy with a cold beer and a steak.

Posted by: Cassandra at July 17, 2006 06:48 PM

But thank you! For a minute, I felt like a princess!

Posted by: Cassandra at July 17, 2006 06:49 PM

When magistrates view the world as THEY would like to see it--you get decisions like Hamdan.Mayhap we would be better served by citizen solons, vice a class who've lived outside the real world.Not so different from Torquemada when ya think about it.

Posted by: WildBlueYonder at July 17, 2006 07:10 PM

This is what disturbs me.

If all I saw in this decision was SCOTUS saying, "each branch needs to play in its own bailiwick" then I wouldn't really be at all disturbed. But that's not what I see. I see a bit of judicial overreach here, ostensibly in the name of smacking down the executive, and in my book two wrongs don't make a right. Perhaps right message, wrong method. But the end doesn't justify the means.

Posted by: Cassandra at July 17, 2006 07:26 PM

It's essentially the same things as Bill Keller saying, "FOUL BALL!"

"DAMMITALL, THAT LOUSE BUSH IS BYPASSING CONGRESS AND RUNNING SECRET PROGRAMS WITHOUT PROPER OVERSIGHT!!!!"

"JUMPING JEHOSEPHAT!"

So what does the dumb ****** do? He bypasses Congress and publishes our secrets on the front pages of the NYT.

WTF???

Where the hell does he get the right to do what he says Bush can't do?

And as it turns out in the END, Bush DID brief SOME people. And Bush was elected to represent me. He has a mandate. UNLIKE KELLER, he actually KNOWS something about the decisions he is making

THIS DUMB ****** DOESN"T.

Posted by: Cassandra at July 17, 2006 07:31 PM

Not that I'm upset about any of this, mind you.

Posted by: Cassandra at July 17, 2006 07:31 PM

Jeez spd. I'm sorry. I get so tired at the end of the day, between work and making phone calls and making dinner and vaccuuming and trying to clean up loose ends around here my mind is just fried. I had to re-read your comment to remind myself of what I was thinking.

Treaties, like records, are made to be broken and then remade. ...I would like to think that they will eventually be remade to account for the likes of al Qaeda. The real problem here is that the Pentagon, on its own, went tits-up

This was my #3.

I remember reading something about how some EU official in the wake of Hamdan was saying, "Hey - Geneva really is behind the times anyway - you guys were handed a load of crap and even we don't want to have to live by that". So they want to renegotiate it too so they don't have to extend Geneva protections to terrorists.

So my #3 is simply this: what will the international commty do? Because THIS is who should be interpreting or plugging holes in Geneva, NOT Scotus. The signatories. But what the hell do I know - I am just a dumb housewife with a blog.

Posted by: Cassandra at July 17, 2006 08:05 PM

Cass, your loyal readers will buy you a good garden trowel, if you promise not to bring it into the kitchen to cook with.

Grim's article is great. I was going to write something profound, but it's too damned hot (108+ here today, ugh). I will give it a try tomorrow. Overreaching is the main problem I have with the Nine Beetles' of Karnak latest attempt at playing Moses, aside from common stupidity.

Posted by: Mark at July 17, 2006 08:35 PM

I promise :) Actually, it wasn't my *good* cooking spoon Mark.

It was my old 25 yr old one metal that I never use, and I did scour it and put it in the dishwasher before putting it back in the drawer :p

But he was still shaking his head at me. He told me I looked like a seven year old little girl digging in her garden. I did not hit him.

Like guys don't cook with metal pots, pans, and cutlery out in the field even scour them with sand when they have to.. but we won't go there.

Posted by: Cassandra at July 17, 2006 08:59 PM

To my limited understanding of law, I did see something about the Hamdan decision and comments around it that amused me.
According to the Constitution, the Senate has the power to advise and consent on treaties, etc.; the Senate being part of the Legislative branch of government.
I believe I saw a comment by Anthony Kennedy regarding the 'separation of powers' regarding the implied adherence to Article 3 of the Geneva conventions.

By what Constitutional Power does the Supreme Court have to conclude a treaty, or in agreeing to the binding powers and extent of said treaty?

Just axin', ya know?

I think the Senate has been more 'silent' on this matter than they should because of the very partisan rancor of the Iraq War; this has allowed the Supremem Court to venture where it shouldn't have, to the extent of treaty interpretation (their ruling on tribunals was legitimate, within the scope of their powers). When you see someone like Joe Lieberman being savaged by the activist left of the D-party, a message has been sent to the rest of the party to stay on the reservation or face the same ostracism. So Democrats who see the problem and would be reasonable in discussing a solution are silenced, methinks.
So fear and naked self interest are indeed part of the equation. Fear on the part of Senators to take a stand; fear on the part of the Supremes to trust the executive, fear on the part of many of reprisals from our Arab buddies in al Qaeda. I still recall that the judge who ruled in the first World Trade center bombing will be under US Marshall protection for the rest of his life.

Posted by: Don Brouhaha at July 18, 2006 10:06 AM

Politics and fear make for poor decisions and faulty policies. America needs to make some very important decisions. As a nation, America cannot decide if it is at war or not; and if at war, with whom and in which countries. As for terrorist entities without nationality, the schizophrenia becomes even worse. It would be nice to remove politics from the equation but hopeless to expect this.

From Grim's "Hamdan" http://grimbeorn.blogspot.com/2006_06_01_grimbeorn_archive.html

"The body politic is in an interesting place. The most important distinctions are decided time and again by razor-thin margins, yet the winning side gets all. Thus, in 2004, the electoral margin was very thin -- yet the Republicans won both houses of Congress and the Presidency. Though the margin of victory was only a few points, the whole power of the state passed into Republican hands.

In Hamdan, a 5-3 decision that would have been 5-4 if Roberts had participated decided the day. The margin was as narrow as can be, and yet the intent of the other two branches of government was set aside, and the most hardline liberal ruling in years became, for now, the law."

How could this happen if power were in the hands of the GOP: the Presidency, the Senate, and the House? The majority is razor thin in absolute terms and house of cards before a divisive issue - particularly an issue as politically charged as reigning in judicial evangelism on the Supreme Court. The Court has always been political, but it has assumed jurisdiction without Constitutional check since its founding.

The court has been manipulated, misused, become a law unto itself; FDR shamelessly stacked it and it surprisingly never gave him any grief. Manipulation, political chicanery, stacking the court, defiance, and any other method one can name of sidestepping a Constitutional collision with the SCOTUS over its jurisdiction is only delaying the day of reckoning. The SCOTUS needs to be reigned in by the President and both houses of Congress. Part of me would like to have seen GWB tell the SCOTUS that they have no jurisdiction over the conduct of war and prisoners held outside the territorial USA.

The problem here is that this action would become precedent for discarding any SCOTUS decision that displeases the executive branch. It should not appear ad hoc. This is why I think any such decision should be supported by a 2/3 majority of both houses. This is a clear impossibility at present. A Supreme Court Justice has never been impeached and removed from the bench, but several should be. This is clearly impossible w/o the quorum required for impeachment; and the impeachment must be for cause.

spd said:

"I don't know that I've ever seen such a complete and unilateral surrender of a important weapon on the part of the US armed forces in my lifetime. As the enemy has no intention of observing the Geneva Accords, I would suggest that there is, therefore, no accord worth fretting over."

I do not know what the military could have done. Some generals could have fallen on their swords. I am not sure many would accept another MacArthur moment. The President might have defied the SCOTUS, but my thinking on this is stated above. I agree the accord is moot.

Cass said:

"1. What it actually says (and cripes, people can't even agree on THIS yet). Some say it says just what you say mr rdr, and you know far more about this than I do - that we have to try accused detainess using under already-established courts (i.e., no so-called "kangaroo courts", like we were really doing that anyway, but whatever). Others say it actually means we have to extend full Geneva protections. I am not convinced this is true."...........................

'If all I saw in this decision was SCOTUS saying, "each branch needs to play in its own bailiwick" then I wouldn't really be at all disturbed. But that's not what I see. I see a bit of judicial overreach here, ostensibly in the name of smacking down the executive, and in my book two wrongs don't make a right. Perhaps right message, wrong method. But the end doesn't justify the means."

We do not have to give terrorists Geneva Accord protections. They are illegal combatants, out of uniform, and may legally be executed. Soldiers of, say Iran, Syria, NK, etc. in uniform probably have protection and would likely have to be prosecuted much like the Nazi and Japanese war criminals were after WWII.

Don Brouhaha said:

"By what Constitutional Power does the Supreme Court have to conclude a treaty, or in agreeing to the binding powers and extent of said treaty?"

Why, absolutely none IMHO.

"The Senate has been more 'silent' on this matter than they should because of the very partisan rancor of the Iraq War; this has allowed the Supreme Court to venture where it shouldn't have, to the extent of treaty interpretation (their ruling on tribunals was legitimate, within the scope of their powers)."

I agree on the deafening silence and feel their legitimacy in the second is more a function of the political weakness of GWB and partisan backstabbing, than any Constitutional basis. It certainly would not have slowed FDR down. He would have Splodeydopes on a rope by now.


Posted by: Mark at July 18, 2006 08:22 PM

Part of the problem is we are becoming civilized, which means we work together instead of competing. Also, we operate according to laws – which we can change if needed.

The Universal Human Phobia is violence to other humans. Barbarians deal with this by doing unto others before others do unto them. But Civilized folks eschew violence in all its forms. Civilized folks are also easy meat for the Barbarians.

I’m not against extending Geneva Conventions to terrorists. Not because of what that means for them, but for us. Our civilized troops have to live the aftermath of their actions once prisoners are captured. Once captured, targets quickly become people.

But if this is a war, and we do have prisoner of war camps (or whatever the correct acronym is these days), we don’t have to let anyone go before the war is over. I think we can be civilized without being idiots. By that I mean prosecute the war, prosecute the security leaks and the New York Times. Kill, capture and otherwise disembowel our enemies. We need to let the sheepdogs loose and quit complaining that they aren’t acting like sheep. And we should not feel sorry for the wolves, they mean us no good.

However, wars are fought against other nations, at least that is how our laws seem to be set up. The islamoterrorists fall outside our law (Congress and the Senate have had since 9/11/2001 to correct this and they have not) for warfare. Technology now enables a few to cause damage that whole armies could not have accomplished 100 years ago. Our body politic needs to figure out how to deal with these people. But if Israel is right, if Hezbollah is a proxy for Iran and Syria, then those nations are waging war through proxies. Those nations need to be called to task. Osama Bin Laden wants WWIII, he wants the Caliphate to rise up and there are too many like-minded individuals. Little problems grow to be big problems unless solved early. This problem has been brewing for over 20 years, and will grow exponentially.

I believe being civilized doesn’t mean putting your head in the sand. I think we can be civilized together, but need to stand ready to defeat the barbarians, when, as and however required. A truce is time for your enemy to rearm, rest up, and figure out what he was doing wrong. We have been going at the War On Terror half-@$$ed. Civilized nations need to call Iran and Syria to task, now, today. (N. Korea too-but a reality check says we only have so much power to project, unless we are willing to go nuclear). We do not accept such behavior from criminals in our towns, but we will accept such behavior from nations because they are nations.

Posted by: Xopher at July 19, 2006 09:03 AM

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