The expanding War on Terror: their hypocrisy, and ours
Dec 15, 2011

The expanding War on Terror: their hypocrisy, and ours

It is hard to imagine how the timing could have created a more poignant juxtaposition. At the same time as the Obama administration triumphantly withdraws from Iraq, Congress is set to institute the legal codification of the largest expansion in the War on Terror yet, up to and including the indefinite detention of US citizens on US soil at the sole discretion of the President.  

This isn't exactly the first time the US has triumphantly withdrawn from Iraq. The draw down of troops - each time heralded as a great success of the Obama administration despite being largely on the Bush schedule - has been going on since Obama got in office. Last August, we were offered glorious footage of the last "combat brigade" as it rolled across the border into Kuwait. At the time, it was hard to take the claim seriously that the war in Iraq actually was over given the 50,000 troops and contractors remaining in the country, with deaths of US citizens still occurring. 

Now, however, this is the real and final mission accomplished and the newly returning troops in Fort Hood get the hero's welcome. Never mind the 17,000 contractors, diplomats and private mercenaries guarding the world's largest embassy in Baghdad. Never mind the over 20,000 troops just across the border in Kuwait. And let us not let the hundreds of thousands of dead or, say, the increase from 17% to 50% over the last decade in the number of Iraqis living in slum conditions, deter us from our overwhelming sense of self righteousness. 

It is worth recalling that the Obama administration fought against this timeline. They would have liked to extend it beyond the Bush timeline. However, in the wake of Wikileaks revelations (such as the subsequent bombing of sites to cover up the slaughtering of civilians) it was politically impossible for the Iraqi government to give the Obama administration its all important request: complete immunity in Iraq for all US military troops there. Without that, Obama was forced to leave.

The expansion of the War on Terror laws:
One might have thought that a decade after 9/11, with the war in Iraq purportedly over and the war in Afghanistan purportedly winding down, and with a Democratic president -  a constitutional lawyer no less - who has long payed lip service to the importance of civil liberties, that we might expect a decline in the power or the presidency in the War on Terror. Instead, we are seeing a massive advance in the powers of the executive to limit civil liberties in the name of this War on Terror. 

In 2001, Congress passed an Authorization to Use Military Force (AUMF) agreement targeted against the perpetrators of 9/11 and the Taliban that gave them harbor. The exact language was narrow and constrained. While under Bush/Obama we saw a global war in innumerable countries that seemed often to not have any semblance of justification in this AUMF, there was not the official codification for this global war. This new McCain/Levin bill gives us just that. The language in this bill is very vague and can - and almost certainly will - be able to be applied to anything that could be said to "substantially support" Al Qaeda, the Taliban, or "related forces". The expansion into places like Somalia is the obvious example, but this is not limited to even exclude US citizens, anywhere in the world including the US itself. This overturns 150 years of policy going back to the civil war that prevents the military from operating on US soil without congressional authorization; now they can by mere presidential fiat.

It is important to get one point straight. For months, Obama has threatened to veto this language. It has been quite clear, however, that it is not out of any sense of moral obligation to uphold civil liberties or abide by the constitution (the 5th and 14th amendments as well as Article III, Section III, provide significant constitutional issues although it is highly unlikely these will be argued in a court of law). Instead, it was an Executive vs Congress issue, with the President not wanting the Congress to provide any limitation on when the Executive could or could not detain people however they saw fit. It is because of the Obama administration that US citizens on US soil are not exempted, due process clauses of the constitution be damned. Now that the constraining language has been removed, Obama has removed his veto threat. 

The massive public opinion shift:
It is becoming increasingly hard to even remember what it was like during the later half of the Bush era when the left banded together to consistently decry the egregious violation of civil liberties by the Bush regime in the War on Terror. Warrantless wiretapping of US citizens was considered to be too much in terms of public opinion - let alone the constitutional problems. There was a rallying cry around the Patriot Act. Indefinite detection and torture in Guantanamo Bay was a fundamental blight to everything the US stood for, and the people and media in the US were not afraid to say so. 

Where is this opposition today? Take the targeted assassination of US citizen Anwar Al-Awlaki in Yemen - far from any declared battlefield - and, two weeks later, his 16 year old son without a shred of due process or any public declaration of the crimes he has even committed outside of preaching that could give even a moral - never mind a legal - justification. This bill extends and entrenches Guantanamo bay, even preventing the 88 inmates who have been cleared for release to be released. And this bill now lets it be up to the presidents discretion - not any court of law - who is and who is not a militant and thus allows US citizens anywhere in the world including in US soil to be detained (not arrested) indefinitely or put in military trials. If the mere idea of tapping the phones of US citizens outside of a court system caused mass opposition, surely the events going on here that are allowing for indefinite detention or even assassination of US citizens are orders of magnitudes worse. Yet the opposition is muted and delegated to the fringes. 

Back during the warrantless wiretapping debates, it was often raised this idea of a slippery slope. Namely, if you accept that, what could come next? Few back then even speculated that it would slip this far. The due process clauses in the constitution were simply too clear. It is well worth noting that those who might have feared a slippery slope were correct and it raises the question: what is further down the slope from where we are today?

It is our responsibility too:
The responsibility falls on us. If we the people modulate our outcry not based on how egregious the underlying events are - and by any reasonable measure they have been maintained or expanded under Obama on the civil liberties front - but instead modulate it based on whether it is "our side" in office, there is no hope for change. It is no use to vote for the "hope and change" candidate if, when our hopes are dashed and change does not occur, we offer muted resistance and mutter under our breaths that somehow McCain would have been even worse. 

Some may find that they don't mind the idea of an "obvious" terrorist being indefinitely detained, or even assassinated, regardless of whether they are a US citizen. The problem is that who exactly is a terrorist is not at all clear, and that distinction is not going to be left to a court of law but to the arbitration of an Executive without constraints and with this new legal codification to back them up. Recall the enormous amounts of Muslims invested and detained in the wake of 9/11 - a modern era McCarthyism - the overwhelming majority of which were just average US citizens or residing in the US; imagine the possibility of that situation with these new laws. Unquestioned, unfettered, unconditional belief in the validity of the rule of law, of due process, and of basic civil liberties for Americans and for all people is part of what has made the US great. It should not be so lightly tossed away. 

Deficit Hypocrisy:
From a budgetary standpoint, the US government has stumbled from brink to brink narrowly staving off economic disasters like government shutdowns, debt defaults, or the elimination of overwhelmingly popular programs like payroll tax cuts or unemployment benefits. Each time this years, under the guise of caring about the deficit, we have gotten to witness these supposed Herculean conflicts between Republicans and Democrats that have, for the most part, seen massive concession to the Republicans (such as the extension of the Bush era tax cuts for the richest one percent of Americans, or trillions in pledged spending cuts) in exchange for getting over basic procedural hurdles that have rarely ever been difficult before. 

One might have expected that when a $600B+ military spending bill starts to work its way through congress - the Iraq and Libya wars are supposed to be over now, don't forget - that honest people caring about the deficit might have thought this was a reasonable place to put at least a bare modicum of effort into reducing the excessive spending on the military (more than the next twenty biggest military spending countries combined). Unfortunately, this wasn't even a topic of discussion, the question was about the codification of a massive extension to the global War on Terror doctrine. 

It is not yet clear what the outcome will be, but it is also worth noting that the rumblings are beginning - such as a bill being pushed by John McCain - to overturn the defense cuts automatically trigger on Jan 13th given the failings of the super committee to make any progress on cutting the deficit. Starting as a trivial procedural to raise the debt limit - something that has been done innumerable of times in the past, including repeatedly under Bush - the Republicans dug in this time and got a deal to cut 1.2 trillion by a bipartisan super committee. If that failed - as it did - then automatic cuts would trigger half military and half entitlements. The idea was the latter was sacrosanct to the Democrats and the former sacrosanct to the Republicans. As I noted at the time, it was hugely asymmetric in that the Democrats, despite the rhetoric, clearly also find military cuts sacrosanct while the Democrats actively want to make the entitlement cuts. I would thus submit it is enormously likely that either a very asymmetric bill gets passed that heavily favors Republicans or there will be some workaround like the McCain bill that exempts the defense side of the deal. 

And so the hypocrisy continues. 

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