Gilbert on Kennan

In a blog post, Prof. Alan Gilbert of the Univ. of Denver praises Obama's recent speech on counter-terrorism policy, drones, and Guantanamo as a "turning point," while noting (among other things) that it should have come earlier and contending that presidents never do anything decent without mass pressure from below.

Toward the beginning of his remarks Gilbert, referencing his 1999 book Must Global Politics Constrain Democracy?, comments briefly and in passing on George Kennan:

In most foreign policy discussion and international relations as an academic field, realist theories - both official ones used in making/apologizing for American foreign policy and more sophisticated versions employed in the critical study of American errors and crimes, even systematic ones - abstain from the outset from looking at the consequences [of U.S. foreign policy] for democracy at home....

For instance, the leading post-World War II realist, George Kennan in American Diplomacy, pits sober, professional diplomacy against democratic crusades like Woodrow Wilson's in World War I.... But in the 1984 edition, responding to the disastrous American aggression in Vietnam, Kennan noticed the war complex, "our military-industrial addiction." He shifted to a more democratic, common-good oriented view without naming the shift.

Kennan opposed the Vietnam War from the start mainly on pragmatic grounds (he testified against it in congressional hearings in 1966), and Vietnam probably did influence his thinking.  There are tensions in Kennan's views deriving partly from the way in which moral considerations are often kept unacknowledged or beneath the surface, with the biggest exception to this being his increasingly passionate writings, starting in the 1980s, about nuclear weapons. But I think Kennan remained ambivalent, at best, about democracy until the end of his life. These tensions (or contradictions) run through much of his career, complicating the idea of an un-named shift "to a more democratic, common-good oriented view." Still, it is interesting that some of the language in American Diplomacy, originally published in 1951, changed in the 1984 edition.

P.s. A minor point: "One of the leading post-WWII realists" would have been better than "the leading," since Morgenthau, Niebuhr, and Kennan are usually given roughly equal billing as the key figures of post-1945 American Realism, with Arnold Wolfers, John Herz, and some others not far behind. (Generationally speaking, Waltz and Kissinger come after this group.)

Added later: It's possible to put a somewhat more uncomfortable (for lack of a better word) gloss on Kennan's position on Vietnam, which would note that, in addition to his (correct) judgment that Vietnam was not a vital U.S. interest, he just didn't care much about the Third World (as it was then called) and didn't think non-Europeans (or non-descendants of Europeans) had much capacity for self-government. But going into that would require another post.

[To find previous mentions of Kennan on this blog, type "Kennan" into the search box in the upper-left corner.]

Hunger strike at Guantanamo continues

Amidst all the other news, some may have missed that a hunger strike by Guantanamo Bay prisoners, some of whom have been held for years without being charged and see no prospect of release, is ongoing. Some of the prisoners are being force-fed. (See this AP story here.) The topic has been covered extensively at this blog. One letter-writer to the blog I just linked suggests that only Amy Goodman (of Democracy Now) is discussing the hunger-strike story. That's not the case; the 'mainstream' press is covering it. Still, the story should be getting more attention than it has been getting.

Supreme Court to DC Circuit: keep right on ignoring us

Here.

In the wake of Boumediene

A piece by Robert Barnes in the Wash. Post makes it sound as if the Supreme Court's June 2008 decision in Boumediene v. Bush, which held that Guantanamo Bay detainees could challenge their detentions via writs of habeas corpus in federal court, has not had much of a practical effect. Barnes writes that the U.S. Court of Appeals for the D.C. Circuit, which had to work out the details of what rules would apply to detention hearings, has issued "a string of rulings" against the detainees which the Supreme Court has declined to review. "The bottom line," according to Barnes, "is that while Guatanamo's population has declined from around 270 at the time of the decision to 172 today because of decisions of the executive branch, not a single release has come as the direct result of a judicial order."

This statement, if one emphasizes the word "direct," may be technically correct, but it does not capture the story of what happened with the named plaintiffs in Boumediene, a story I found when a search on "Boumediene v. Bush" turned up the site of WilmerHale, the law firm which handled the case for the plaintiffs on a pro bono basis.

WilmerHale's post reminds those who had forgotten the facts (or never been too clear on them, such as myself) that the plaintiffs were six Algerians living in Bosnia who were transported to Gitmo by the U.S. government in 2002 and held there for more than five years before the Supreme Court's 2008 decision. The U.S. claimed among other things that they had been planning to attack the American embassy in Sarajevo. I pick up the story from the law firm's post:

In October 2008, WilmerHale filed the first-ever evidentiary response ("traverse") on behalf of Guantanamo prisoners, refuting the Government's asserted grounds for detention...

As a result of WilmerHale’s challenge, the US Government dropped its most inflammatory claim against the men, namely that they were planning to attack the US Embassy in Sarajevo in 2001. The US Government abandoned this claim even though President Bush had specifically mentioned it in the 2002 State of the Union address.

In November 2008, Judge Richard J. Leon of the US District Court in Washington DC held a seven-day hearing into the Government’s allegations. It was the first merits hearing in a habeas case involving Guantanamo prisoners. The hearing also included another first-time event: testimony by Guantanamo prisoners, live via videolink from Cuba, in support of their own bid for release.

On November 20, 2008, Judge Leon ruled that the Government had failed to show any credible evidence justifying detention of five of the six men. Judge Leon also took the extraordinary step of imploring the Government not to appeal that ruling. Judge Leon ruled against the sixth Petitioner, Belkacem Bensayah.

In December 2008, the Government informed WilmerHale that it would, indeed, forgo any appeal and abide by the ruling as to the five successful Petitioners. On December 16, 2008, three of WilmerHale’s clients—Mustafa Ait Idir, Hadj Boudella, and Mohamed Nechla—arrived safely home in Sarajevo, Bosnia, where they were met by elated family members and friends. This was the first time that the US Government has released Guantanamo prisoners in response to a court order. The remaining two successful petitioners, Lakhdar Boumediene and Saber Lahmar, were released and transferred to France in 2009.

WilmerHale appealed Judge Leon's denial of Belkacem Bensayah's habeas corpus petition to the US Court of Appeals for the District of Columbia... On June 28, 2010, the DC Circuit panel unanimously reversed and remanded Judge Leon's ruling, holding that the government's evidence was insufficient to demonstrate that Mr. Bensayah was detainable. This marks the first (and so far only) case in which the DC Circuit has reversed a district court's denial of habeas corpus to a Guantanamo prisoner.

So although Barnes's article is no doubt correct that the practical impact of the Boumediene decision has been much less than proponents had hoped, at least in the case of the original plaintiffs the decision did make a difference: the five who were released (the three who returned to Bosnia and the two who went to France) were set free in response to a court order, as the law firm's post says.

Why hasn't Boumediene benefited more detainees? The Barnes piece suggests that the U.S. Court of Appeals for the D.C. Circuit has weakened, if not undermined, the decision (he quotes the Center for Constitutional Rights as saying the D.C. Circuit has "openly defied" Boumediene). That is probably part of the reason; another may be that most detainees, unlike the Boumediene plaintiffs, have not been lucky enough to receive the skilled pro bono services of a big, very well-resourced law firm like WilmerHale. (This is not in any way to cast aspersions on the various lawyers who represent detainees, merely to note that resources can make a difference.)

P.s. Looking back at a post I wrote when Boumediene was decided, I see that Roberts in his dissent said the decision would have only a "modest practical impact," whereas Scalia in his dissent said it would have far-reaching and "disastrous" consequences. On this point, score Roberts one, Scalia zero. (But note that two commenters on my June 2008 post thought Scalia and Roberts were talking about different things, not making different predictions about the same thing. Whatever.)

The Ghailani verdict

"The face of the embassy had sheared off in great concrete slabs. Dead people still sat at their desks. The tar-covered street was on fire and a crowded bus was in flames. Next door, the Ufundi Building, containing a Kenyan secretarial college, had completely collapsed. Many were pinned under the rubble, and soon their cries arose in a chorus of fear and pain that would go on for days.... The toll was 213 dead...; 4,500 were injured, more than 150 of them blinded by the flying glass. The ruins burned for days."

Thus Lawrence Wright in The Looming Tower, describing the aftermath of the August 1998 bombing of the American embassy in Nairobi. There's no question that this and the bombing of the embassy in Dar es Salaam were reprehensible acts. Ayman al-Zawahiri had an al-Qaeda operative throw a stun grenade into the embassy courtyard in Nairobi, thereby drawing people to the windows. Wright notes: "One of the lessons Zawahiri had learned from his bombing of the Egyptian Embassy in Islamabad three years before was that an initial explosion brought people rushing to the windows, and many were decapitated by flying glass when the real bomb went off." (Looming Tower, p.307)

Despite the depraved character of these acts, however, it's not clear that the conviction of Ahmed Ghailani in New York federal district court on only one count (of conspiracy) as opposed to 200-some counts matters very much. As it is, he may well get a life sentence. Meanwhile Zawahiri, the mastermind of the operations, continues to reside ... somewhere (maybe North Waziristan, maybe not...).

The real issue that should be under discussion is why it has proved so difficult to close Guatanamo Bay (a myopically reluctant Congress deserves a fair amount of blame, no doubt), not the issue of whether detainees should be tried in civilian courts or military tribunals. That has already been debated ad nauseum, positions have hardened, and arguably the main beneficiaries of the entire discussion have been the lawyers, legal analysts, and other talking heads whom it has kept employed. When the definitive history of this whole episode is written, complete with endless litigation, the Supreme Court striking down the original military tribunals legislation, Congress rewriting and re-passing it, etcetera, not to mention the meager results to date -- unless I'm forgetting something, exactly one detainee so far has completed the military tribunal process, pleading guilty in a plea deal [added later: I am forgetting something; it's more than one] -- it will go down as one of the more monumental wastes of resources spawned by the 'war on terror'. It is hard to avoid the feeling that there had to have been a better way than this drawn-out mess. The British government has even concluded that it must pay compensation to several British citizens who were held in Guantanamo. And the talking heads on American TV go on discussing this is in little amnesiac bites, failing to see the larger picture and failing to remind people that they have been having these same factitious debates for years. All in all, a rather appalling spectacle.

'Recruitment tool'

One of the points at issue in the speeches today of Pres. Obama and former VP Cheney is whether Guantanamo Bay, use of "enhanced interrogation techniques" and so forth have been a "recruitment tool" for jihadists. Cheney, in particular, ridiculed the idea.

Actually, no one really knows whether or to what extent Guantanamo has been a "recruitment tool," because people signing up for terrorist activity do not usually write neat little explanations of their motives. In some cases, their motives may not be entirely clear even to themselves. (How many of us understand exactly why we do what we do?) My hunch is that civilian casualties from U.S./NATO operations in Afghanistan, as well as civilian casualties in Pakistan, are more powerful "recruitment tools" than Guantanamo Bay has been.

The main case for closing Guantanamo is not that it is a recruitment tool but that holding people indefinitely or for very long periods in a kind of legal limbo violates basic principles of the American legal and constitutional order, and jettisoning those principles here is unnecessary. Practically, the situation is a "mess," as Obama said today, and cleaning it up is not going to be easy. And with Democratic senators unwilling to show political courage in this context, the problem becomes that much more difficult.

Military tribunals for some detainees "still on the table"

See here.

'The Dark Side'

Jane Mayer's just-released book about the 'war on terror,' The Dark Side, makes reference to a report given by the Intl. Committee of the Red Cross to the CIA last year, concluding that interrogation methods used against certain top al-Qaeda detainees constituted torture. The New York Times reported this on July 11, in advance of the book's publication. Hat tip: the blog Elected Swineherd.
p.s. Mayer had apparently revealed the existence of the Red Cross report earlier, in one of her pieces in The New Yorker.
p.p.s. See also this post at Neither Property nor Style.

D. Kaiser on habeas

For those interested in the recent Supreme Court habeas corpus decision, David Kaiser at History Unfolding has a quite good post summarizing the decision; he thinks Kennedy's majority opinion may come to be seen as a landmark. He also has a postscript about Scalia's dissent.

Question for Roberts and Scalia

Does the right hand know what the other right hand is doing?

This question presented itself as I half-skimmed, half-glanced my way through the 134 pages of Supreme Court opinions in the latest detainee/habeas corpus case, Boumediene v. Bush. In particular, the question arose when I got to the dissents. There are two: one written by Chief Justice Roberts, which Justices Scalia, Alito, and Thomas joined; and one written by Scalia, which Roberts, Alito, and Thomas joined. There's just one little problem: the dissents start out by saying opposite things. Roberts says the majority opinion will have only a "modest practical impact" (or words to that effect) on the detainees' situation, so the case is less about the detainees, he asserts, than about a struggle over which branch of government gets to set policy in this area.

Although Scalia agrees that there is a struggle among the branches and indeed accuses the majority of holding an "inflated notion of judicial supremacy," Scalia, by contrast with Roberts, begins his dissent by declaring that the majority opinion will have "disastrous consequences." It will lead, he predicts, to more detainees being released than otherwise would occur, and some of these may return to the battlefield (as has happened in some previous cases where the military itself decided to release detainees).

"Modest practical impact" or "disastrous consequences"? Which is it, guys? You can't have it both ways.

p.s. No doubt someone else has already made this point, but I have read little commentary on the opinions, so any copy-cat-ism here is inadvertent.

Border incident (Cont.)

The U.S. today released grainy footage from an unmanned drone, purporting to show militants firing before the air strike that resulted in the deaths of 11 Pakistani soldiers. Nat'l Security Advisor Stephen Hadley, speaking in Rome, said that an investigation into what happened was underway and that it was still not entirely clear exactly what had transpired.

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As for the Supreme Ct decision on habeas corpus and detainees, it appears to be most welcome; I've not had a chance to read the opinions, so you'll have to look elsewhere for analysis, which shouldn't be too hard to find.