09 Sep 2008

Obama and Illegal Combatants

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During time of war, the Ancient Romans closed the doors of the Temple of Janus, symbolizing the cessation of normal operation of of the Law during war-time.

Barack Obama fought back against Sarah Palin’s convention speech attack yesterday, but just look at Obama’s idea of an effective counter-offense.

Jake Tapper:

“I have said repeatedly that there should be no contradiction between keeping America safe and secure and respecting our Constitution,” Obama said. “During the Republican convention, you remember during the Republican convention, one of them, I don’t know if it was Rudy or Palin … they said, ‘Well, ya know, Sen. Obama is less interested in protecting you from terrorists than … reading them their rights.’”

(It was Palin, who said “Al Qaeda terrorists still plot to inflict catastrophic harm on America — he’s worried that someone won’t read them their rights?”)

“Now, let me say this,” Obama continued, “first of all, you don’t even get to read them their rights until you catch them. So, I don’t know what, they should spend more time trying to catch Osama bin Laden and we can worry about the next steps later. Hah! I mean, seriously! These folks.

“Catch ‘em first!”

Obama said his position on this “has always been clear. It has always been clear. If you’ve got a terrorist, take ‘em out. Take ‘em out. Anybody who was involved in 9/11 –- take ‘em out.”

But, the former constitutional law professor argued, “What I have also said is this: that when you suspend habeas corpus — which has been a principle, dating before even our country, it’s the foundation of Anglo-American law — which says, very simply, if the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ and say, ‘Maybe you’ve got the wrong person.’

“The reason you have that safeguard,” he said, “is because we don’t always have the right person. We don’t always catch the right person. We may think this is Mohammed the terrorist, it might be Mohammed the cab driver. You may think it’s Barack the bomb thrower, but it might be Barack the guy running for president.

“The reason that you have this principle is not to be soft on terrorism, it’s because that’s who we are,” Obama said as the crowd rose to its feet, applauding. “That’s what we’re protecting. Don’t mock the Constitution! Don’t make fun of it! Don’t suggest that it’s un-American to abide by what the founding fathers set up! It’s worked pretty well for over 200 years!

Rather than demonstrating Obama’s appreciation of the American Constitution and its roots in Magna Carta and the English Common Law, Barack Obama is really proving the incapacity of the American liberal establishment, including most conspicuously himself, to understand the most elementary distinctions in law, or to remember as far back in time as Vietnam, Korea, or WWII.

Being liberal means having so little respect for tradition and the past that the current armed conflict must be treated by liberals as if it was the first such crisis in human history. From the liberal perspective (which is shared, I must admit, to a very large extent by the current administration), we must invent new policies and procedures for functioning in time of war. Never before, it seems, in the history of the United States have US forces actually dealt with enemy prisoners or illegal combatants.

Obama, and the rest of the American intelligentsia, is oblivious to the fundamental chasm between domestic civilian life and the very different and distinct regime of war. As the engraving above illustrates, the same distinction long predates habeas corpus, Magna Carta, and the Common Law of England. In the time of the Roman Republic, the principle of Inter arma, silent leges (“The laws are silent during the clash of arms.”) was well understood. The Romans closed the doors of the Temple of Janus during war-time to signal the inaccessibility of divine justice when Roman soldiers were fighting for their fatherland in the field.

No contradiction in supposing that habeas corpus, all the rights and immunities of American citizenship, all the protections of our system of laws, attorney representation and jury trials pertain to enemies of the United States captured overseas bearing arms against US forces and operating in open and flagrant violation of the customs and usages of war?

The notion that latrunculi. armed criminals taken prisoner in the course of their attempting to kill US soldiers, persons representing no country, wearing no uniform, and operating under no lawful authority or command, and routinely violating the laws and customs of war should be considered to have the same rights as a US citizen charged domestically with a crime is completely impractical and totally insane.

Obama’s position is intrinsically self-contradictory. On the one hand, we are apparently perfectly entitled to “take out” Osama bin Laden and persons involved in 9/11. But if US forces reduce to possession alive a bearded jhadi with AK-47 in hand, who moments earlier hurled a grenade at them, it’s time to Mirandize him and give him the phone number of Ron Kubbe. Are we to assume that issues of possible error and uncertainty and all the necessity for proof and assurance required in the case of ordinary illegal combatants vanishes in relation to persons believed to have been “involved” with 9/11?

The University of Chicago Law School should never have hired Obama. His understanding of the limits of the Law is defective, and he is not even sensitive to the grossest sorts of contradiction in his own theory.

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