Imperial Hubris and Through Our Enemies’ Eyes author Michael Scheuer, a former senior CIA official, tells Glenn Beck that the America’s only hope is for Osama bin Laden to detonate “a major weapon” here to get a “grass roots movement” going.

Words fail me.

Hilzoy pronounces herself “happy as a clam” with President Obama’s speech yesterday on national security issues, with one glaring exception:

But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who’ve received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans. These are people who, in effect, remain at war with the United States.Let me repeat: I am not going to release individuals who endanger the American people. Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.

This was followed by a long list of caveats about “fair procedures,” “the rule of law,” and “checks and balances.” While applauding the caveats, Hilzoy nonetheless retorts:

Preventive detention????????

No. Wrong answer

If we don’t have enough evidence to charge someone with a crime, we don’t have enough evidence to hold them. Period.

The power to detain people without filing criminal charges against them is a dictatorial power. It is inherently arbitrary. What is it that they are supposed to have done? If it is not a crime, why on earth not make it one? If it is a crime, and we have evidence that this person committed it, but that evidence was extracted under torture, then perhaps we need to remind ourselves of the fact that torture is unreliable. If we just don’t have enough evidence, that’s a problem, but it’s also a problem with detaining them in the first place. [all emphases original]

Were we talking about American citizens or even aliens captured on American soil, we’d be in agreement.  But we’re not.  These are people captured on the fields of battle of Afghanistan and Iraq.

Obama is quite right here:  “Al Qaeda terrorists and their affiliates are at war with the United States, and those that we capture — like other prisoners of war — must be prevented from attacking us again.”  It has long been established in international law that enemies captured on the field of battle are subject to detention through cessation of hostilities.

To be sure, the present conflict introduces a new murkiness.  We are not at war with a nation-state, so there is no one with whom to negotiate a definitive surrender or peace treaty.  Further, most of the combatants in detention are not privileged belligerents under the Geneva Conventions and other laws of war in that they wore no distinguishing uniforms or insignia, fought for no state, and were not part of a traditional resistance movement.   Many if not most are war criminals who hid amongst noncombatant civilians and/or used the cover of mosques, hospitals, and other protected sanctuaries as shields.

The problem with Guantanimo is not that we’re holding enemy combatants indefinitely but rather that we’ve flouted some of the rules of the Geneva Conventions, most notably in not establishing some minimal due process to allow people to present evidence that they’re not who we claim they are.   Additionally, we used “enhanced interrogation techniques” on a handful of captives that were quite probably torture and quite certainly a violation of the laws of war.  Obama, to his credit, has renounced all of these practices.

UPDATE: It’s worth noting, as Blake Hounshel and Chris Brose do, that they’d long since been abandoned by the Bush Administration, too.  Brose:

I don’t fear for America because of the policies Obama laid out today, because I agree with Jack Goldsmith that most of these policies are largely similar in their substance to where the Bush administration ended up, often as a result of shifts in its approach during the second term based on new facts that emerged and new perspectives that were gained. This is the irony of Cheney’s current position: Many of the policies he is arguing for now were in recent years rolled back by President Bush himself, or overturned by the Supreme Court. Closing Guantanamo is an exception, but it was Bush’s stated goal to do so, and people like Secretary Rice and John Bellinger and Matt Waxman worked tirelessly to do it. Closing it now, though difficult, is both right and necessary. So in all these ways, Cheney’s argument is with Bush as much as it is with Obama.

Quite right.   For all the talk of Cheney as the power behind the throne, he was increasingly an outlier in the administration whose counsel was taken but largely not followed.

Update (Alex Knapp): I am more inclined to agree with Kevin Drum than with Hilary Bok on this issue:

I appreciate the outrage, but this is a genuinely knotty problem. It was knotty under Bush and it remains knotty under Obama. For various reasons, some defensible and some not, Obama is right: there are almost certainly a small number of Guantanamo detainees who are (a) unquestionably terrorists and unquestionably still dedicated to fighting the United States, but (b) impossible to convict in any kind of normal proceeding.

At the same time, they aren’t American citizens. They were captured on a foreign battlefield, not U.S. soil. They are, essentially if not legally, prisoners of war in a war with no end. So what do we do?

One thing that I think we should not do is let the government say “trust us” on this. If there is evidence against particular detainees, then provide it. Then we can debate the legal channels. If the law needs to be changed, Obama can go to Congress. If it’s possible to extradite some of them because they have outstanding warrants in other nations, let’s look into that. I agree that this is a hard problem, and I also agree that the simple release of some terrorists puts Americans in danger, and that risk needs to be appreciated.

That said, there needs to be some kind of open, transparent process through which claims against such detainees can be evaluated and pains can be made to ensure that detainees that their detention continued are actually dangerous. We shouldn’t just take the President’s word on it. Not any President.

Update (James Joyner): I was about to append an update linking to Kevin’s post on this but noticed Alex already had.  I agree entirely with both of them on this matter.

Rusty Shackleford is hot on the trail of an Afghani arrested in California  for lying about his lack of association with terrorists.

The indictment, unsealed this morning, alleges [34 year old Ahmadullah Sais] Niazi hid associations with “Specially Designated Global Terrorists,” groups including Al Qaeda, Hizb-i-Islami and the Taliban, when he completed nationalization papers five years ago. During one visit, the government alleges Niazi visited Dr. Amin al-Haq, the security coordinator for Osama bin Laden.

Worth keeping an eye on.

A team of UCLA geographers have found Osama bin Laden.

They’ve published an article in the MIT International Review scientifically narrowing his locations to one of three houses in North West Pakistan!

Amazingly, this was not the journal’s cover story.

German Bundeswehr army soldiers of the ISAF monitor a valley during a mission near Kunduz, Afghanistan on September 26, 2008. (REUTERS/Fabrizio Bensch)

Over at New Atlanticist, I discuss “Obama’s Afghanistan Plan,” noting that actually achieving results will prove far more difficult than criticizing the Bush administration.

My main criticism is of his continued harping on catching Osama bin Laden:

[I]t would be ironic indeed if a Democratic successor to Bush seriously made tracking down a single terrorist a high priority.  Outgoing Democratic Party chairman Howard Dean caught a lot of flack when he said that the capture of Saddam Hussein would have little practical impact on our success in Iraq, he turned out to be absolutely right.  Putting bin Laden’s head on a stick — or capturing him and subjecting him to the indignity of an international criminal tribunal — would be enormously satisfying but have approximately zero impact on either stabilizing the region or combatting international terrorism.

The main cause for hope:

The good news, though, is the talk of a “regional approach.”  While it’s just silly to say that the Bush administration is still treating Pakistan and Afghanistan as separate issues, they certainly seemed to do that far too deep into this process.  Certainly, Obama will be much more likely to bring Iran and Syria into the mix.  Whether he can ultimately be successful is another question entirely.  But it’s certainly worth trying.

The bottom line:  “Will Obama make the same mistake as the current president in not setting achievable goals for the mission?”

OTB projects that Obama has won the District of Columbia’s 3 Electoral Votes.   Osama bin Laden could run as a Democrat and win in DC, so it’s not exactly news.

Salim Hamdan, the former driver and bodyguard for Osama bin Laden convicted by a U.S. military tribunal Wednesday, could be released from prison before President Bush leaves office.

The U.S. military jury sentenced the Yemeni prisoner Thursday to just 5 1/2 years in prison, including five years and a month already served at Guantanamo Bay. U.S. authorities insist they could still hold him indefinitely without charge, but defense lawyers and human rights groups say the military will face pressure to release him at the end of his sentence.

The judge, Navy Capt. Keith Allred, called Hamdan a “small player,” and the jury apparently agreed, rejecting the recommendation of prosecutors who said even a life sentence would be fitting in order to send an example to would-be terrorists. “I hope the day comes that you return to your wife and daughters and your country, and you’re able to be a provider, a father and a husband in the best sense of all those terms,” Allred told Hamdan at the close of the hearing.

The prisoner, dressed in a charcoal sports coat and white robe, responded: “God willing.”

Hamdan thanked the jurors for the sentence and repeated his apology for having served bin Laden. “I would like to apologize one more time to all the members and I would like to thank you for what you have done for me,” Hamdan told the five-man, one-woman jury, all military officers picked by the Pentagon for the first U.S. war crimes trial in a half-century. Hamdan raised both hands in the air and waved as he left the courtroom, saying “bye, bye everybody” in English.

Surreal.

At first blush, this would seem an odd result from a kangaroo court of military officers simply carrying out their orders and doing what the government, who wanted Hamdan convicted of a much more serious charge and sentenced to the maximum penalty of life in prison, wants.  But it just goes to show how clever they are.

The most outrageous headline I’ve seen in quite some time, at least from a legitimate media outlet, is the one that accompanies this morning’s NYT editorial on yesterday’s verdict in the Hamdan case: “Guilty as Ordered.”

Now that was a real nail-biter. The court designed by the White House and its Congressional enablers to guarantee convictions of high-profile detainees in Guantánamo Bay, Cuba — using evidence obtained by torture and secret evidence as desired — has held its first trial. It produced … a guilty verdict.

The military commission of six senior officers (whose names have not been made public) found Salim Ahmed Hamdan, who worked as one of Osama bin Laden’s drivers until 2001, guilty of one count of providing material support for terrorism.

The rules of justice on Guantánamo are so stacked against defendants that the only surprise was that Mr. Hamdan was actually acquitted on the more serious count of conspiring (it was unclear with whom) to kill Americans during the invasion of Afghanistan after Sept. 11, 2001.

Now, as longtime readers know, I’ve not been a fan of Guantánamo, the lack of minimal due process for those accused of being illegal combatants generally, or the treatment of Hamdan in particular.  Further, I agree with the editorial’s larger point that the way in which Hamdan was convicted taints the process.

That said, the accusation, without the slightest hint of proof or argument, that the jurors violated their oath to judge Hamdan according to the evidence and their conscience, without regard to the wishes of the command, is libelous.  Indeed, the fact that the jury acquitted Hamdan of the most significant charge against him serves as prima facie rebuttal of that charge.

Further, the fact that they found Hamdan guilty of the lesser charge of “providing material support for terrorism” is hardly a demonstration of kowtowing to superiors.   After all, Hamdan did not dispute that he was Osama bin Laden’s driver and bodyguard.  As with the driver of the getaway car in a felony, Hamdan was definitionally guilty once that fact was established.

Rather than besmirch the character of sworn officers doing their duty and producing an honest and courageous verdict, the real target of the Times should have been the process by which the trial took place. Aside from the general litany of issues surrounding Gitmo and the unlawful combatant designation, the fact of the matter is that the crime of “providing material support for terrorism” was established years after Hamdan was in U.S. custody.  He was, therefore, convicted of an ex post facto law.  Indeed, one could argue he was additionally subject to a bill of attainder.

Dave Schuler and I spent the first twenty minutes or so of last night’s episode of OTB Radio (”Hamdan, Cheeks, and Paris Hilton”) discussing the case in particular and the issue of detentions of terrorist suspects in general.  The bottom line here is that there are no easy answers.  Neither of us like this process one bit but we don’t have an alternative process in mind that we’d like much better.  People like Hamdan are in fact dangerous and very much ought be taken out of commission.  They are, however, entitled to some minimal standard of due process to at least establish that they are who they’re claimed to be.  And they shouldn’t be imprisoned for seven years before getting said due process.  Beyond that, though, it’s not entirely clear how these cases should be handled.

UPDATE: This kangaroo court of military officers simply carrying out their orders ignored the prosecutor’s appeal for the maximum penalty of life in prison and sentenced Hamdan to time served plus five months. It just goes to show how clever they are!

Al Qaeda number 2 Ayman al-Zawahiri was severely wounded in a US predator strike earlier this week, CBS is reporting.

Ayman al-Zawahiri – the second most powerful leader in al Qaeda and Osama Bin Laden’s No. 2 – may be critically wounded and possibly dead, CBS News chief foreign affairs correspondent Lara Logan reports exclusively.

CBS News has obtained a copy of an intercepted letter from sources in Pakistan, which urgently requests a doctor to treat al-Zawahiri. He’s believed to be somewhere in Pakistan’s remote tribal areas of Pakistan. The letter refers to Sheikh Dr. Ayman al-Zawahiri by name – and says that he is in “severe pain” and his “injuries are infected.”

It is reportedly written by local Taliban leader, Baitullah Mehsud, whose signature and seal are visible on the letter. The Taliban logo and the Mehsud’s seal have been confirmed by experts as legitimate.

The letter is dated July 29 – one day after a U.S. air strike that killed al Qaeda weapons expert Abu Khabab al-Masri, and five other Arabs in South Waziristan.

U.S. authorities have said they do not have information that al-Zawahiri was present during Monday’s strike, or that he was injured. However, a counter-intelligence expert and other U.S. officials confirmed to CBS News that the U.S. is looking into reports that al-Zawahiri is dead.

One would imagine. Given the number of false reports of successful strikes on key al Qaeda leaders, skepticism is of course warranted. Bill Roggio thinks we should be especially dubious of this report given its Pakistani origins and the fact that al Qaeda hasn’t issued a martyrdom report.

Even if Zawahiri’s death is verified, it’s unlikely to have much lasting impact. Al Qaeda is a brand name as much as it is a traditional terrorist group at this stage and there are more than enough people who can plan attacks on soft targets.

Still, it would be nice to see this guy pay for his crimes.

Two things to follow up on my post on The Dark Knight and foreign/security policy.

First, in thinking more about the movie, I will say that there are two scenes/actions by Batman that could be seen to mirror part of the GWoT debate (and I will be vague so as not to spoil anything). There is an interrogation scene and a scene about surveillance that raises privacy questions. I note, however, that in both cases they deal with a person who is known to be guilty and not only guilty, but still in the process of committing extremely violent crimes. Much like scenes in 24 or the ever-popular ‘ticking timebomb” scenario, the guilt and threat presented by the person against whom extraordinary measures are being used is unambiguous.

Of course, the irony on the interrogation scene is the information that the interrogator wants is ultimately freely shared (no extraordinary interrogation techniques were actually needed) and in regards to the privacy issue there is a rather clear check on the system that makes abuse of the system impossible. And again, in both scenes, the only person being harmed is as guilty as one can be–no real moral conundrum at all.

All of this feeds into my next point, which is that Matthew Yglesias captured well in the following sentence my basic point about the comparison of the movie to reality and where I disagree with Klavan as well as most of the commenters at OTB about the post:

I think Cheney would look at the movie and say “see — this is what we’re doing.” I look at the movie and say “see — if you were fighting a comic book bad guy and you were a comic book hero then your policies would make sense.”

And this is my basic point: the paradigm in fighting terroristic organizations is hardly that of the fight against the supervillain (regardless of how it is often presented as such to the public). As I noted yesterday, the destruction of Saddam (the supervillain in Iraq) did not solve the problem and while getting Osama bin Laden would be great, that won’t solve the problem of Islamic extremism. In the movies catching the Joker ends that problem, in real life getting the iconic leader may solve nothing.

Beyond that, like in the interrogation and surveillance examples above, the issues in the movie/comic is straightforward: focusing such tools only on the known supervillain. Yet in real life those tools end up being used on persons other than the villain because we are not always sure who the villain is. In the real world, people who don’t deserve to be sent to Guantanamo and hardly interrogated are and in the real world the innocent get caught up in the surveillance dragnet.

Put another way, let me quote Porch Dog:

this is precisely why I would discourage people from trying to find the exact, real-world fit for the commentary made in The Dark Knight…it’s fantasy….real over the top, adolescent-inspired fantasy. The main character is a ninja that dresses up like a bat. The main bad guy is the lead singer of the Insane Clown Posse.

As such, it makes for a poor guide to much of anything in the real world.

Readers may be familiar with the Green Lantern Theory of Geopolitics (short version: the US can do whatever it wants if it just has even willpower). Now, it appears we can add another member of the Justice League to our understanding of foreign policy. On Friday, author Andrew Klavan had a piece in the WSJ comparing Batman and George W. Bush (yes, you read that correctly): What Bush and Batman Have in Common

A cry for help goes out from a city beleaguered by violence and fear: A beam of light flashed into the night sky, the dark symbol of a bat projected onto the surface of the racing clouds . . .

Oh, wait a minute. That’s not a bat, actually. In fact, when you trace the outline with your finger, it looks kind of like . . . a “W.”

There seems to me no question that the Batman film “The Dark Knight,” currently breaking every box office record in history, is at some level a paean of praise to the fortitude and moral courage that has been shown by George W. Bush in this time of terror and war. Like W, Batman is vilified and despised for confronting terrorists in the only terms they understand. Like W, Batman sometimes has to push the boundaries of civil rights to deal with an emergency, certain that he will re-establish those boundaries when the emergency is past.

Call me crazy, but I am betting pretty heavily that the producers of the latest Batman flick aren’t out to sing the praises of the 43rd president, but oh well.

Klavan’s piece seems to have two basic points within it. One is about about foreign/security policy under the war on terror and the other is about movies on general.

The Batman Theory of Foreign Policy. The logic here appears to be the brute force and general havoc is sometimes necessary when going after the bad guys. Batman works in the shadows and seeks to control crime in Gotham by brute force and by doing things that the cops can’t do. However, Klavan’s view that one can actually look at Batman as even a useful allegory about the war on terror illustrates perhaps the key problem with what has been the underlying logic in much of the Bush administration’s approach to counter-terrorism, i.e., that it is that it is all very simply: just punish the bad guys.

There are two basic assumptions inherent in the overall approach: 1) whatever the good guy does in pursing the bad guy is ultimately good and is justified because the good guy only wants good, and 2) the good guy only using his powers against the bad buys. It assumes above all else that it is easy to identify the bad guys, as in movies (or the comics) where they wear costumes and they are quite obvious in their malefaction. For example, the most ardent supporters of the administration think that this is the way the War on Terror works–for example, that everyone at Gitmo is obviously a terrorist (even if we know that that is not the case) and that they are all on the same level as Osama bin Laden and the 9/11 hijackers. In that world, just having the wrong name or being in the wrong place at the wrong time isn’t a problem as the wrong people are never punished or harmed because, again, we know who the bad guys are and no mistakes are ever made. In the comics, only the bad guys are punished and they deserve everything that they get. The neoconservatives like to think that that is what happens in real life, but it isn’t and one cannot formulate policy based on that notion as whenever a nation-state starts to throw its weight around, innocents will always be hurt and to pretend otherwise is foolishness.

Indeed, it would seem that we thought that that Batman approach was going to work in Iraq: jump in, defeat the supervillan (Saddam) and his henchmen and that would solve all the problems. Lest anyone didn’t notice, unlike in the comics, defeating the head honcho didn’t fix everything in Iraq–not by a longshot.

And, I suppose that when it comes to Dubya’s Rogue’s Gallery, the less said about Osama bin Laden the better, or the fact that Bush ultimately negotiated with Kim Jong Il and with the Iranians as well.

“Conservative” Movies. Part of what Klavan is dealing with as well is that notion that Batman represents a specific type of “conservative” movie:

“The Dark Knight,” then, is a conservative movie about the war on terror. And like another such film, last year’s “300,” “The Dark Knight” is making a fortune depicting the values and necessities that the Bush administration cannot seem to articulate for beans.

In regards to movies and ideology he states:

time after time, left-wing films about the war on terror — films like “In The Valley of Elah,” “Rendition” and “Redacted” — which preach moral equivalence and advocate surrender, that disrespect the military and their mission, that seem unable to distinguish the difference between America and Islamo-fascism, have bombed more spectacularly than Operation Shock and Awe.

Why is it then that left-wingers feel free to make their films direct and realistic, whereas Hollywood conservatives have to put on a mask in order to speak what they know to be the truth? Why is it, indeed, that the conservative values that power our defense — values like morality, faith, self-sacrifice and the nobility of fighting for the right — only appear in fantasy or comic-inspired films like “300,” “Lord of the Rings,” “Narnia,” “Spiderman 3″ and now “The Dark Knight”?

First, I am not sure why these are “conservative” movies, per se (although of those mentioned, 300 was pretty clearly embraced as a neoconservative opus—see a discussion of this here.). I don’t think that it is legitimate to say that the presence of a clear good guy and a clear bad guy means that a movie is necessarily “conservative.” While Klavan asserts that these views can somehow only be projected by Hollywood by “putting on a mask” the main thing that all of these movies have in common is that they are all fantasies and are ultimately simple tales where the good guys and bad guy are clear and the script can control how the tale ends (indeed in all of these movies we know from the very beginning that Good with triumph over Evil—which is at least in part why we go see them in the first place). The sad thing is that in the real world it is rarely that simple, and even when it is the end of the story is not predetermined.

I have seen none of the “left wing” films he cites, so cannot comment on their content, however to compare their box office performance to the blockbuster fantasy films (and I have seen all of those listed except 300) in question is absurd. Even if they had been realistic yet “conservative” films about the war on terror, they would have likely bombed as well. Let’s face facts: mass appeal movies are escapist vehicles, and realistic films tend not to do that well at the box office. Indeed, I suppose that United 93, which I did see, was a realistic “conservative” movie about terrorism and it hardly had the same box office as the LotR trilogy. United 93 simply wasn’t entertaining, while The Return of the King was.

The only “realistic” movie that I suspect that Klavan would consider “left wing” of this type that I can think of that I have seen was The War Within, which did show the radicalization of a young Pakistani man as the result of a rendition by the CIA. The film’s goal was not to justify terrorism but it did make the clear argument that bad choices made by the US and its allies can have horrible consequences. Such films may not make us cheer, but they may make us think, which is hardly a bad thing.

On the Evil Question. Understand, I am not saying that there isn’t evil in the world, there clearly is (and yes, sometimes people don’t want to call it that). I will even admit that I initially applauded Bush’s “Axis of Evil” notion, but the reality is, stark views of the world work better in the world of fiction than in the real one and often make it more difficult to accomplish one’s goals. For example: if one of our national goals is to prevent Iran from acquiring a nuclear weapon, then having tagged them as “evil” makes dealing with them a tad difficult. How does one sit down and talk to evil? After all, as Klavan notes, Batman simply pummels evil. Beyond that, if I have called you evil, do you really want to talk to me? And there is the fact that by invading one Axis state (Iraq) we upped the ante on the security dilemma for the Iranians making the acquisition of nuclear weapons even more desirable to them from their point of view. Ultimately we haven’t been well-served by this approach.

In the movies Mordor is an unrepentant, unredeemable place filled with nothing but evil (Sauron, Nazgûl, Orcs and the like). If it is destroyed, nothing good dies; no innocents are harmed. However, the same cannot be said, for example, of North Korea or Iran. Even if one casts Kim Jong Il or Mahmood Ahmejinedad in the Sauron role, the people of those states are as often the victims of their governments rather than the teeming minions of evil. Beyond that, in the movie the destruction of evil is ultimately a fairly simply thing: put Ring A in Volcano B. Sure it was hard to get there, and there was self-sacrifice along the way, but it was still a pretty easy plan. There is no such easy path in the real world, which is why comic books and fantasy novels aren’t particularly good blueprints for foreign policy.

John McCain trotted out a new sound byte yesterday:

This is a clear choice that the American people have. I had the courage and the judgment to say I would rather lose a political campaign than lose a war. It seems to me that Obama would rather lose a war in order to win a political campaign.

Here’s the video, which provides a little more context:

Marc Ambinder says he used the line at least twice and, indeed, has a slightly different variant on the theme.

Most of the reaction to this has come from the Left and, as one would expect, they find it “outrageous” and “appalling” and “scurrilous.” I think it’s less than that, although a decidedly poor way to advance the debate.  It’s a hamhanded way of creating a memorable parallelism but one that falls flat.

Interestingly, this debate is happening simultaneously with a very much related one over Obama’s interview with Katie Couric on the success of the Surge.  Couric asks him, repeatedly, whether the Surge worked and he says, in effect, that American troops have done a great job in tamping down violence but that it’s not achieving worthwhile goals.

What happens is that if we continue to put $10 billion to $12 billion a month into Iraq, if we are willing to send as many troops as we can muster continually into Iraq? There’s no doubt that that’s gonna have an impact. But it doesn’t meet our long-term strategic goal, which is to make the American people safer over the long term. If that means that we’re detracting from our efforts in Afghanistan, where conditions are deteriorating, if it means that we are distracted from going after Osama bin Laden who is still sending out audio tapes and is operating training camps where we know terrorists’ actions are being plotted.

If we have shifted away from the central front of terrorism as a consequence of enormous and continuing investments in Iraq, then that’s a poor strategic choice. And ultimately, what we’ve got to do is – we have to recognize that Iraq is just one of our … security problems. It’s not the only one.

We’ve got big problems in Afghanistan. We’ve got a significant threat in Iran. We’ve got to deal with Pakistan and the fact that there are safe havens there. Those are all the factors and all the issues that I’ve gotta take into account when I’m president of the United States.

McCain believes that Iraq is a central front, if not the central front, in the war against terrorism and that pulling out short of total victory would be to lose that war.  He thinks he was right and  Obama was wrong on the Surge and resents that he’s not getting more credit for that.  Further, reading between the lines, I gather that he thinks Obama knows the Surge worked and thinks we can win, too, but is unwilling to change course at this stage on his signature issue:  Getting us out of Iraq as soon as possible.

Tactically, the two men’s positions are much more similar than they’d have you believe.  Both will reduce the number of forces in Iraq and would still have a sizable force in Iraq well beyond the sixteen month mark of their presidency.  Their strategic visions, however, are starkly different:  McCain wants to win a war he thinks was necessary and Obama wants to cut his losses on one he believes is a mistake.

Does Obama want to lose the war?  Of course not.  But, from McCain’s perspective, Obama’s plan would snatch defeat from the jaws of victory.

Dean Barnett wins my Head Scratcher of the Day award for this:

If we had a “Most Offensive Quote of the Day” every day, Joe Biden would probably come to own the prize. But even by the senator’s lofty standards of chronic obtuseness, he outdid himself this afternoon:  “If John (McCain) wants to know where the bad guys live, come back with me to Afghanistan. We know where they reside. And it’s not in Iraq.”

There’s nothing even mildly offensive, or even obtuse, about this.  Barnett goes on a harangue about how this is insulting to American troops fighting in Iraq, who are facing “bad guys” every day.  But that’s just plain silly.  Biden’s fully aware of what’s going on there and certainly isn’t dishonoring their service.   His son, Captain Beau Biden, is an Operation Iraqi Freedom veteran, after all.

The “bad guys” Biden is talking about are Osama bin Laden and Al Qaeda Central.  As even our military leaders have told us, Al Qaeda in Iraq is all but finished.

Of course, as AllahPundit points out, by that definition, the “bad guys” don’t live in Afghanistan either.  (Hint:  They’re probably in another ‘Stan nominally governed by the American ally next door.)  Further, he correctly notes, “some of the bad guys have been known to turn up in Iraq from time to time.”

Warren Street, writing for a blog that desperately needs a name change, figures that there are “bad guys” all over and that we’re selective about which ones we should go after. Which, of course, is true.

Were American troops not presently in Iraq, we surely wouldn’t send them into the existing mess now to deal with the “bad guys” we’re currently fighting.  But the fact of the matter is that we are there now and the mess is largely one of our own making.  Withdrawing from it to take on other sets of “bad guys” would have profound consequences.

The liberal blogs are in a tizzy about the cover of the July 21 New Yorker, an illustration by Barry Blitt which shows the Obamas in terrorist outfits, doing a fist bump with a big portrait of Osama bin Laden over their mantle with an American flag burning in the fireplace:

Given that this is the liberal New Yorker and that the magazine is aimed at liberal urbanites, it’s rather obvious that this is poking fun at conservatives, not the Obamas.  It’s provocative, sure, but how better to generate buzz and sell extra copies at the newstand?  Quick:  What was the last New Yorker cover that generated any discussion at all? No, I don’t remember, either.

That was essentially Kevin Drum’s initial reaction, too.  He quickly changed his mind:

Maybe it’s because this kind of satire just doesn’t work, no matter how well it’s done. But mostly it’s because a few minutes thought convinced me it was gutless. If artist Barry Blitt had some real cojones, he would have drawn the same cover but shown it as a gigantic word bubble coming out of John McCain’s mouth — implying, you see, that this is how McCain wants the world to view Obama. But he didn’t. Because that would have been unfair. And McCain would have complained about it. And for some reason, the risk that a failed satire would unfairly defame McCain is somehow seen as worse than the risk that a failed satire would unfairly defame Obama.

HuffPo’s  Rachel Sklar is similarly thoughtful:

Presumably the New Yorker readership is sophisticated enough to get the joke, but still: this is going to upset a lot of people, probably for the same reason it’s going to delight a lot of other people, namely those on the right: Because it’s got all the scare tactics and misinformation that has so far been used to derail Barack Obama’s campaign — all in one handy illustration. Anyone who’s tried to paint Obama as a Muslim, anyone who’s tried to portray Michelle as angry or a secret revolutionary out to get Whitey, anyone who has questioned their patriotism— well, here’s your image.

As one might expect, some were less nuanced.  Duncan “Atrios” Black takes the cake with, “Shouting ‘n****r’ is ok as long as you mean it ironically.”  John Aravosis gets honorable mention with:

Okay, what do we do about this? I want suggestions. This is what we have to deal with in America, as Democrats. A liberal media that bends over so far backwards to be “fair” that it becomes just as bad as FOX News. A liberal publication like the New Yorker thinks it’s funny to make Mrs. Obama some radical black panther, Barack Obama basically a terrorist (you’ll note that he looks just like Osama bin Laden on the wall), and they’re even burning the American flag in the Oval Office (that’s supposed to be the White House, get it?). They put Osama bin Laden on the wall of the Oval Office. And this is funny? Is the New Yorker so out of touch that they don’t realize that much of America, or at least too much of America, harbors these very concerns about Obama and his wife? I’m sure the New Yorker thinks they’re actually poking holes in the myth by making light of the stereotypes. Yeah, and tell us how this pokes fun at the stereotype? It reinforces it.

Taylor Marsh wonders, “Is the appreciation for political satire dead?”

The only way to combat a myth is to broaden it, hype it, make a satirical target out of it. The cover of The New Yorker does just that, but does it make the further statement? Does it go far enough, instead of simply repeating the smears in another form? Where’s the slap at the smear artists, which is obviously who the artist is mocking? The [Village Voice] Hillary image [featured and discussed in the post] has the same problem. It doesn’t depict the fighter rising from the battle. Is simply repeating wingnut talking points enough or does that provide more fuel for the smears instead of mocking them?

Barack Obama wasted no time in fanning the flames out outrage — and Team McCain joined in:

The Obama campaign quickly condemned the rendering. Spokesman Bill Burton said in a statement: “The New Yorker may think, as one of their staff explained to us, that their cover is a satirical lampoon of the caricature Senator Obama’s right-wing critics have tried to create. But most readers will see it as tasteless and offensive. And we agree.” McCain spokesman Tucker Bounds quickly e-mailed: “We completely agree with the Obama campaign, it’s tasteless and offensive.”

Whether the image is “offensive” is a matter of opinion, I suppose.  Certainly, it’s far less so than any number of editorial cartoons that come out every day.  (Consider the work of Ted Rall, for example.)  But, yeah, it’s probabably “tasteless.” The cover of the New Yorker is simply different than a political cartoon inside a paper.

I do, however, think it will achieve its desired effects.  First and foremost, it’s already generating more buzz than any issue in the magazine’s recent history.  More importantly, though, it will lead to a round of discussion of the “Obama is a Muslim” nonsense on the various talking heads shows.  This, in turn, will force Republican operatives to state, over and over, that they don’t think Obama is a Muslim, a terrorist, an America hater, and so forth.  That’s probably the only way this silly meme goes away.

Memeorandum has tons more reactions: QandO, Top of the Ticket, HorsesAss.Org, Pajamas Media, American Power, Ketchup and Caviar, Taylor Marsh, BLACKFIVE, Blue Girl, Red State, Polimom Says, Macsmind, Gateway Pundit, Riehl World View, The Plank, The Page, Roger L. Simon, Althouse, JammieWearingFool, Doug Ross, The Strata-Sphere, The Volokh Conspiracy, Moonbattery, The Daily Dish, Blog of the Moderate Left, AMERICAblog News, Feministe, Wake up America, Pensito Review, The Raw Story, Michelle Obama Watch, Buck Naked Politics, Newshoggers.com, Ben Smith’s Blogs, The Corner, NO QUARTER, Scripting News, THE ASTUTE BLOGGERS, Flopping Aces, TalkLeft, The Confluence, FOX Embeds, Eunomia, The Sundries Shack, Sister Toldjah, TBogg, Pandagon, Macsmind and Viking Pundit

Terrorist suspects detained at Guantánamo Bay (and presumably, anyplace else under American jurisdiction) have the right to file habeus corpus petitions in U.S. civilian courts the Supreme Court ruled today in a 5-4 decision. Further, Congress could not pass a law waiving these protections absent rebellion or invasion.

Justices Rule Terror Suspects Can Appeal in Civilian Courts (David Stout, NYT)

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for the court.

The ruling came in the latest battle between the executive branch, Congress and the courts over how to cope with dangers to the country in the post-9/11 world. Although there have been enough rulings addressing that issue to confuse all but the most diligent scholars, this latest decision, in Boumediene v. Bush, No. 06-1195, may be studied for years to come.

The justices rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate. “The costs of delay can no longer be borne by those who are held in custody,” Justice Kennedy wrote, assuming the pivotal rule that some court-watchers had foreseen. Joining Justice Kennedy’s opinion were Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, generally considered the conservative wing on the court.

The 2006 Military Commission Act stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees challenging the bases for their confinement. That law was upheld by the United States Court of Appeals for the District of Columbia Circuit in February 2007.

[...]

The detainees at the center of the case decided on Thursday are not all typical of the people confined at Guantánamo. True, the majority were captured in Afghanistan or Pakistan. But the man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990’s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — “plucked from their homes, from their wives and children,” as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5. The Supreme Court of Bosnia and Herzegovina ordered them released three months later for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantánamo.

High Court ruling may delay war crimes trials (Mark Sherman, AP)
es were in the majority.

Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Kennedy said federal judges could ultimately order some detainees to be released, but that such orders would depend on security concerns and other circumstances.

[...]

It was not immediately clear whether this ruling, unlike the first two, would lead to prompt hearings for the detainees, some of whom have been held more than 6 years. Roughly 270 men remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.

The ruling could resurrect many detainee lawsuits that federal judges in Washington put on hold pending the outcome of the high court case. The decision sent judges, law clerks and court administrators scrambling to read Kennedy’s 70-page opinion and figure out how to proceed. Chief Judge Royce C. Lamberth said he would call a special meeting of federal judges to address how to handle the cases.

The decision also cast doubt on the future of the military war crimes trials that 19 detainees are facing so far. The Pentagon has said it plans to try as many as 80 men held at Guantanamo. The lawyer for Salim Ahmed Hamdan, Osama bin Laden’s one-time driver, said he will seek dismissal of the charges against Hamdan based on Thursday’s ruling. A military judge had already delayed the trial’s start to await the high court ruling.

[...]

The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.

[...]

In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.

Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

I fear Scalia is right on that score. That’s not, however, sufficient reason to abandon our most fundamental principles.

I’ll withhold final judgment until I’ve had time to read the opinion (which is over 70 pages!) and the dissents. I view this case in a different category than those dealing with U.S. citizens, which I considered slam dunk violations of the Constitution. Foreign nationals, especially those captured abroad, have less protection under the Constitution. Indeed, offhand it seems to me that our treaty obligations (Geneva, etc.) are a better basis for adjudicating these matters than the civil courts.

Lyle Denniston observes,

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.

I was momentarily apoplectic until I re-read it and saw the “U.S. citizens” part. With that modifier, it’s a no-brainer.

Aside from whether the Justices got the law right, Cernig’s public policy take strikes me as quite right:

Some very bad people are likely to walk free along with the innocent because the Bush administration tried to walk around domestic and international principles of law, creating an entirely spurious new designation of “unlawful combatant” so that they could either hise detainees from due process indefinitely or, failing that, conduct kangaroo courts.

If they’d just stuck with the existing definitions, all the Gitmo detainees against whom they could build a real case under the actual rules of law, without torture and without rigging the courts, would have been tried as POW’s already. If found guilty, the death penalty would have been warranted in some cases. I would personally have had no problem with that.

Me either.

Kevin Raybould is more succinct:

If these people are prisoners of war, then treat them as such. If they are not, then they are criminals and should be treated the same as every other criminal in the care of the federal government. Inventing a third class of people that the executive gets to do with as they please cannot be an option under our constitution.

Most excited reactions:

• Damozel: “[A]nyone who can’t decide whether they hate the thought of an Obama presidency more than a McCain presidency needs to think long and hard about the implications of this 5-4 split. Federal judicial protection of individual rights, and individual privacy — and not only those of enemy combatants — are already hanging by a thread.”

• Michelle Malkin: “What’s that sound? The thunder of left-wing lawyers and Gitmo detainees jumping up and down for joy at the Supreme Court’s ruling this morning.”

• John Hawkins: “[T]his decision has nothing to do with the Constitution and everything to do with liberalism’s unending sympathy towards any enemy of our country.”

• Debbie Schlussel: “[T]he Supreme Court has announced to world that every terrorist, no matter how bent on destroying America–and regardless of whether or not the terrorist had any contact with American soil–now has a right to their own three ring court circus, MC’d by some ringmaster clone of Judge Ito and attended by his/her posse of O.J. jury replications”

Other reax (lawyers up front):

• Orin Kerr: “Nothing I’ve seen in the Court’s opinion so far is at all surprising, and it’s a big defeat for the Bush Administration.”

• Steve Bainbridge: “I take Scalia’s point and have some sympathy for the position. After all, the Constitution is not a suicide pact. Yet, I am reminded of Benjamin Franklin’s aphorism that those who give up an essential liberty for temporary security deserve neither liberty or security.” He’s also interested that SCOTUS simply ignored Congress’ taking away their jurisdiction on this — which the Constitution gives them a plenary right to do.

• Marty Lederman: “[B]ecause the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.”

• Armando: “Apparently, the Supreme Court agreed with me and disagreed with the DC Circuit Court of Appeals.”

• Ed Morrissey: “It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too?”

• Sean Hackbarth: “From my plain reading of the constitution I don’t see that it applies to non-U.S. citizens. . . . I think war-fighting has already gotten too legalistic with military leaders asking lawyers to approve actions to cover themselves.”

• John Cole: “ACTIVIST JUDGES! ACTIVIST JUDGES!”

• Matt Yglesias: “I bet all those dirty hippies who said that John Roberts would be another Scalia feel sorry now completely vindicated.”

• Radley Balko: “I guess the only question now is whether the administration feels it’s actually obligated to abide by the decision, or if it believes the president’s absolute power in wartime means that in addition to ignoring Congress, he can ignore the Supreme Court, too.”

memeorandum, doubtless, has even more links.