Monday, May 9, 2011

Something Strange This Way Comes

By Michael David Rawlings

While Obama has shown that he does not respect the rule of law, to say that the killing of "an enemy combatant" is the same thing as the killing of "a civilian" is not the rule of law, but the rule of technicalities.

Was there ever any question about what the fate of Osama bin Laden would be once we caught up with him?

Capture? Trial? Burial in the ground?

For reasons that should be obvious, given the nature and the mentality of the enemy, none of these options were ever on the table. But more to the point, Judge Napolitano, in what world do you imagine that the Osama bin Laden of this world would have ever thrown up his hands and surrendered? There was never any doubt that he would either be killed by drones or aircraft from above or by the SEALS on the ground, preferably the latter, his remains captured in one piece for purposes of identification and confirmation before being deep-twenty-thousanded under the sea. This was never a mission for the Rangers or the Green Berets, but a mission for the special forces of the Navy.

However, Judge, your other points, though muted a bit by incoherency, are valid. For example, if we are not in Libya to drive Muammar Gaddafi out of the country or kill him, why are we there? The President has yet to provide a coherent explanation for our involvement.

First the President says that we are there to help protect the civilian population, but the civilian population in need of protection is trying to oust the regime. The only effective way to protect it is to destroy the regime and its leader. Then he says that Gaddafi must go.  Well, of course.  But then a strike that was clearly intended to kill Gaddafi, the only sensible thing to do as he will not go any other way, was said to be something else.

It's one thing to fudge the truth about the nature of anonymous burials and the like in war, particularly in a war against an enemy whose primary means of making war is to target non-combatants. Judge, that is the propaganda of war. Such an enemy is not entitled to anything but a one-way ticket to hell.

It's another thing, however, to fudge the truth about a military action when talking to the American people. They are entitled to a coherent and truthful explanation. Our involvement in the Libyan civil war is an extended military action, not a limited, preemptive or retaliatory action. Yet the President uses language akin to that of the latter to describe what is in fact the former.

It's odd, Judge, that you quibble with the President over technicalities, more at semantics, when the real dispute with this administration goes to its habitually inconsistent posture in the war on terrorism, one adopted in order to appease a political base, mostly comprised of raving lunatics, with rhetoric that is inconsistent with certain actions.

With its handling of Osama bin Laden's demise, the Obama administration concedes that the Bush administration was right all along. Yet, it belies the logic of that action by arguing that captured enemy combatants are entitled to the protections of the Geneva Convention or that of the Constitution just because they are in the custody of U.S. military forces within the boundaries of the United States' jurisdiction.

But what is the nature of that jurisdiction in this case?

I'm not aware of any decision in case law that overturned the Court's finding in the Insular Cases: the United States' tentative jurisdiction for administrative purposes is not subject to the terms of its jurisdiction for constitutional purposes. Congress' constitutional power to define "the territorial limits" and "the jurisdiction" of the United States proper is inviolable, and Guantanamo Bay does not and never has resided within the boundaries of the United States' jurisdiction for constitutional purposes.

The Obama Administration lied to the American people when it insinuated otherwise. It muddles the truth when it prattles about "man-made disasters" or suggests that our reactions to acts of terrorism and those that commit them are subject to the constraints of international law, as if the issue were one of mere criminality. Acts of terrorism are acts of war, albeit, unconventional, committed by renegades—not against the constraints of international law, but outside or beyond the jurisdiction of those constraints. In effect, Islamic terrorists have declared themselves to be non-signatory entities unto themselves. Fine. We are free to treat them accordingly.

I'm sorry, Judge, but the dispute with this administration goes to other things, inconsistency and political expediency within the larger context. I do know you to embrace the conservative perspective, but in this instance, you're just not making any sense at all.

Don't be surprised that you end up arguing against your side of things when you criticize your political opponent for the wrong thing.