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India's Prime Minister Atal Behari Vajpayee and Pakistan's Gen. Pervez Musharraf, who gathered here with the leaders of the other five South Asian countries for a summit meeting in early January, sat opposite each other at the banquet table. For two hours, while Vajpayee stared impassively down at his plate, Musharraf looked up at the chandeliers and made light conversation with Bangladesh's Prime Minister Khaleda Zia on his right. The leaders of the two nuclear powers of South Asia made no eye contact throughout. A thousand kilometers to the west, their armies were massing at the frontier.
The avuncular Vajpayee, of the ruling Bharatiya Janata Party (BJP), once penned poems in memory of the Hiroshima dead. But it was he who took the subcontinent nuclear by conducting tests in the Rajasthan desert in May 1998. This was an invitation for rival Pakistan--riven with internal angst based on an ideological reliance on Islam since its founding in 1947 and ruled by the military for long periods since--to join the nuclear fold, which it did with its own tests weeks later.
The Kargil miniwar of June 1999, which was the Pakistani military's response to peace moves by the civilian leadership of the two countries, was the first-ever conflict between two nuclear powers. It proved that the nuclear deterrent would not necessarily keep South Asia from conventional war. Since then, the region has walked a tightrope; unforeseen events can rapidly escalate into full-blown conflict, and the bluster of both sides includes the threat of using nuclear weapons.
There is a failure of imagination to consider the impact of nuclear blasts on the densely populated Indo-Gangetic plains, or that missile flying time to targets is measured here in minutes. Such are the proximity of population centers and climate conditions that a nuclear attack on Pakistan could consume India as well, and vice versa.
Meanwhile, even rudimentary confidence-building and de-escalation devices are lacking between the two countries--one a brittle military state whose command and control structures could collapse at a critical moment and the other a democracy egged toward brinkmanship by the arrogance of size and reactionary politics.
The current deep chill has its origins in the belief that General Musharraf is considered the "architect" of the Kargil conflict; in addition, there is the flamboyant Musharraf's upstaging of the aging Vajpayee at every public opportunity. But beyond the matter of personalities, New Delhi has legitimate grounds for anger, for Pakistan has been indulgent toward radical Islamic organizations with the avowed aim of conducting jihad to release Kashmir from India's grasp. It has allowed these militant groups to organize, fundraise and run training camps within its territory. These Pakistan-based external elements gradually displaced the indigenous militants in Kashmir over the last half of the 1990s, and recently even Kashmiri civilians have been targeted by the infiltrators.
Things came to a head on December 13 with the attack on India's Parliament in New Delhi by a militant Muslim suicide squad. An enraged Indian government accused the Islamabad government of involvement in the attack and, with the example of the American war in Afghanistan fresh in mind, hotheads within the BJP called for strikes on Pakistani territory. With one eye on a crucial legislative assembly election in the all-important state of Uttar Pradesh, Vajpayee's government upped the ante, refusing to talk with Musharraf and massing its troops at the border.
Independent of Pakistani designs on the territory, New Delhi is unwilling to consider that the disquiet in Kashmir is due to rejection of Kashmiri aspirations for a modicum of self-rule. New Delhi wants nothing less than total control, even though the Indian Constitution contains unique provisions for autonomy for Kashmir. India decided long ago that it could suffer limited bloodletting in the territory under the mistaken assumption that "letting Kashmir go" will unravel the Indian republic itself.
The discord between India and Pakistan can also be traced to postpartition animosities that grew up after 1947 in particular among the Hindu and Muslim refugees who ended up on either side of the border. More recently, Indian ire against Pakistan has been ratcheted up by neonationalism among the growing Indian middle class, which makes up a large part of the BJP government's Hindu-right base of support. These nationalist emotions have been enhanced by the unifying function of satellite TV, a new phenomenon, and a run of movies from Bombay's escapist film-production machine that are no longer coy about identifying Pakistan as "the enemy."
There are now certain actions that the two protagonists must take, goaded by the international community, including the United States. On both sides there must be a softening of inflammatory rhetoric, a calming of tension and a pullback of the military. New Delhi must talk to Islamabad, however distasteful it finds the prospect. India, as the stronger and larger country, should have the self-confidence derived from its democracy, powerful economy and world standing to show generosity of spirit.
In the medium term, the United States and other powers must continue to pressure Pakistan to withdraw support from the militant groups engaging in Kashmiri jihad. In the longer term, New Delhi and Islamabad must be made to move toward accommodation on Kashmir (read autonomy, self-government, a plebiscite, a freeze or another imaginative solution) and a program of denuclearization.
In March 2000, Bill Clinton, visiting the region as US President, called South Asia the world's most dangerous place. January 2002 finds it a much, much more dangerous place. The resentful, asymmetrical twins of South Asia have faced each other for nearly fifty-five years in an adolescent rivalry that has triggered three major wars and an endless barrage of "minor" clashes. The price of the failure of reconciliation was once high. Now it is apocalyptic.
President Hosni Mubarak is quite happy that the United States has decided to try civilian terrorist suspects in military courts. For ten years, Egypt has been taking fire from the West for court-martialing civilians; the new US policy, plus Britain's enactment on December 14 of a package of antiterrorism legislation that includes the right to hold suspects indefinitely, vindicates him. The US and British measures "prove that we were right from the beginning in using all means, including military trials, [in response to] these great crimes that threaten the security of society," Mubarak told the state-owned Al Gomhuriya newspaper in a December 16 interview. "There is no doubt that the events of September 11 created a new concept of democracy that differs from the concept that Western states defended before these events, especially in regard to the freedom of the individual."
In 1992 Mubarak, his regime under attack from a radical Islamist insurgency, authorized the referral of civilians to military courts on the grounds that such courts dispensed swift justice. Since 1997 there has been virtually no reported militant Islamist activity inside Egypt, but the trials are still going strong. In late November eighty-seven members of the alleged terrorist group Al Wa'ad ("The Promise") went on trial at the desert barracks of Haikstep east of Cairo, with another seven tried in absentia.
Despite the potentially grim outcome of the case--as leaders of a conspiracy that allegedly planned to assassinate Mubarak, some of the defendants could be sentenced to death--on some days there's almost a carnival atmosphere in the courtroom. The prosecution drew snickers from the audience when it tried to enter into evidence the group's arsenal, consisting of a baseball bat and an air rifle. Even the judge couldn't help but wisecrack as a state security officer, citing "secret sources who can be trusted" but could not be named, outlined how the defendants were attempting to overthrow the regime by assassinating, in addition to President Mubarak, a movie director who specializes in producing the closest that Egypt's censor will allow to skin flicks.
When the Al Wa'ad suspects were originally rounded up in May 2001, the papers reported that they had been sending money to Palestine and Chechnya. But after September 11, the defense says, the government wanted to show the United States that it was an active participant in the war on terror, so it added assassination charges and downgraded fundraising charges. So far the prosecution case is mostly confessions delivered to state security officers, which the defendants claim were extracted under torture.
Compared with Egypt's civilian courts, the standards of evidence in military courts are a bit looser. Procedurally, however, the two are much the same. The big difference is the outcome. Military trials are "like a movie," says defense lawyer Negad Al Borei. "They look like reality, but you know what will happen from the beginning."
According to the US State Department's 2000 report on human rights in Egypt, "the use of military courts to try civilians continued to infringe on a defendant's right to a fair trial before an independent judiciary.... While military judges are lawyers, they are also military officers appointed by the Minister of Defense and subject to military discipline. They are neither as independent nor as qualified as civilian judges in applying the civilian Penal Code." It will be interesting to see what the State Department says next year, now that military trials for civilians have become US policy.
Critical human rights reports, of course, never stopped the United States from considering Egypt its "strategic partner" in the war on terror, as State Department spokesman Richard Boucher said in November. Nor, according to reports in both the Arab and US press, did such reports discourage the CIA from assisting in the extradition of alleged jihad activist Ahmed Naggar from Albania to Egypt, where a military court tried and convicted him in 1999. He was hanged early the next year.
Nor have they deterred the tribunals from processing alleged Islamists at a fairly brisk rate: The Egyptian Organization for Human Rights counted a total of thirty-two trials involving 1,001 defendants in 1999, of whom 625 were sentenced to prison and ninety-four sentenced to execution (only sixty-seven were actually executed). Mubarak declared that military courts "would only be used to confront terrorism." In 2000, however, fifteen members of the Muslim Brotherhood, which has renounced violence since the 1970s, were given prison sentences of up to five years for "conspiring" to run for office in local and parliamentary elections.
Certainly, a few of those convicted over the past decade in Egypt's military trials were murderous fanatics. However, even when the trials deal with genuine militant groups, rights activists say, you rarely know which of the defendants are truly dangerous and which were simply picked up from the local mosque to round out the numbers.
Early in the 1990s, when bombs were exploding in Cairo and every week brought fresh reports of officers killed in the Islamist strongholds of southern Egypt, it was easy enough to figure out why the regime might resort to military trials. Perhaps they've continued after the demise of the militant movement partly because security officers want to show their utility (there have also been proceedings against a gay "conspiracy," an allegedly treasonous academic and a sacrilegious author in the past year). Perhaps they've continued because the regime just wants to keep Islamic activists on edge or feels it necessary to show that it's keeping up with the war on terror. Whatever the reason, the regime has certainly taken the West's "new concept of democracy" as a sign that it's on the right track.
Nike-Zeus, Nike-X, Sentinel, Safeguard, Star Wars, X-ray lasers, spaced-based neutron particle beams, Brilliant Pebbles, Ground-Based Midcourse National Missile Defense, Midcourse Defense Segment of Missile Defense. Over the past fifty years America has poured approximately $100 billion into these various programs or efforts to shield the country against long-range ballistic missiles. Yet not one has worked. Not one. Nevertheless, except for the constraints imposed by his own "voodoo economics," President George W. Bush appears poised to pursue the development and deployment of a layered missile defense--as a hedge against more failures--that would force taxpayers to cough up as much as another $100 billion. In December Bush formally notified Russia that the United States was withdrawing from the 1972 Anti-Ballistic Missile treaty in order to "develop ways to protect our people from future terrorist or rogue state missile attacks."
Russian President Vladimir Putin labeled Bush's decision a "mistake," a mild reaction that should not disguise the fact that much of Russia's political elite is seething at the withdrawal. Already smarting from America's broken promise not to expand NATO and the US-led NATO bombing of Yugoslavia in 1999 (which violated the 1997 "Founding Act" between Russia and NATO), the coincidence of America's success in Afghanistan (obviating the need for further Russian assistance) and withdrawal from the ABM treaty is viewed as yet further evidence of American duplicity.
President Clinton diplomatically explained the Republicans' obsession with missile defense when he observed: "One of the problems they've got is, for so many of their supporters, this is a matter of theology, not evidence. Because President Reagan was once for it, they think it must be right, and they've got to do it, and I think it makes it harder for them to see some of the downsides." That's a nice way of saying that the conservative wing of the Republican Party abounds with missile-defense wackos. I've participated personally in two missile-defense conferences and was astounded by their right-wing, faith-based atmospherics.
Which is why Bradley Graham's engaging narrative of politics and technology during the Clinton years, Hit to Kill: The New Battle Over Shielding America From Missile Attack, seems destined for popular success, notwithstanding its serious conceptual limitations. Graham ably recounts the excessive exuberance of Republicans as they schemed to realize their missile-defense dreams. But he is equally critical of the Clinton Administration's attempt to actually build a missile defense: its "three-plus-three" ground-based midcourse program.
Offered in the spring of 1996, in part to undercut the Republicans, "three-plus-three" provided for three (or four) years of development, after which, if then technologically feasible and warranted by a threat, there would be deployment within another three years. In early 1998, however, a sixteen-member panel, led by retired Air Force chief of staff Larry Welch, condemned the plan as a "rush to failure."
But two overdramatized events later that year demanded even greater urgency. In July, the Commission to Assess the Ballistic Missile Threat to the United States, led by Donald Rumsfeld, asserted that America's intelligence agencies had woefully underestimated the capability of "rogue" regimes, such as those leading North Korea and Iran, to attack US territory with ballistic missiles within five years. It concluded: "The threat to the United States posed by these emerging capabilities is broader, more mature, and evolving more rapidly than has been reported in estimates and reports by the intelligence community."
When North Korea subsequently launched a three-stage Taepodong 1 missile past Japan in August 1998, many Americans put aside not only their qualms about the role Representatives Curt Weldon and Newt Gingrich had played in creating the commission, but also their suspicions about the blatantly pro-missile defense bias of most of its members. Although Graham generally portrays the commission's deliberations as unbiased, he does provide evidence that some of its briefers were not.
For example, one intelligence official betrayed visible irritation during his briefing of commission members, prompting General Welch to ask, "You're not happy to be here, are you?" The official replied, "No, I'm not. I'm ticked off that I have to come down and brief a bunch of wacko missile-defense advocates." His outburst infuriated Rumsfeld, who "stalked" out of the room.
Nevertheless, Rumsfeld's report and the launch of North Korea's missile frightened Americans and galvanized Republicans. Graham's investigative reporting gets inside the subsequent political war waged against a Clinton Administration that, itself, was slowly awakening to the possibility of a more imminent ballistic missile threat.
Graham brings an open mind to the hotly disputed technological merits of missile defense. Nevertheless, he cannot avoid the conclusion that George W. Bush's decision to expand missile defense beyond Clinton's ground-based midcourse program constitutes an acknowledgment that, after fifty years, "military contractors had yet to figure out how best to mount a national missile defense."
In theory, a ballistic missile can be intercepted during its comparatively slow, if brief, "boost phase," before its "payload"--warheads, decoys and debris--is released. Speed is of the essence during the boost phase. So is proximity to the target. According to Philip Coyle, former director of the Pentagon's Office of Operational Test and Evaluation, "The process of detection and classification of enemy missiles must begin within seconds, and intercept must occur within only a few minutes. In some scenarios, the reaction time to intercept can be less than 120 seconds."
Compounding concerns about boost-phase intercepts are questions about the ability of an interceptor to distinguish quickly between a missile's flame and the missile itself. Finally, boost-phase missile-defense platforms would invite pre-emptive attacks against those platforms by any state bold (and foolish) enough to launch ballistic missiles.
The "terminal phase" of ballistic missile flight is the final minute or two when the payload re-enters the atmosphere. Detection of the warhead is comparatively simple, but designing a missile fast enough to catch it and hit it--given the problems associated with sensor degradation in intense heat--is extremely difficult. Countermeasures, such as maneuvering capability or precursor explosions, would further complicate defensive efforts. Finally a terminal-phase missile defense can, by definition, protect only a limited area, perhaps one city. Thus, many such systems would be required.
The "midcourse phase" of ballistic missile flight is the period during which the payload is dispersed in space. It remains there more than 80 percent of the missile's total flight time. The Clinton Administration's ground-based midcourse program (continued by the Bush Administration) is designed to strike the warhead in space with a high-speed, maneuverable kill vehicle--thus Graham's title: Hit to Kill.
Easily the most developed of all programs, as recently as December 3, 2001, the midcourse program demonstrated the awesome technological feat of destroying a warhead hurtling through space--hitting a bullet with a bullet. Yet such a feat constitutes but the commencement of an arduous technological journey, not its endpoint.
As a "Working Paper" issued recently under the auspices of the Union of Concerned Scientists noted, America's ground-based midcourse program has not been subjected to real-world tests. Five hit-to-kill tests have resulted in three hits. But each test: (1) used identical test geometrics (the location of launches, trajectories of target and interceptor missiles); (2) released the same objects (payload bus, warhead and decoy); (3) occurred at the same time of day; (4) made the lone decoy obviously and consistently different from the warhead; (5) told the defense system what to look for in advance; (6) attempted intercept at an unrealistically low closing speed; (7) kept the target cluster sufficiently compact to aid the kill vehicle's field of view; and (8) provided the kill vehicle with unduly accurate artificial tracking data.
Any ground-based midcourse missile defense system has to contend with virtually insurmountable countermeasures, especially the decoys that, in space, are quite indistinguishable from the warheads. Yet the three successful hits did not have to contend with even the countermeasures that a missile from a "rogue" regime would probably employ.
A National Intelligence Estimate in 1999 determined that "countermeasures would be available to emerging missile states." In April 2000 a "Countermeasures" study group from the Union of Concerned Scientists and the MIT Security Studies Program concluded: "Even the full [National Missile Defense] system would not be effective against an attacker using countermeasures, and an attacker could deploy such countermeasures before even the first phase of the NMD system was operational." Consequently, "it makes no sense to begin deployment."
Craig Eisendrath, Melvin Goodman and Gerald Marsh (Eisendrath and Goodman are senior fellows with the Center for International Policy in Washington; Marsh is a physicist at Argonne National Laboratory) state the problem even more starkly in their recent book The Phantom Defense: America's Pursuit of the Star Wars Illusion: "This is the bottom line: the problem isn't technology, it's physics. Decoys and warheads can always be made to emit almost identical signals in the visible, infrared, and radar bands; their signatures can be made virtually the same."
If such information troubles Defense Department officials responsible for missile defense, they seldom admit it publicly. However, they're not nearly as irresponsible as the political and "scholarly" cheerleaders who remain unmoved by a half-century of failure and the physics of countermeasures. I encountered one of them last June at a missile defense conference in King of Prussia, Pennsylvania.
Representative Weldon delivered the conference's keynote address to more than 220 participants from the Defense Department, the military industry, think tanks, various universities and the press. Weldon is the author of HR 4, legislation that made it "the policy of the United States to deploy a national missile defense." (Senator Carl Levin was able to add amendments to the Senate bill on missile defense that made the program dependent upon the annual budget process and tied it to retention of the ABM treaty; Weldon referred to the amendments as cowardice. Nevertheless, they remained in the Missile Defense Act that President Clinton signed on July 22, 1999.)
Weldon told the audience that the United States requires a missile-defense system to protect its citizens from an intentional missile attack by a "rogue" regime presumably undeterred by the prospect of an overwhelming American nuclear retaliation. He even displayed an accelerometer and a gyroscope, Russian missile components allegedly bound for a "rogue." He then displayed an enlarged, poster-size photograph of Russia's SS-25 ICBM. Russia possesses more than 400 such missiles, he asserted, and any one of them might be launched accidentally against the United States, given Russia's deteriorating command and control capabilities.
It was a "no-brainer." Both threats demanded that America build a national missile defense system, capable of intercepting such missiles, as soon as possible.
However, when I asked Congressman Weldon to shift from the SS-25 and contemplate whether his modest missile-defense system could prevent the penetration of an accidentally launched TOPOL-M ICBM from Russia, he responded, "I don't know. That's a question you should ask General Kadish during tomorrow's session." Extending the reasoning, I asked Weldon whether his modest missile-defense system could shield America against a missile, launched by a rogue regime, that was capable of TOPOL-M countermeasures. Weldon again answered that he did not know. But rather than let such doubts linger at a conference designed to celebrate missile defense, Kurt Strauss, director of naval and missile defense systems at Raytheon, rose to deny that Russia possessed such countermeasures.
Presumably, Strauss was unaware of the work of Nikolai Sokov, a former Soviet arms control adviser and author of Russian Strategic Modernization: Past and Future. Sokov claims that the TOPOL-M features a booster intended to reduce the duration and altitude of the boost phase, numerous decoys and penetration aids, a hardened warhead and a "side anti-missile maneuver."
Strauss's uninformed denial hints at a much bigger problem, however: the prevalence of advertising over objectivity in a society where the commercialization of war and the cult of technology have reached historic proportions. In The Pursuit of Power historian William McNeill traces the commercialization of war back to mercenary armies in fourteenth-century Italy, pointing out the "remarkable merger of market and military behavior." And Victor Davis Hanson, in Carnage and Culture, sees much the same reason behind the decimation of the Turkish fleet, some two centuries later, by the Christian fleet at Lepanto--"there was nothing in Asia like the European marketplace of ideas devoted to the pursuit of ever more deadly weapons." McNeill concludes that "the arms race that continues to strain world balances...descends directly from the intense interaction in matters military that European states and private entrepreneurs inaugurated during the fourteenth century."
Post-cold war America, virtually alone, luxuriates in this dubious tradition. Yet it was no less than Dwight Eisenhower who warned America in his farewell address: "This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence--economic, political, even spiritual--is felt in every city, every Statehouse, every office of the federal government."
Who could have been surprised, then, when Matthew Evangelista conclusively demonstrated, in Innovation and the Arms Race (1988), that commercial opportunities within America's military-industrial complex, much more than any Soviet threat, propelled innovation--and, thus, most of the arms race with the Soviet Union. A year later, the highly respected defense analyst Jacques Gansler identified the uniquely American "technological imperative" of commercialized warfare: "Because we can have it, we must have it." Such impulses caused the United States to run profligate arms races with itself both during and after the cold war. They also explain America's post-cold war adherence to cold war levels of military expenditures and, in part, our missile-defense obsession today.
This technological imperative had its origins in America's "exceptional" historical experience, which it continues to serve. Indeed, so the argument goes, Why should a country on a mission from God sully itself with arms control agreements and other compromises with lesser nations, when its technological prowess will provide its people with the invulnerability necessary for the unimpeded, unilateral fulfillment of their historic destiny?
Such technological utopianism, however, has its costs. In their book The Dynamics of Military Revolution, 1300-2050, MacGregor Knox and Williamson Murray demonstrate the very secondary role that technology has played in past military revolutions. They conclude: "The past thus suggests that pure technological developments without the direction provided by a clear strategic context can easily lead in dangerous directions: either toward ignoring potential enemy responses, or--even more dangerously--into the dead end, graphically illustrated by the floundering of U.S. forces in Vietnam, of a technological sophistication irrelevant to the war actually being fought." (In Hit to Kill, Graham has little to say about military strategy or the commercialization of warfare.)
In hawking a missile defense shield, Representative Weldon traveled in the first dangerous direction when he assured the defense conferees that although Congress was not ignoring the threat posed by terrorists with truck bombs, "when Saddam Hussein chose to destroy American lives, he did not pick a truck bomb. He did not pick a chemical agent. He picked a SCUD missile.... The weapon of choice is the missile."
Unfortunately, on September 11, America learned that it is not.
Potentially worse, however, is the Reaganesque theology propelling the Bush Administration's decision to withdraw from the 1972 Anti-Ballistic Missile treaty. Putting aside the question of whether withdrawal requires formal Congressional approval and other questions of international relations, one must ask why any administration would destroy the cornerstone of strategic stability. The ban on national missile defenses not only prevents a defensive arms race but also obviates the need to build more offensive missiles to overload the enemy's. Why would a country withdraw from the ABM treaty without knowing whether its own missile-defense system will even work, and before conducting all the tests permitted by the treaty that would provide greater confidence in the system's ultimate success?
Readers of Keith Payne's recent book The Fallacies of Cold War Deterrence and a New Direction, might guess the probable answer. Payne, chosen by the Bush Administration to help shape the Defense Department's recently completed but still classified Nuclear Posture Review, writes about a new, post-cold war "effective deterrence," to which even an imperfect missile-defense system might contribute: "In the Cold War, the West held out the threat of nuclear escalation if the Soviet Union projected force into NATO Europe; in the post-Cold War period it will be regional aggressors threatening Washington with nuclear escalation in the event the United States needs to project force into their regional neighborhoods.... In short, Washington will want effective deterrence in regional crises where the challenger is able to threaten WMD [weapons of mass destruction] escalation and it is more willing to accept risk and cost."
The real concern, then, is less about protecting America from sneak attacks by rogue states ruled by madmen, and more about preserving our unilateral options to intervene throughout much of the world. Thus, President Bush's speech at The Citadel in December was disingenuous. His rhetorical question asking what if the terrorists had been able to strike with a ballistic missile was primarily an attempt to steamroller frightened Americans into supporting missile defense. The speech simply seized upon the wartime danger to compel a military transformation that has been debated for almost a decade and resisted by the services and the military industry since the beginning of Defense Secretary Rumsfeld's tenure.
Lest we forget, China hasn't disappeared either. Its muted criticism of America's withdrawal from the ABM treaty was accompanied by a call for talks to achieve "a solution that safeguards the global strategic balance and doesn't harm international efforts at arms control and disarmament." Failing such talks, China may feel compelled to increase its offensive arsenal to insure penetration of an American missile defense, which could provoke India, and consequently Pakistan--perhaps rekindling tensions that have already brought them to the brink of war.
Russia, for its part, believes it has little to fear from America's current missile-defense programs but is awaiting the inevitable: the moment when the technological utopians push America to expand its modest system into a full-blown shield. How will Russia respond then?
To court such reactions by withdrawing from the ABM treaty before even testing against decoys is pure strategic illiteracy--which only a Reaganesque theology (founded on exceptionalism, commercialized militarism, technological utopianism and righteous unilateralism) shrouded by the "fog of war" might explain.
On terrorism and the new democratic realism.
The regulations proposed to implement George W. Bush's order establishing military commissions for the trial of "international terrorists" are mere window dressing and will not cure the fatal defects of the order. They provide the accused with so little protection as to raise a suspicion that they are made primarily to disarm the critics.
The fundamental problem is that the proposed system, including all its "judicial" elements, still lies entirely within the military chain of command and subordinate to the President, who is the ultimate authority over every aspect of the proceedings. But independent impartial judges who are not beholden to any side are the indispensable bedrock of any credible system of justice. They must be the ones to make the basic decisions or at least to review them. Without such a tribunal to monitor them, the various "protections" provided by the proposed regulations--the presumption of innocence, guilt beyond a reasonable doubt, even outside counsel--mean little or nothing.
This is not a novel insight. Congress and the military have recognized how indispensable an independent judiciary is to a meaningful system of justice: Under the Uniform Code of Military Justice, verdicts are not final until they have been reviewed by a civilian Court of Appeals for the Armed Forces. The provision of an appeal mechanism, especially in cases as politically and internationally sensitive as these, thus adds nothing to the fairness of the process--it merely insures that the final decision will be made by higher-ranking military officers who are still subject to military and presidential control.
White House counsel Alberto Gonzales, aware of these shortcomings, has sought to reassure doubters by noting that habeas corpus review will be available. But the order itself, which the regulations are only supposed to implement, expressly prohibits recourse to any court, as he well knows. For this reason, he was careful to describe the review as just a check on the jurisdiction of the tribunal, that is, whether the commission has the legal authority to try the particular accused. But review of a tribunal's jurisdiction does not touch on any substantive or procedural aspect of a proceeding, such as apprehension, detention, pretrial procedure, trial, evidentiary rulings, verdict or the sentence.
Moreover, as noted, the order specifically mandates that the ultimate authority is the President. Since the initial decision to apprehend someone is also the President's, and since everyone in the decision-making process, including the prosecutor, is subordinate to the President as the Commander in Chief, the police, prosecutor, some defense counsel, judge and jury are all rolled into one entity subject to one man--the antithesis of a just system. And given the rigidity of the military hierarchy and the natural desire of military personnel for promotion, who would challenge a judgment of their Commander in Chief that there is reason to believe someone is guilty of international terrorism and must be taken into custody--even if, as in so many instances, the action is as much for political reasons as for national security?
Compounding the difficulty is the absence of any real limit on what evidence may be admitted. The tribunal still may admit single, double and triple hearsay, affidavits, opinion and other dubious evidence. None of this can be effectively tested by cross-examination, especially since some of this evidence can be kept secret from the accused and his lawyers.
The decision to open up the proceedings to public view looks good, but it is only conditional--they may be closed if evidence that the tribunal considers worthy of secrecy is to be admitted. We have learned to our dismay how quick government officials are to classify information, even when it is already in the public domain. This Administration is particularly secretive, as shown by Bush's order holding back presidential papers from public release, as well as the refusal to reveal any information about the 1,000-plus detainees held since September 11. Moreover, the usual reason for secrecy is that disclosure will reveal methods and sources. But reliance on sources often involves very subjective judgments based on inaccurate or untrustworthy information. Yet it is just this kind of evidence that is most likely to be kept secret.
These are not tribunals worthy of a nation governed by law. And we don't need them. In the past eight years we have convicted twenty-six terrorists for the 1993 World Trade Center bombing and other cases in ordinary criminal trials and without revealing any secrets. The Administration realizes this, for it has decided to try the alleged "twentieth hijacker," Zacarias Moussaoui, in the criminal justice system.
The problem with these proposals is not that some people will never be satisfied--it is that the demands of justice have not been satisfied.
The Bush administration's abandonment of the Anti-Ballistic Missile Treaty was a win for Rumsfeld's Defense Department—but it could be an obstacle for the State Department.
For three months now, I've been closely following the coverage of September 11 and its aftermath; how well have the media done?
As the Taliban retreat in Afghanistan, the Bush administration has ample opportunity to expand its far-reaching ‘war on terror.’
Recent calamitous events—9/11, the recession, Enron's collapse—haven't affected the Bush administration's aims: tax cuts, drilling and Social Security 'reform.'
Seymore Hersh has had a string of scoops since September 11, laying bare the covert community's skulduggery. Now, though, it seems he's toeing the government's line in regard to Iran.
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