A Few Hopeful Tid-Bits

I haven't posted in a while. Between trying to earn a living and get ready for the holidays, there just hasn't been enough time. But there have some things in the newsthat give me some reason for cautious optomism on a number of fronts.

Rummy On The Ropes? -- I will not even try to provide links to all of the stories inever-increasing drumbeat of "no confidence in Rumsfeld" statements and calls for his resignation. There are just too many of them. What I find intriguing, though, is the question of "Why now?" The ostensible impetus for all of this new-found public opposition is Rumsfeld's "insensitvity": first in his response to a soldier's questions on why their vehcles were not armored and, more recently, on the issue of machine-signing of death notices to families of slain soldiers. But ask yourself this: Has anyone ever thought of Rumsfeld as a sensitive guy? Aren't these "revelations" utterly consistent with everything the man has done and said over the last four years? If so, then what's the big deal now? If sensitivity were a requirment for Bush's Secretary of Defense, wouldn't Rummy have been gone long ago? Well, then, what's different now?

Perhaps these latest "insensitivites" were simply the "straws that broke the camel's back." But to me at least, it seems likely that there is more to it than that. Despite continued denials by the Administration, my guess is that this anti-Rumsfeld campaign is actually being orchestrated by the White House. If that's the case, why doesn't Bush just fire him? Well, my guess is that it Rummy is actually too popular with the Bush "base" to allow a summary discharge. So, they have to go through process of public Rummy-trashing to undermine that support and to create the impression that firing him is the "will of the people". I, for one, will not be sorry to see Rummy go. In fact, I have some hope that, if the White House truly is out to get rid of Rummy, maybe it signals the start of a more modest, less arrogant and confrontational foreign policy. That would clearly be a good thing. But, the hypocricsy of this cynical character assassination is galling nonetheless.

Cause For Hope In The Middle East? One never wants to get his hopes too high about the prospects for peace in Palestine, but three articles in the New York Times on Friday and Saturday (December17 and 18) led me to think that maybe, just maybe, I was wrong and that Israel and Palestine can work things out.

First, (not in time, but in importance) there was the announcement that, despite enormous differences over domestic issues, Sharon negotiated a coalition with the Isreali Labor Party in order to facilitate the withdrawal from Gaza. According to the article,

The negotiations with Labor were bitter but foreordained to succeed, given Labor's conviction that Mr. Sharon's Gaza plan is a crucial step to a settlement with the Palestinians and could fail without Labor support.

While the Gaza plan deeply divided Mr. Sharon's own Likud Party, Labor and other leftist parties vowed to support him so long as he remained committed to pulling settlers out of Gaza.

Second, in the same issue, there were statements attributed to "the top Hamas leader on the West Bank, Sheik Hassan Yussef", in an Op-ed piece by Scott Atran. According to Mr. Atran, Mr. Yussef has been working actively to support the candidacy of Mahmaoud Abbas (Abu Mazen) and to undermine the candidacy of Marwan Barghouti even though the latter appears much more militant and even though Mr. Abbas is the candidate of choice for both Israel and the West. It is impressive enough that Israel, the Hamas leadership, and the West agree on anything at all -- much less on the future leadership of the PLO. But, what really struck me as hopeful was the following statement, attributed by Mr. Atran to Mr. Yussef:

We can dream about all Palestine being Muslim - like some Israelis dream of a Greater Israel that includes all our lands - but it is not practical. . . . We must take responsibility, along with Abu Mazen and the Palestinian Authority, in taking care of our people. And that means we must also negotiate with the Israelis.

Mr. Atran concludes the editorial with the following observations -- with which I could not agree more:

The main problem is that each side demands that the other announce a truce first. "If I advocated a unilateral cease-fire - proclaiming that we will not attack Israelis if Israelis do not attack us - then my political influence would end," he said. And Prime Minister Ariel Sharon is just as much a captive to politics - he too would not survive in his own party if he unilaterally declared a cease-fire.

How to break the stalemate? The United States and Europe, working in tandem with Israel and the Palestinian leaders, could perhaps broker a mutually declared cease-fire, a first step toward indefinite hudna and Mr. Yussef's "dialogue of civilizations." A tall order, indeed, but at least it now seems that Hamas is willing to listen, and wants to give democracy a chance.

A "tall order" indeed. Yet, only a day earlier, an article headlined Donors Consider Large Increase in Aid to Palestinians, provided some reason for hope in this regard as well.

The United States, Europe and Arab countries are considering greatly increasing - maybe even doubling - aid to the Palestinians on condition that they and Israel take certain steps toward reducing their conflict, American and Palestinian officials say.

A four-year package of $6 billion to $8 billion would be forthcoming, they said, if the Palestinian elections set for Jan. 9 occurred successfully and if the new government cracked down on militant groups and Israel lifted scores of roadblocks and checkpoints to ease the transit of goods and people in Palestinian areas.

What struck me about this announcement was the apparent even-handedness of it. The conditions for issuance of the aid applied not just to the Palestinians but to Israel as well.

If one chooses to focus on it, of course, there is more than enough in all three of these articles -- and elsewhere -- to convince you that there is no real cause for optimism in all of this. As the article on the Sharon's coalition with Labor indicates, quoting Stephen P. Cohen, president of the Institute for Middle East Peace and Development, the long-term stability of that coalition is anything but assured:

"The biggest challenge to the Gaza plan will be if the government breaks down on other issues." If the two parties "cannot resolve great tensions about economic policies to get a budget passed and keep them together, they may fail because of a disagreement about everything but Gaza."

Moreover, there are groups within Israel who are violently opposed even to a withrdrawl from Gaza, much less to the much more far-reaching compromizes that will be required of Israel if peace is to be achieved. See, e.g. "Israeli Settlers' Group Calls for Resistance to Evacuation" in today's NYT.

The same is true on the Palestinian side. As Mr Artan points out, Mr. Yussef does not speak even for all of Hamas, much less for other radical Palestinian groups:

Of course, Mr. Yussef faces opposition from within. Mahmoud Zahar, a senior Hamas official in Gaza, dismissed the overture, saying that there would be "no talk about a hudna [ceasefire] now" and that his group's "strategy is to liberate all of Palestine." Soon enough, Hamas bombs killed five Israeli soldiers in Gaza; that was followed by Israeli Army raids that killed several Palestinians.

Finally, there is room to doubt whether Western (or at least American) participation in the process will, in fact, become more neutral. For instance, the following are the final two paragraphs from the December 17 article on aid to the Palestinians:

Some European leaders, anticipating increased leverage as European financing for the Palestinians increases, are pressing Israel and the Palestinians to start talking soon about difficult issues like Jerusalem, the boundaries of a Palestinian state and the status of refugees.

The Bush administration and Mr. Sharon's government want those issues put off until the Palestinians show more progress against terrorism. "We're trying to maintain a united front with the Europeans," the senior administration official said, "and I think we've succeeded on that. We can achieve a solution by keeping our eyes focused on realistic goals and not talking about pie in the sky."

But, whether now or later, it seems to me that these articles, taken together, point to what is ultimately necessary to a resolution of the conflict: (1) marginalization by both Israel and the Palestinians of the radical wings of their internal polity, and (2) massive, sustained, and (most important) consistently even-handed carrot-and-stick participation by the West.

Due Process For Detainees -- Striking a blow for common sense and decency, the British Law Lords, Britain's high court, ruled that "Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law." NYT story here. One wonders why so seemingly obvious a conclusion is so bitterly contested both here and in Britain. The full text of the 102-page decision can be found here, courtesy of the BBC.

Fortunately, the US Supreme Court seems to be headed in much the same direction, albeit in a very, very incrementalist way. In RASUL et al. v. BUSH, the Court held that the detainees at Guantanamo had the right to petition US courts for writs of habeas corpus even though they are not US citizens and even though Guantanamo is not a part of the soverign territory of the United States.

Of course, habeus rights just bring the Gitmo detainees within the jurisdicition of the US courts. They have little to say about what "process" will be "due" them once they get there. The decision in HAMDI et al. v. RUMSFELD, a case decided the same day, begins to address that issue. There, the court concluded that:

[A] citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.

However, the Court also concluded that, given the exegencies, the "process" Hamdi was "due" was considerably less than the process guaranteed to criminal defendants:

At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided. Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.

There are a number of important questions that neither of these cases answers.

First, in ruling that non-citizen detainees at Guantanamo had a right to petition US courts for a writ of habeus corpus, the court relied heavily on the fact that, by treaty, the US had been ceded complete jurisdiction over the base for as long as it occupied it. Thus, the decision does not reach the issue of whether detainees being held by US officials in other countries have access to US courts as well. Sadly, in fact, the court's rationale appears to suggest that they would not.

Second, the holding regarding the right to notice and hearing on enemy combatant classifications is technically limited to US citizens, since Hamdi himself was a US citizen. Thus, it is technically unclear whether non-citizens classified as "enemy combatants" are also entitled to challenge the legitimacy of their classification. However, reading the Rasul and Hamdi cases together, it would appear that the answer is that non-citizens do have those rights. And, the Department of Defense appears to have accepted that fact, since it are now in the process of having parole hearings for non-citizen detainees at Guantanamo. See the latest on these from the NYT: "New Round of Hearings at Guantánamo" and "Review: Guantanamo Detainee Wrongly Held".

Third, while the court "blue-skies" at some length on the procedures that "might" or "might not" be required or appropriate in these proceedings, those musings are not dispositive. The court's actual holdings are simply that a citizen detainee is entitled to notice of the basis for his classification and an opportunity to rebut the factual basis for that classification before a neutral decisionmaker. Issues such as what burden of proof should be required and who should bear it; what types of evidence should be admitted; who the "neutral decisionmaker" should be; what rights the detainee has with respect to representation by counsel, protection against self-incrimination, etc., etc., were all left to be defined in subsequent cases. It will literally take years -- if not decades -- to get final resolution of all of these issues.

Fourth, the court does not attempt to answer the central question to be decided in these case: Who can legitimately be classified as an "enemy comabtant"? As the court recognized:

There is some debate as to the proper scope of this term, and the Government has never provided any court with the full criteria that it uses in classifying individuals as such. It has made clear, however, that, for purposes of this case, the "enemy combatant" that it is seeking to detain is an individual who, it alleges, was " 'part of or supporting forces hostile to the United States or coalition partners' " in Afghanistan and who " 'engaged in an armed conflict against the United States' " there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The extent to which people that who had not engaged in armed conflict with the United States can be classified as enemy combatants is yet another issue that will have to be resolved in subsequent cases.

(Note: Rumsfeld v. Padilla, which was a companion case with Hamdi and Rasul cases, might have forced the court to begin to come to grips with this issue, since Padilla was captured not in Afghanistan, but in the United States, and was charged not with armed resistance to the United States in an active war, but with planning to detonate a "dirty bomb." However, the court dimissed the Padilla case on a narrow jurisdictional ground; i.e. Padilla's petition for a writ of habeus corpus should have been filed in South Carolina rather than Washington DC, since the perosn having actual physical control of him was the warden of the Navy brig in Charleston rather than the Secretary of Defense. The jurisdictional defect is easily reactified, however, so the Padilla case is virtually certain to make its way back to the Supreme Court at some point).

Finally, and of most immediate importance to the detainees, the court does not answer the question of how long "enemy combatants" can be detained. It does however, appear to suggest that the detention, even of one properly classified as an "ememy combatant" may not be last any longer than the combat in which he particpated continues. Moreover, the court appeared to believe that, in Hamdi's case, this "combat" was not the potentially never-ending "war on terror" but the fighting in Afgahnistan:

Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that "the detention of enemy combatants during World War II was just as 'indefinite' while that war was being fought." . . . [However,] [a]s the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." The prospect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. . . . Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. . . . But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. . . . The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who "engaged in an armed conflict against the United States."

This language poses some real problems for the Administration, who, no doubt, prefer to see the detainees as participants in the borader "war on terror" and detain them until that "war" was over. In fact, however, they may be required to release the detainees once some measure of stability returns to Afghanistan, regardless of the status, say of the war in Iraq or the broader war or terror. This may be the most fscinating aspect of this entire issue over the next year or so.