Sunday, April 21, 2013

Regarding Obama's decision to interrogate before Mirandizing the Boston bomber

The great John Yoo comments. Insight from a professor of terrorism and homeland security studies. Emily Bazelon warns about adding intelligence-gathering to the public safety exception and reacts to details about the questioning.

My take at Talking Points Memo:
This demonstrates why Bush was better for civil liberty than Obama in the War on Terror.

When urgent enough, exigency conflicts with civil liberty. In our contest with Islamic terrorism, we are challenged to preserve civil liberty while resolving the exigency. The challenge didn't begin on 9/11, only amplified - much of Bush's counter-terror policies were inherited from Clinton's struggle with Islamic terrorism.

In response to 9/11, President Bush's solution for the exigency vs civil liberty conflict was a firewall that insulated domestic criminal procedure as much as possible via a removable, separate wartime legal procedure, thus the "enemy combatant" label. It was modular in that the wartime procedure allowed the US to rise to the exigent needs of the War on Terror, but if and when the exigency is cured, the wartime legal procedure can then be lifted with little-to-no lasting effect on domestic criminal procedure. In other words, the "enemy combatant" designation *protects* our civil liberty by using, when prudent, a separate category from "criminal defendant" for terrorists.

Bush's use of a separate wartime legal procedure was a practical way to balance exigency and civil liberty. However, Bush's policy was relentlessly criticized by Senator Obama and others who neglected to formulate a better alternative for balancing exigency and civil liberty. (They downplayed the exigency in their rhetoric instead.)

When Obama became President, he inherited the exigency he had once downplayed. Rather than retain Bush's modular approach that housed the exigency in a removable, separate wartime legal procedure, however, Obama has torn down Bush's firewall that protected domestic criminal procedure as much as possible from the exigency.

By incorporating the exigency into our domestic criminal procedure, Obama is causing lasting, perhaps irreparable, damage to our civil liberty.

For our contest with Islamic terrorism, I have yet to see a better way to balance exigency and civil liberty than Bush's policy. Compared to President Bush, President Obama so far has been worse for civil liberty. I suggest that Obama should restore Bush's policy of a wartime legal procedure that preserves domestic criminal procedure.

My response to a CNN article implying the terrorist attack was a reaction to OIF and OEF:

Islamic terrorists are against our Iraq and Afghanistan missions, but not for the same reason as Western anti-Iraq and anti-Afghanistan protestors. The younger brother (allegedly) has said the attacks were motivated to *defend Islam* in Iraq and Afghanistan - note, *not* to defend Iraqis and Afghans.

Yet Americans have fought alongside and for Muslims in Iraq and Afghanistan against Islamic terrorists. It is demonstrable that the US is not opposed to Islam.

So just what do Islamic terrorists mean when they say they're defending Islam?

For Islamic terrorists, there is only one true Islam that should rule all. They fight for a new world order defined by a particular type of strict Islam that is intolerant of both Western values *and* more-tolerant types of Islam.

As such, note that Islamic terrorists have continued to murder Iraqis after the departure of US forces.

For Islamic terrorists, our Iraq and Afghanistan missions have threatened to promote Western values and advance more-tolerant types of Islam in the Islamic heartland. Both are unacceptable developments for Islamic terrorists and, from their perspective, are worth killing any and all to stop.
Eric

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