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Date: Wed, 7 Nov 2001 08:44:16 -0500
To: Matthew Gaylor <<a href="mailto:freematt@coil.com">freematt@coil.com</a>>
From: Matthew Gaylor <<a href="mailto:freematt@coil.com">freematt@coil.com</a>>
Subject: Libertarian Splits in the War on Terrorism
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<p>
Libertarian Splits in the War on Terrorism
by <<a href="http://www.fff.org/aboutUs/bios/jgh.asp>Jacob">http://www.fff.org/aboutUs/bios/jgh.asp>Jacob</a> G. Hornberger, October 2001
<p>
Responses to the September 11 attacks have split the libertarian
movement like no other issue I have seen since I discovered
libertarianism almost 25 years ago.
<p>
Limited-government libertarians have always maintained that one of
the essential functions of government is to protect the nation from
invasion or attack. The corollary to that duty is the government's
power to wage war against those who invade or attack us.
<p>
So what is the problem? On September 11, terrorists attacked the
World Trade Center and the Pentagon with hijacked airplanes carrying
civilian passengers. What better example of an attack against the
United States? The U.S. government has the duty to go after those who
are responsible for the attacks. And if a foreign regime supported
the attacks or participated in them, then our government has the duty
to wage war against that nation.
<p>
Case closed.
<p>
That's why some libertarians are endorsing military strikes in
Afghanistan to get at Osama bin Laden and his al-Qaeda organization
(who are suspected of conspiring to commit the September 11 attacks)
and the military attack against Afghanistan, a nation-state that is
suspected of harboring or supporting the terrorists.
<p>
But is the situation so straightforward?
<p>
Evidence and trust
<p>
Everyone agrees that the people who actually committed the hijackings
and the September 11 attacks are dead. So, the remaining issue is
whether Osama bin Laden, the members of al-Qaeda, and the Afghan
government (the Taliban) conspired to commit the attacks.
<p>
So far, the U.S. government has refused to publicly disclose the
evidence supporting the existence of such a conspiracy, instead
asking the American people to "trust us" because releasing the
evidence would supposedly jeopardize "national security."
<p>
Yet U.S. officials supposedly permitted the head of the Pakistani
government to see the evidence of the conspiracy. He's an army
general who took over Pakistan in a coup and who had previously
helped the Taliban take control of Afghanistan. If a former, close
personal friend of the enemy nation can be trusted with the evidence,
why can't the American people be trusted, especially since we have a
much larger stake in the matter than the Pakistani general does?
After all, if the evidence really threatened to jeopardize the
security of our nation, would our public officials really have shared
it with a Pakistani general who took over in a coup and until just
recently was a very close friend of the enemy?
<p>
Libertarians have always maintained that a commitment to freedom
dictates a severe distrust of government. Why the switch now,
especially when the stakes are so much higher? After decades of
telling people that freedom lies in a healthy distrust of government,
isn't it incumbent on those libertarians who are now telling us that
freedom lies in trusting government (at least this time) to explain
to us why.
<p>
What would be sufficient evidence to justify going after bin Laden?
That would depend on whether the September 11 attacks are considered
criminal acts or acts of war.
<p>
A criminal offense or an act of war?
<p>
Within one or two days of the attacks, some libertarians immediately
jumped to the conclusion that the attacks constituted acts of war
rather than criminal acts. But it is difficult to understand how they
arrived at that conclusion, especially without even knowing who
committed the acts and why they committed them.
<p>
It would seem difficult to distinguish the September 11 attacks from
Timothy McVeigh's attack on the federal building in Oklahoma City.
And keep in mind that McVeigh asked to be treated as a prisoner of
war rather than a common criminal suspect. Do libertarians who take
the position that the September 11 attacks constitute acts of war,
rather than private acts of murder, also believe that McVeigh's
terrorism was an act of war and that he should have been granted his
request to be treated as a prisoner of war?
<p>
It's true that McVeigh's attack was on a government building while
the September 11 attacks were on both a government installation and
civilian buildings (and involved planes with civilian passengers),
but does that difference determine whether an act is a criminal act
of murder or an act of war?
<p>
Another possible distinction is that a much larger number of people
were killed on September 11 than in McVeigh's attacks. But should the
number of the victims in a crime really determine whether the act is
criminal or an act of war? If so, which number would provide the
dividing line? What about the fact that McVeigh's victims included
several children? Should that factor in the determination?
<p>
Of course, bin Laden is a foreigner while McVeigh was a U.S. citizen.
But foreigners are indicted for common crimes all the time -- the
fact that they are not U.S. citizens does not preclude them from
being accused and convicted of criminal offenses.
<p>
If bin Laden were to be captured alive, U.S. officials would have to
choose between indicting him as a common criminal and treating him as
a prisoner of war. If they indict him, they might not have enough
evidence to convict him. If they treat him as a prisoner of war, bin
Laden (or his lawyers) would undoubtedly take the position that
soldiers in war cannot be held responsible for killing the enemy. In
this regard, it should be noted that a few years ago, bin Laden
published an open declaration of war against the United States.
<p>
Consider, for example, the Japanese pilots who attacked Pearl Harbor.
If any of them had been taken prisoner, they could not have been
tried for murder. And they would have had to be released at the end
of the war.
<p>
If the September 11 attacks are treated as acts of war and not
criminal acts of murder, then does that mean that U.S. officials
would have to indict bin Laden for war crimes arising out of his
targeting noncombatants during war in order to avoid having to
release him when the war is over?
<p>
Equally important, a disturbing question arises: By treating the
September 11 attacks as acts of war and then proceeding to wage war
against both Afghanistan and bin Laden and al-Qaeda, has the U.S.
government effectively legalized acts of terrorism here on American
soil. Let's assume that a terrorist bombs a U.S. military
installation here in the United States, which causes the deaths of
hundreds of military personnel and civilians. When arrested, he
raises his hands and says, "I am a member of the Taliban army. I
surrender. I am your prisoner." Under the rules of war, a soldier
cannot be held legally responsible for murder. He becomes a prisoner
of war, to be released at the end of the war. Of course, the U.S.
government could argue that he is a spy since he's not wearing a
uniform (Taliban soldiers do not wear uniforms) and execute him on
the spot. But would treating the bomber as a common criminal (subject
to the death penalty) or a war criminal (also subject to execution)
affect the way American POWs are treated by the enemy?
<p>
Extradition
<p>
If the September 11 attacks are treated as criminal acts of murder
(rather than as acts of war), then another problem arises: How does
the government bring the accused into the jurisdiction of a U.S.
district court when he is physically located in a foreign country?
<p>
One option is to send federal agents or bounty hunters into the
foreign jurisdiction to kidnap him and bring him back to the United
States. This actually does happen from time to time, even without the
permission of the government where the accused is residing. For
example, several years ago, U.S. agents entered into Mexico and,
without the authorization of the Mexican government, kidnapped
Mexican citizens who were suspected of conspiring to kill DEA agent
Enrique Camarena and brought them back to the United States. Under
U.S. law, the accused is not legally permitted to challenge the
manner in which he was brought into U.S. jurisdiction in the
subsequent federal court criminal proceeding.
<p>
The other option is extradition, which is the legal method by which
an accused is brought from one country to another country for trial.
Extradition usually requires a treaty between the two countries. If
there is an extradition treaty, then the host country is supposed to
send the accused to the requesting country after all extradition
procedures in the host country have been followed.
<p>
That is what happened in the case of Ira Einhorn, the accused
murderer from Pennsylvania who jumped bail many years ago and left
the country. Einhorn was discovered living in France, and extradition
procedures were initiated, which Einhorn resisted. After extradition
procedures (including appeals) were exhausted, the French authorities
forcibly returned Einhorn to the United States for trial.
<p>
What would have happened if the French authorities had refused to
return Einhorn? Presumably nothing, because the decision of the host
country is final in extradition matters. That is, there is no
international court of appeal. Recently the Chinese government has
demanded that the United States return Falun Gong members to China,
claiming that they have violated China law by committing common
crimes. There is no extradition treaty between China and the United
States, and the U.S. government has refused to return the Falun Gong
members to China. There isn't anything that the Chinese government
can do about it.
<p>
Thus, when there is no extradition agreement between two countries,
the decision to return the accused is at the discretion of the host
country. Since there is no extradition treaty between Afghanistan and
the United States, there is no legal requirement for the Afghan
regime to extradite bin Laden. However, they could do so if they
wished.
<p>
The burden of proof
<p>
If the September 11 attacks are treated as criminal acts, then bin
Laden and his cohorts must be indicted for murder (or conspiracy to
commit murder). The amount of proof required for a criminal
indictment is "probable cause" that the accused committed the crime.
The amount of proof required to convict him would have to satisfy the
"beyond a reasonable doubt" burden that has been long-established in
the American criminal-justice system The U.S. government's refusal to
publicly disclose its evidence linking bin Laden to the September 11
attacks is causing some people to wonder whether there actually
exists sufficient evidence to convict him of conspiracy should he in
fact be captured. This might cause some people to suggest that bin
Laden should be killed at all costs, even if he attempts to
surrender, since a trial might prove to be embarrassing in the
absence of sufficient evidence to convict.
<p>
Yet despite the horrific nature of the crime and the large number of
victims, isn't it incumbent on libertarians to continue a steadfast
allegiance to both the rules of warfare (if the attacks are treated
as acts of war) and the principles of due process of law, including
the presumption of innocence, that stretch all the way back to Magna
Carta (if they're treated as common crimes)? If a enemy soldier is
surrendering, then under the rules of warfare, he must be taken
captive and not executed. If a criminal suspect is surrendering,
under the principles of our criminal-justice system, he must be taken
captive and not executed. If we permit our government to abandon
those principles, then don't we in the process fall to the level of
the barbarian and the criminal?
<p>
The declaration-of-war requirement under the Constitution
<p>
Let's assume that the September 11 attacks are treated as an act of
war. The next hurdle that libertarians must face before endorsing the
waging of war against bin Laden is a constitutional one: the
requirement for a declaration of war, which libertarians have always
held is a critically important part of our Constitution.
<p>
Did the Congress declare war against bin Laden (or against
Afghanistan)? No. All it did was grant Caesar-like powers to
President Bush to wage war against anyone the president believed
committed the terrorist acts anywhere in the world. The vesting of
such powers is not a declaration of war and the granting of such
dictatorial-like powers is not even authorized by the Constitution.
So, how can libertarians endorse the U.S. government's waging of war
against bin Laden (and Afghanistan) in the absence of constitutional
authority? Doesn't the rule of law dictate that the Constitution be
followed, even when the consequences of doing so are unsatisfactory
to people?
<p>
"But once the shooting starts, then we've got to forget that
constitutional provision and support the president," some
libertarians might argue. But if that's the case, then how does that
constitutional provision ever get enforced, especially given that the
Supreme Court has abrogated its responsibility by refusing to declare
any acts dealing with foreign affairs unconstitutional? Is the
solution a new constitutional amendment that requires the declaration
of war and that includes a parenthesis saying, "This time we mean
it"? What if the president then ignores both the restriction and the
parenthesis? Isn't the only way for the citizenry to restore
compliance with the Constitution to oppose any and all wars waged by
the president in the absence of a constitutional declaration of war?
To support any presidential war that is being waged in the absence of
a declaration of war effectively reinforces and supports a
governmental decision to ignore the Constitution.
<p>
What is the required legal burden of proof for a declaration of war?
There is none; the issue lies solely with Congress. The president
might decide to provide some evidence or he might decide to withhold
it and ask to be trusted. Either way, Congress could weigh the matter
and then decide to declare war or not, evidence or no evidence.
However, it would be ironic that the Congress would use a lesser
burden to declare war than a federal grand jury would use to indict a
person. Or it might even be asked why Congress should not apply the
same burden of proof required to convict a person of a crime ("beyond
a reasonable doubt") to deciding whether to declare war against the
person.
<p>
Let's assume that a declaration of war against bin Laden (but not
Afghanistan) is secured, possibly a problematic matter because of his
status as a private person. Would such a declaration justify an
attack within the borders of a sovereign nation where the person is
located? It is hard to see how it would if the government is totally
innocent of the conspiracy and if the accused is simply residing
within the territorial jurisdiction of that nation. Again, we're back
to the problems associated with extradition. After all, how would the
U.S. government respond if China conducted military attacks on the
Falun Gong members who are now living in the United States?
<p>
But what if the nation where the terrorist is located is "harboring"
him? Under the criminal law, a person can be held liable for
"harboring" a criminal in his house or on his property. But it would
seem that that's a difficult standard to apply to a nation in which
the a suspected criminal is residing. (The case of Falun Gong members
that the Chinese government accuses of crimes and who are residing in
the United States comes to mind.)
<p>
But it's entirely possible that the Taliban (or some other
nation-state) assisted or supported the September 11 attacks or even
knowingly permitted the terrorists to use Afghan territory to plan
the attacks. If so, then it would seem that that would constitute an
act of war by the nation-state of Afghanistan. In that case, it would
be understandable if libertarians endorsed military action against
the regime. But they must face up to two important matters: first,
that the U.S. Constitution requires that Congress declare war before
the president can wage war, something that the Congress has not done;
second, libertarians, who historically have counseled people to be
wary of trusting government, would find themselves in the awkward
position of renouncing that counsel in view of the president's
request to trust him that the evidence really is there.
<p>
Let's assume though that the Congress did declare war against both
Afghanistan and bin Laden. Would that mean that all libertarians
would then unite behind the president and endorse military strikes
against bin Laden and the bombing of Afghanistan?
<p>
Not necessarily. The debate would turn to how the war should be
waged, i.e., would the bombing of Afghanistan be in the long-term
interests of the American people? Obviously different answers to that
question are possible, but what's important is that the inquiry be
made rather than that we simply blindly endorse whatever the
president does under some misguided sense of "patriotism."
<p>
It's entirely possible that someone, after analyzing and reflecting,
could come to the conclusion that the attacks would be in the best
interest of the American people, in which case he would endorse them.
<p>
On the other hand, a person might conclude that the attacks would
actually make the situation worse and recommend against them. As
Sheldon Richman has pointed out, citing Randoph Bourne, war is like
riding a wild elephant -- you don't really know where it's going to
end up but usually it's a long way from where you intended to end up.
That's one important reason that war should always be a last resort,
not a first one.
<p>
But there's another important reason that libertarians might view the
military strikes as a last resort: we know (as our Founding Fathers
knew) that a free society is impossible during war -- government gets
bigger and stronger and ever-growing infringements of liberty are the
natural outcome despite the best efforts of people to stem their
tide. And once the war is over, the government never returns to its
size before the war.
<p>
Does this mean that those of us who have misgivings about the war
against Afghanistan are pacifists? Of course not. Sometimes war is
absolutely necessary but within that context it is sometimes best to
plan one's strategy with the long term in mind. We simply believe
that the bombing of Afghanistan will be likely to have long-term
adverse consequences, including the production of an even greater
number of terrorists who are motivated to attack Americans. And it
should be noted that according to an article in the October 20 issue
of the Washington Post, several Pentagon officers are also expressing
reservations about whether the attack on Afghanistan is in the
long-term interest of the United States. Thus, whether the military
strikes will prove to be in the best interest of the American people
is not a cut-and-dried matter.
<p>
Does this mean that libertarians who have serious misgivings about
the bombing of Afghanistan would do nothing to bring bin Laden and
his al-Qaeda associates to justice? Of course not. We simply advocate
a different strategy -- one that we believe is in the best interests
of the American people and that is based on the Constitution:
specifically the provision dealing with letters of marque, which our
Founders specifically designed for going after foreign criminals.
This provision authorizes the president to commission people to go
abroad in search of bin Laden and his associates with the intent of
bringing them to justice.
<p>
Foreign policy and terrorism
<p>
Finally, for decades libertarians have been arguing that the roots of
terrorism lie in the U.S. government's interventionist and imperial
foreign policy, including foreign aid to brutal dictatorial regimes
and taking sides in foreign conflicts, all of which tends to anger
people who are on the "wrong side." In other words, those
interventions, as libertarians have long pointed out, will ultimately
produce terrorist retaliatory measures.
<p>
Therefore, almost all libertarians have argued that in order to end
terrorism in the long term, it's necessary to pull the weed out by
the root by putting a stop to the U.S. government's interventionist
policy. Yet, since the September 11 attacks, some libertarians have
become totally silent about the relationship between U.S.
interventionist foreign policy and terrorism. Why? What better time
to argue the validity of a principle that libertarians have
maintained for decades?
<p>
Moreover, even if a libertarian assumes that the September 11 attacks
were motivated by blind hatred of Western values and culture (as some
libertarians are maintaining), that is no reason to abandon the
position that libertarians have long held that the U.S. government's
interventionist foreign policy breeds terrorism. For it is entirely
possible for libertarians to support the attacks on bin Laden and
Afghanistan and still call calling for an end to U.S. interventionism
overseas.
<p>
In other words, the two positions are not mutually exclusive -- it's
theoretically possible, for example, that the September 11 terrorists
were motivated by blind hatred of Western values and culture and that
another group is motivated by hatred arising out of U.S. foreign
policy. Wouldn't Americans be better off by at least being rid of the
second group and if so, shouldn't libertarians continue calling for
an end to U.S. foreign intervention, even during the current crisis?
<p>
There's a final question of a pragmatic nature that arises for those
libertarians who are now embracing and endorsing the president's
military action against Afghanistan and bin Laden. Why didn't they
call for it sooner? That is, why didn't they call for military action
(including attacks on Afghanistan or any other country that was
hosting bin Laden) after the 1993 attack on the World Trade Center,
after Osama bin Laden's open declaration of war against the United
States, after the attacks on the two U.S. embassies in Kenya and
Tanzania, and after the attack on the USS Cole? Why weren't those
acts of war against the United States? Why the change in position now?
<p>
Let me conclude by addressing the "war on terrorism," which is a
separate issue from military action against bin Laden, al-Qaeda, and
Afghanistan. First, it is possible to endorse military action against
Afghanistan and bin Laden without endorsing an indefinite and
nebulous "war on terrorism." Second, everyone needs to recognize a
fundamentally important fact: It will be impossible to achieve a
truly free society within the context of "a war on terrorism," which
will entail an ever-growing array of infringements on individual
liberty, despite the best efforts of libertarians to stem the tide.
<p>
Therefore, any libertarian who endorses the "war on terrorism" is
resigning himself to living in an unfree society, very likely for the
rest of his life. As a libertarian, he will spend the rest of his
days trying to limit the tide of infringements on liberty and
advocating minor reforms. He will have given up on achieving a free
society in our lifetime. I repeat: There is no possibility of
achieving a free society in the context of a "war on terrorism,"
which is perhaps the most important reason for advocates of a free
society to ardently and fervently oppose such a nebulous and
indefinite "war."
<p>
Mr. Hornberger is founder and president of The Future of Freedom
Foundation (www.fff.org) and co-editor of The Failure of America's
Foreign Wars.
<p>
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