Tuesday, August 10, 2004

Kerry's Lawyers vs. Bush's Warriors

Kerry?s Lawyers vs. Bush?s Warriors

This is a slightly different view of something I wrote about months ago. This writer suggests that war is what happens when law breaks down. That is not quite right. Law is what happens once security is established and maintained without attacked with violence. The difference is important.

If you use the "law breaks down" model, you are relying on a supposition that will need to fallacious conclusions. You then seek solutions that prevent "breakdown of the law."

In fact Usama seeks to stay outside of the law. Even seeks locations where the law has not operated in decades. The tribal region between Afghanistan and Pakistan has not a government operationally controlling the criminal actions of residents. It does not have a government providing security to its residents. It is the home of tribal leaders and warlords that see a situation more similar to the era of the Apache or the feudal era than to modern government.

This is important because the establishment of legal rights and the yearning to have property and person remain protected by judicious application of law require government first.

"Bush's Warriors," as the author defines it, is acting properly in attacking the enemy. Yet, today's news story that American general in command in Afghanistan has agreed to "kinder, gentler" search techniques in Eastern Afghanistan shows the complaints of persons having a growing expectation of protection of property and legal rights. Leaving aside the obvious potential abuses for propoganda purposes of the warlords, this is the kind of expectation of proper treatment by the government of Afghistan through its proxy of the US Army that we want to see.

I do not suggest that this is always militarily feasible, but the yearning for it is important.

Compare this to a scenario where we act as if a legal system were operating there. We would try to impose warrants for searches and seizures too early in the hunt for terrorists. The warlords would seize on this attempt at law as means to design ambushes while the heaviest fighting was yet to be had. In comparison of the war-first, law-second method of fighting in warlord areas, the risks of widespread military fighting is minimized, then law creeps in as the population begins to expect more fair treatment.

Introduction of kinder, gentler techniques does not mean a complete switch to warrant searches and seizures. Even in the Anglo-American system this took centuries from 1253 to the 1600's to fully establish. It should be implemented in a more complete model in Afghanistan in the first five to ten years after the Taliban's fall. Any faster and we can expect failure by the warlords' continued commitment to Clausewitz's destruction of the nascent political system through guerilla activities and Maoist methods of undermining the government's security for the population or at least the population's belief that security is possible.