The question was whether ObL was responsible for a specific act, not whether it was a "terrorist organization." Frankly, I was not fully persuaded that al Q had done it for about a month and a half.
>
>Even more bizarre is the reference to "due process." How was one
>supposed to get the Taliban to respond to discovery requests? To
>submit to subpoenas?
>
>
As we say in the biz, they opened the door to it by inviting the submission of evidence. If they had then stonewalled, we would have had a different situation. I don't yet say one justifying war, but a different one.
Look, Brad, in the criminal law, we often deal with really bad people who kill and lie and cheat and stuff. And we are still supposed to follow the rules. In my court are considering the case of a murderer and liar--it's clear he's both--who claims, possibly credibly, that his confession was coerced by torture. If on review of his submissions we determine that he should have a hearing, he will get one, and, if he persuades the judge that his confession was coerced, she may spring him on society.
The impulse to short circuit due process because you are dealing with bad guys is the one that ought to be clubbed. It's due process, not the possession of B-52s, that makes us the good guys to the extent that we are the good guys. Better than the Taliban, I'll grant, though that isn't saying much.
Max: I am aware of that ordinary norms of due process and criminal procedure do not apply in war. That begs the question. My argument has been that we should not have gone to war, but should have treated 9/11 asa crime calling for internatoional diplomacy and criminal investigation.
I ran into Peter Railton, my old dissertation advisor, and he suggested the following point, invoking Rawls (_his_ old teacher) since we were talking about Rawls the other day. He said that in deciding what would be the ethical thing to do in the wake pf the 9/11 attack, we should imagine that wea re Luxenbourg, and lack B-52s, Army Rangers, aircraft carriers, "daisy cutters," and force projection abilities generally. Luxembourg would have to invoke international cooperation and treat the attack as a subject for criminal investigation. The fact that we have the military might doesn't mean that it's right to use it.
Btw, the defect with the argument goes to the heart of what I think is wrong with Rawls' original position approach. The fact is, that them as has got the force, will use it. Until it is taken away from them.
jks
jks
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