Errors

by Andrew

 

We are all born as molecules in the hearts of a billion stars. Molecules that do not understand politics, polices, or differences. Over a billion years, we foolish molecules forgot who we are and where we came from. In desperate acts of ego, we give ourselves names, fight over lines on maps, and pretend that our light is better than everyone else's. The flame reminds us of the piece of those stars that lives on inside of us. The spark, that tells us, you should know better. The flame also reminds us, that life is precious, as each flame is unique and it goes out, it's gone forever. There will never be another quite like it.

Anyone who has ever taken a course in statistics is probably familiar with the concept of Type I and Type II errors. The concept is simple enough: a Type I error is assuming that something is true when it is false, while a Type II error is assuming that something is false when it is true. The frustrating thing about the two types of errors is that you cannot simultaneously minimize both of them. The harder you try to avoid Type I errors, the more likely you will make a Type II error, and vice versa. If you decide you're going to only accept a hypothesis if you are 99% certain it is correct, then a test that shows that you can be 95% sure it is correct will not be sufficient evidence for you, and so you will reject the hypothesis even though you are 95% sure it is correct, therefore taking a pretty good chance you will commit a Type II error. What makes these errors interesting is that they apply well beyond the rather staid world of statistics.

Let's take, for example, the possibility that any given individual at Guantanamo Bay is, in fact, an active combatant. I will define active combatant as someone who will, if free, do what he can to kill Westerners and further the cause of militant Islam. It is difficult for us to know for certain about many of those captured and brought to Guantanamo Bay; if they were not captured while being observed in action against U.S. forces, then they're likely there because someone else turned them in. While it is possible some of them were turned in legitimately, we know that at least some were turned in because they angered someone who had the ear of an American and who could therefore turn them in as al Qaeda simply as a form of retribution. So, for each person captured, the U.S. has to make a decision: are they active combatants we should detain, or are they simply people who had the bad luck to be in the wrong place at the wrong time?

Unfortunately for those people taken into custody, all the incentives in this equation point to avoiding Type I errors. If the U.S. releases someone who then takes up arms against the West again, there may be unpleasant questions regarding who made the decision to release someone who was a danger to the West when they were already in custody. If, on the other hand, the U.S. holds on to people who pose no real threat, who's going to care? Sure, there are people like Katherine who work very hard to point to such injustices and try to bring them to people's attention, but she and those like her have an uphill battle. For people not paying much attention to the issue, the fact that known al Qaeda personnel like Khalid Sheik Muhammed are at Guantanamo is probably all they need to know. After all, the conditions at Guantanamo are pretty cushy, right? You get an arrow on your cell floor pointing to Mecca, Halal meals, a roof over your head, etc. They're probably living better in Guantanamo than they are at home. And, in fact, that may be true, if we discount the rather important question of personal freedom, but it seems evident many people are willing to sacrifice the freedom of some foreigners if it means we in the West may be a little safer. So a few Type II errors are a small price to pay.

This is a particularly seductive argument because there is some truth in it. A nontrivial number of people are going to die in this war. Osama bin Laden and his ilk would kill all of us if they could, and they will succeed in killing some of us. And in our efforts to kill the bin Ladens of the world, we will kill many people ourselves. Even if we were to close out our efforts in Iraq and stick to striking at known terrorist targets, we will make mistakes (Type I errors of a different kind) and will kill innocents in our quest to prevent attacks on our innocents. Given those facts, there is a temptation to err on the side of protecting our own. The men and women who died in the World Trade Center, the Pentagon and on board the hijacked aircraft were much like us. The men and women who die from Western bombs or who languish in Western prisons are The Other, people whose life and customs are so vastly different from our own it is difficult for us to empathize with them, and all too easy to rationalize their death or imprisonment.

There are numerous arguments against such rationalization. I am particularly inclined towards two: the moral, and the practical. From a moral point of view, I have a great deal of reverence for the principles the United States is supposed to stand for. We have, over our long history, honored those ideals in the breach more often than not, but that does not undermine their importance. And our failures of the past do not mean that we cannot act properly now. The United States is supposed to stand for things like freedom and justice. In the past, our willingness to honor those ideals has bought us deserved standing in the rest of the world, moral authority, as people were discussing earlier this week. More importantly, it made us different. It made us special. We didn't torture people, we didn't wage unjust wars, and when we did err, we recognized our mistakes and tried to make good on them. That might not matter from a strictly practical perspective, but it means a great deal to me personally.

Does moral authority get you a lot? Probably not; nations have interests, not friends, and being popular overseas does not necessarily translate to increased leverage in the diplomatic arena. But I don't think it hurts. Jonathan Rauch quotes (subscription required) UN Deputy Secretary-General Mark Molloch-Brown's claim that many otherwise moderate countries are siding against the United States simply because doing so is politically advantageous. Regardless of how you feel about the UN, the point is valid; Tony Blair's political woes stem in no small part from his willingness to stand beside the United States, and it seems likely his successor will move Britain away from the United States if only to protect his party's prospects. Given that we in the West are all in this war together, from a strictly realpolitik standpoint it shouldn't matter how we all feel about one another, but politics frequently leads to people cutting off their nose to spite their face, and President Bush's ability to rile the Western world against him and his policies may well have already led to some instances of that.

More importantly, we are engaged in a counterinsurgency fight, and winning those means the battlefield is of limited utility at best. We all remember the famous claim, the North Vietnamese never beat the U.S. on the battlefield, and that may be true as far as it goes. But the North won the war, and that is all that counts in the end. By that same token, if the U.S. defeats militant Islamists wherever it can find them, but more and more countries flock to the banner of militant Islam, we will lose this war as well. And when that factor is entered into the calculation, Type II errors become a lot more important than Type I errors. Even were Pakistan to fall into the hands of militant Islam, their ability to hurt us is extremely limited. Assuming the worst case, perhaps they could destroy a few American cities with nuclear devices. I do not wish to understate the devastation such an attack would cause, but it would not destroy America. And given the fact Pakistan faces a nuclear threat directly over its eastern border, the chances they would give away some of their weapons for a strike at the U.S. and open themselves to direct attack from India (not to mention the likelihood of retaliation from the U.S.) is a questionable assumption. But every person we hold who doesn't belong there is at least one more person we are turning against the West. The more often we do this, the more people we can count on radicalizing sufficiently for them to take action against the West. This is the kind of equation we can overcome only by killing more radicals than we create, and in counterinsurgency this is next to impossible. We are therefore much better off accepting the risk of committing Type II errors by releasing all but those prisoners we are absolutely certain are active combatants and rolling the dice on the rest. Even if many or most of those we release try to act against the West, their ability to inflict harm is not that great.

I happen to believe that this war is an existential war for the United States. Not because militant Islam can destroy us, but because we appear determined to destroy ourselves in our attempt to win the war. It's time we start turning that trend around and focus on those qualities that make our civilization worth fighting for. Otherwise, the success or failure of militant Islam will be a sidenote in our history.

Comments

[Katherine]

"And the British would hit back; they'd over-react. They always did. Over the next four years, they never let us down. It wasn't that they made bad judgements, got the mood of the country wrong: they never judged at all. They never considered the mood of the country worth judging. They made rebels of thousands of quiet people who'd never thought beyond their garden walls. The were always our greatest ally; we could never have done it without them."

--A Star Called Henry, Roddy Doyle.

(a novel, granted--the narrator is talking about the IRA in the 1920s--but even so.)

[double-plus-ungood]

Osama bin Laden and his ilk would kill all of us if they could...

That's a pretty big assumption, if it is indeed an assumption. I don't think it's even close to true, and things like that are part of the reason we're in the mess we find ourselves in.

[Gary Farber]

"We are all born as molecules in the hearts of a billion stars."

This seems to be a quote from something, but I don't recognize it. Regardless, it's wildly wrong.

Molecules couldn't possibly survive in the middle of nuclear fusion, of course.

If you want to say we're all born as sub-atomic particles in the hearts of a billion stars, or as atoms, or, poetically, as "stardust," or somesuch, that's perfectly reasonable, and such things are said all the time.

But "molecules" is just blatantly wrong, and is dreadful science.

Wait, let me guess: it's J. Michael Straczynski? He's never been good at science.

[Andrew]

Good guess. I suspect he meant atoms, which would be correct. I think 'wildly wrong' is, well, wildly wrong, btw. If I am not mistaken,every atom in our bodies was once part of a star, since it required fusion to create all the various heavier elements we currently enjoy.

[pedro]

"The men and women who die from Western bombs or who languish in Western prisons are The Other, people whose life and customs are so vastly different from our own it is difficult for us to empathize with them, and all too easy to rationalize their death or imprisonment."

I salute Andrew for speaking this inconvenient fact. I find nationalism and ethnocentrism--the willingness to act indistinguishably from someone who holds that the value of the lives of The Other is inferior to the value of the lives of Our Own--to be morally monstruous. But I admit that I live among a majority of people who, whether consciously or unconsciously, embrace to some degree some very nationalistic or ethnocentric feelings.

In a morally less imperfect world, a calculus for going to war should be predicated on the tenet that innocent human life is equally valuable everywhere, regardless of race, class, gender, political and sexual orientation, and culture. The very United States that Andrew finds exemplary in its commitment to lofty ideas about freedom, etc., is a nation that has engaged in profoundly disturbing interventions over the years, at least one of which deeply affected the lives of some of my relatives. The United States is indeed in a position of overwhelming power in the world community, and its errors, however tiny they may seem to the uncritical eye of the patriot, can have significant consequences in the lives of many of us who are not fortunate enough to be citizens of the first world. To our eyes, it is patently obvious that the generality of Americans (not the totality) regards us as The Other to which Andrew refers in his post. And this, along with those pesky little errors of foreign policy, friends, is why many among us in the Third World do indeed hate the United States.

[Gary Farber]

Now that I think about it, I vaguely remember that from the start of a B5 episode, as narrated by G'Kar; I recall wincing at the time at "molecules."

[Gary Farber]

"If I am not mistaken,every atom in our bodies was once part of a star"

Yes, atoms; atoms =\ molecules by orders of magnitude, of course. It's as "wildly wrong" as, literally, the difference between a stick of dynamite (chemical, molecular, explosion) and a hydrogen bomb (atomic fusion).

[Bill Arnold]

Osama bin Laden and his ilk would kill all of us if they could...

That's a pretty big assumption, if it is indeed an assumption. I don't think it's even close to true, and things like that are part of the reason we're in the mess we find ourselves in.

In particular, various sources have Bin Laden wanting to kill 4-20 million Americans. (There are three different stories at least, 4, 10, and 20 million) If he had a dial-o-death machine which could be set to kill N% of Americans, he has said, basically, that he would set it at 1-7 percent. (Then he'd revisit if that didn't change our attitudes sufficiently, according to one of the stories.)

So, "would kill us all" is probably hyperbole, at least with respect to Bin Laden & close associates. There are probably people of "his ilk" who would be psychopathic enough to go for the 100% top-of-the-dial.

[Andrew]

Er...a molecule can be comprised of a whopping two atoms. Unless I'm mistaken about the meaning of 'order of magnitude' I don't think it applies here.

And stop threadjacking. ;)

[john miller]

"I happen to believe that this war is an existential war for the United States. Not because militant Islam can destroy us, but because we appear determined to destroy ourselves in our attempt to win the war."

I believe it was Winston Churchill who commented that deomcracy was the only form of government which is created in such a way as to be able to destory itself. As people vote for representatives who are willing to give up our rights, or willing to support a policy that continues to increase our isolation in the world, we can definitely destory ourselves.

Of course, if people really recognized that the terrorists cannot destroy us, and realized that the methods currently being used only create more terrorists, not minimize them, then maybe they would vote differently.

As a mental health professional I have long believed that the biggest motivator of people is fear, and the current administration knows how to play that to the hilt.

Andrew, an excellent post.

[lily]

Yes,Andrew, thank you. we are in a war to save America from what people do in the name of fighting terrorism, which is really partisan politics. I am going to call the enemy by what I believe to be its real name:Republicans. And right now there is a very serious battle in this fight: ABC'S plan to spread lies about the 911 attack and the events leading up to it, using a script written by Republicans and promoted through right wing media outlets. I'm not scared of terrorists. I am scared of the ruthless unprincipled people who make up the activist base and political leadership of the Republican party and the partisan supporters who should know better but continue rationalizing their support, or, worse, are too damn irresponsible to bother acquainting themselves with the facts about their party's behavior.. Sick of it.

[Katherine]

Wait a sec: is it really true that the harder you try to avoid one type of error, the more likely you are to make another?

I don't buy it. DNA testing reduces both sorts of errors. Making sure that courts have enough resources to function properly in a given case reduces both sorts of errors. Every time someone is wrongfully convicted of murder, the real murderer walks free. Etc. etc.

And in cases where there are trade offs, it's often possible to do a lot to reduce one error without increasing the other much at all.

'm thinking of giving people lawyers in immigration proceedings. Obviously, having a lawyer helps

[Katherine]

oops. that last sentence fragment was supposed to be deleted.

[CharleyCarp]

Deletion or not, I'd like to think that having a lawyer helps. Maybe the ability to cross examine witnesses, showing their bias and/or inability to have made the correct identification. There's that one prisoner who's fingered 60 others, and apparently if you look at the timelines, you find that over and over the identifications he made are impossible: e.g., the guy could not have been at the camp the informer says, because he was in another country at thre time, even using the government's own records.

Andrew, I think just letting everyone go except the ones known to be big fish is a small risk. Adding one or two people to a cell in Pakistan or Yemen -- if this is even what happens -- just isn't that big a deal. We really had a chance, though, when Rasul came out, and then a modest reprise of the chance when Hamdan came out, to use the system we have specifically designed to figure out whether we have enough evidence to hold people. While the best and the brightest in some parts of the world have been trying to work out God's will (or Allah's will), the best and the brightest in our system have been trying to find the right balance between individual autonomy and the coercive power of the state. We could have had a demonstration of how democratic liberty works far more powerful than all the painted schools in al Anbar, but have apparently chosen to be hypocrites instead.

The notion that some schmoe from Yemen sitting in jail can sue the President of the United States, win, and have the President comply with that order is a big damn deal. Too bad neither the President nor most of his adherents (seemingly) actually believe in our constitutional system. Or enough to see it actually applied.

[JakeB]

"Er...a molecule can be comprised of a whopping two atoms. Unless I'm mistaken about the meaning of 'order of magnitude' I don't think it applies here."

And the majority of molecules in any reasonably young star are in fact of the two-atom type. The vast majority, if you were to include helium as well.

[JakeB]

"Wait a sec: is it really true that the harder you try to avoid one type of error, the more likely you are to make another?

I don't buy it. DNA testing reduces both sorts of errors. Making sure that courts have enough resources to function properly in a given case reduces both sorts of errors. Every time someone is wrongfully convicted of murder, the real murderer walks free. Etc. etc."

You're both right. You might say that along any given dimension of testing, there's a trade-off between false negatives and false positives. DNA testing would be a new dimension in that sense, with the ability to give new information. In that sense, your note about the courts means that you want a sufficiently large number of dimensions in which these things are balanced to get the right results.

[SomeOtherDude]

Statistical errors, indeed:

The owner of DataUSA Inc., a company that conducted political polls for the campaigns of President Bush, Sen. Joe Lieberman and other candidates, pleaded guilty to fraud for making up survey and poll results.

Tracy Costin pleaded guilty Wednesday to one count of conspiracy to commit wire fraud. Costin, 46, faces a maximum of five years in prison and a fine of up to $250,000 when she is sentenced Nov. 30 . . . .

According to a federal indictment, Costin told employees to alter poll data, and managers at the company told employees to "talk to cats and dogs" when instructing them to fabricate the surveys.

From:
Buisness Week

[SomeOtherDude]

Fascists always blame outsiders for the terror fascists’ are about to inflict.

[Bernard Yomtov]

Wait a sec: is it really true that the harder you try to avoid one type of error, the more likely you are to make another?

I don't buy it. DNA testing reduces both sorts of errors. Making sure that courts have enough resources to function properly in a given case reduces both sorts of errors. Every time someone is wrongfully convicted of murder, the real murderer walks free. Etc. etc.

Good question and good point. It really is true for a given fixed set of procedures, but improved procedures, like DNA testing, can reduce both false negatives and false positives.

[Chuchundra]

Stracynski once remarked in a Usenet post that he didn't really need a science advisor on the show since he had been reading science fiction all of his life and was therefore confident enough in his knowledge of basic science to do without one.

If you're looking for a better quote along this same theme, I suggest the work of the this guy

[hilzoy]

"I salute Andrew for speaking this inconvenient fact."

I salute Andrew, period. This is a great post.

About type 1 and type 2 errors: as was said above, what Andrew said is true on a given dimension of testing. Moreover, it's easy -- trivially easy -- to completely eliminate either kind of error: just decide that everyone you detain is guilty, and no guilty people set free; just decide that everyone is innocent, and no innocent people detained. The trick is deciding how to strike the right balance, and using the tests and procedures available to you to do it.

Every single time this administration has had to choose between our values as a nation and their counterproductive idea of toughness, they have gone for the latter. What they have done to our nation and our moral standing will take generations to undo, and I find it hard to forgive them for that.

I can't imagine how hard it would be if I, like the Uighurs who were imprisoned at Guantanamo, had been robbed not just of my views about my country, but of years of my life and my freedom. And for what?

[Anarch]

ObPedant:

And the majority of molecules in any reasonably young star are in fact of the two-atom type. The vast majority, if you were to include helium as well.

But the vast majority of matter in a star -- or a solar system, for that matter -- isn't in either molecular or atomic form at all. It's plasma; nucleonic but non-atomic for all intents and purposes.

[Though someone like rilkefan is free to tell me I'm completely misusing the terminology here.]

And yes, excellent post, Andrew.

[J. Michael Neal]

Because it's what I do, I'm going to nitpick.

Let's take, for example, the possibility that any given individual at Guantanamo Bay is, in fact, an active combatant. I will define active combatant as someone who will, if free, do what he can to kill Westerners and further the cause of militant Islam.

In the legal sense, this is not an accurate definition. Common Article 3, which seems to be the most relevent source, since the War Crimes Act refers it, says this:

"1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,"

Clearly, under the legal standard, someone who is imprisoned by the United tates can not be an active combatant against the United States. What they would do if freed is not relevent.

Of course, Andrew's whole post was about deciding who should be incarcerated lest they become an active combatant. I just think that this was a poor way to introduce it.

As for Type I and Type II errors, those are statistical terms, and there is no way to minimize them both with statistical tools. There are lots of ways in which they can both be minimized by other tools, but the terms aren't meant to describe those methods. In practice, they serve as adequate descriptors in other cases, but won't stand up to very much scrutiny.

[otto]

Ye gods! Andrew, I think this may be the first post of yours that I've read. It's excellent. Some great calls. Thanks. Looking forward to more.

BTW, did anyone happen to catch the “Colbert Report” a few weeks ago maybe when he was doing his "Formidable Opponent” segment on the popular argument for keeping the folks in GITMO behind bars? Good stuff.

As for the existential component, there’s a bit in James Carroll’s “Crusade: Chronicles of an Unjust War” where he talks about the current war having the benefit of locating an unstable American public in both time and space (sorry I don’t have page numbers, my copy is in my office tight now). See also “All that Is Solid Melts into Air” by Marshall Berman - one of the best books for understanding the problems of modernity that I’ve ever read.

[Jesurgislac]

While it is possible some of them were turned in legitimately, we know that at least some were turned in because they angered someone who had the ear of an American and who could therefore turn them in as al Qaeda simply as a form of retribution.

We also know that at least some were turned in because the Americans were paying for "Taliban fighters" and "al-Qaeda". "Bounties ranged from $3,000 to $25,000, the detainees testified during military tribunals, according to transcripts the U.S. government gave The Associated Press to comply with a Freedom of Information lawsuit." cite

Unfortunately for those people taken into custody, all the incentives in this equation point to avoiding Type I errors.

In the short term, yes, I can sort of see that. Long term, of course, it would be better for the US not to be in breach of the Geneva Convention relative to the Treatment of Prisoners of War, and probably better for the US not to take the position that a country is entitled to detain indefinitely people whom that country claims might someday be a threat to them, no matter whether there is little or no evidence that they ever would have been.

After all, Andrew, someday, the people kidnapped/sold and detained indefinitely may be Americans: and the US can hardly protest that this is wrong when so many Americans are arguing now so passionately and publicly that it is perfectly right.

The things a country does when it thinks it's so powerful that it doesn't matter what offenses against justice it commits, all too often do come back to bite that country's people in the ass, years or decades later.

[socratic_me]

Wow. Excellent post, Andrew. Quite a lot to chew on there, and all of it tasty.

[Jesurgislac]

Oops. Post coffee, and with considerable embarrassment: having read Andrew's post again, this time post-coffee, I see that Andrew is, in fact, arguing that the US should do the just thing and release all prisoners except where there is definite evidence that they are terrorists. Oh well. Time spent explaining why Article 5 matters is never wasted, and I'm pleased that I was wrong in my initial assessment of what Andrew was saying. If embarrassed. :-( Shorter Jesurgislac: Ignore previous comment.

[liberal japonicus]

Andrew,
interesting post, but one thing that bothers me is that I don't think it can possibly be an existential struggle, because the notions of Sharia cannot exist given what we have learned in the past millenium. If it is not possible for one side to 'win', by completely dictating the conditions that we live under, it can't be an 'existential' struggle. Depression, for example, only becomes 'existential' if the person chooses to take their own life. That seems to be the situation we have, this will only be existential if we decide to make it existential and destroy ourselves.

It seems to me that the only reason that fundamentalist Islamic sects have arisen is in response to dictatorships/oligarchies that have taken away so much from people as to make them think that having the bulwark of religion would be a better choice than what they have now. Oil countries like Saudi Arabia have essentially been able to buy off their people, and they have been able to do it because we continue to be dependent on their oil. However, if they no longer can buy off their population, the whole thing falls apart. That is not existential, that is a trap of our own making.

[pedro]

Call me cynical, but as much as I like the spirit and the tone of Andrew's post, I doubt this is an existential struggle for the United States. The United States has already a rich history of doing things that would make decent Americans cringe to know, and the symbolic status of the principles of Justice and Freedom in the American hegemonic lexicon has not been in peril because of it. In twenty years time, someone else will likely be writing a laudable exhortation to Americans to treat some other pernicious conflict as an existential struggle for the United States, one in which the status of America's commitment to Freedom and Justice is at unprecedented peril.

So long as Americans believe their country to be some sort of magnanimous giant with a few diminutive blemishes here and there, American hegemonic language will continue to be dominated by references to Freedom and Justice, and to all manner of lofty ideas.

That said, I do believe it is very important that Americans--who are less cynical about America than someone like me is--should listen to Andrew. For the more dissonant the language of Freedom and Justice sound at home, the more egregiously hypocritical it sounds abroad. And I say this as someone who has developed over the years an affection for the United States, in spite of its many blemishes. (I think any other country, in a position of similar power with respect to the rest of the world, would be afflicted with similar blemishes if not more significant ones.)

[OCSteve]

We are therefore much better off accepting the risk of committing Type II errors by releasing all but those prisoners we are absolutely certain are active combatants and rolling the dice on the rest. Even if many or most of those we release try to act against the West, their ability to inflict harm is not that great.

I suspect that the friends and families of those killed by the 8 detainees released from Gitmo who went right back to the battlefield in Afghanistan would tend to disagree with you. They probably consider the deaths of their loved ones more than a “Type II error” as well. Two years ago it was at least 8 – more now I’m sure.

[liberal japonicus]

OCSteve,
You might want to consider that those released prisoners were taken in Afghanistan, and had the administration not gone on to Iraq, they might have been better able to sort out who was who. Also note that the location is Waziristan, which is the topic of a recent Chas post as well as hilzoy's comments. I'm relatively sure that had we not wasted so much on Iraq, we would not have been under such pressure to release those prisoners, we would have had better assets within Afghanistan, and we would not be talking about the friends and family of those killed by them. Laying the blame on post hoc Type II errors for these shortcomings seems like a way to avoid coming to grips with the shortcomings and failures of this administration.

[Katherine]

You can't win a counterinsurgency with the attitude that it's better to lock up 200 innocent men that to free 8 guilty ones. You just can't.

[carib]

Let me enter a bit of a dissent here to all this high minded rhetoric. Andrew a least recognizes, as Katherine does not, that at least SOME of those Guantanamo detainees are are KSM and folks like him. Whether they pose an "existential" threat or not, they have shown themselves capable of killing thousands of innocent people.

Its quite possible that under normal law enforcement rules, even KSM would walk.Now I know that in a perfect world we should be able to try & convict a KSM under regular rules of court, but I strongly suspect that this might not be the case. Woulds he be allowed to confront his accuser? Would classified evidence be disallowed? Would evidence gained under duress be disallowed?

If all these strictures were to be applied, then it is possible and even likely that a KSM type would be set free.What happens then?
A hilzoy or Katherine may be happy with that result ( The integrity of the system is bigger than one case, etc, etc)but the vast majority of Amer cans would be VERY unhappy with a mass murderer being set free and given a chance to try again.Its quite likely that SOMETHING would have to be done, and I dont mean a wrongful death suit.
Its likely that if A KSM were acquitted, within a short time he would fall off a tall building or have a similar misfortune befall him-the Mossad way of dealing with terrorists.

Would this method of dealing with terrorists be better?

[carib]

You can't win a counterinsurgency with the attitude that it's better to lock up 200 innocent men that to free 8 guilty ones. You just can't.

_________________________

Sadly, of course you can. Thats how the Brits won against the IRA-quiet as its kept.

[hilzoy]

carib: I am not a lawyer, but since KSM's accuser would surely be the US government, he would have to be allowed to confront his accuser, as well as any witnesses the government chose to introduce. We have procedures for dealing with classified information that have worked well for quite some time, and allowed the conviction of the people who carried out the 1993 bombing, among others.

Moreover, while part of Andrew's post was high-minded rhetoric, part of it was hard-headed realism. If you detain someone who is innocent for years without trial, you will in all likelihood transform someone who might not have had anything against the US before into someone who is furious at us. Likewise, his family, friends, etc. will probably not accept his detention with equanimity. If you want to win a counterinsurgency, or a fight against terrorism, you need to sap the support of your opponents, not turn large numbers of people who might at first have been on your side, or at least neutral, into your sworn enemies.

[cleek]

carib, if the case against KSM is so clear that you're willing to bend the rules to make sure he doesn't walk, what makes you think the existing rules wouldn't convict him, given the same evidence that's convinced you ?

[Katherine]

"Andrew a least recognizes, as Katherine does not, that at least SOME of those Guantanamo detainees are are KSM and folks like him."

Excuse me, but what on earth are you talking about? I know perfectly well who KSM is, who Ramzi bin al Shibh is, who Hambali, and all the rest. I'd heard of 13 of the 14 before this week, even, which I'd suspect is more than a lot of people.

I don't think anyone that dangerous was there before this week, but sure, absolutely, some of them are terrorists. I don't know how many. What I have been arguing against is the assumption that ALL of them are terrorists.

[Gromit]

cleek, the problem with KSM is that we already know he was tortured. His prosecution might very well have been boned from the beginning.

[emmanuel goldstein]

Andrew, congratulations, great post. Also, doesn't OCSteve need to show that it wasn't the unjust detention that radicalised the detainees?

[carib]

HILZOY:

carib: I am not a lawyer, but since KSM's accuser would surely be the US government, he would have to be allowed to confront his accuser, as well as any witnesses the government chose to introduce. We have procedures for dealing with classified information that have worked well for quite some time, and allowed the conviction of the people who carried out the 1993 bombing, among others.

______________________

By accusser, I meant the person ( likely Pakistani) who fingered KSM at the time of his arrest. I am sure he won't want any part of having to come to the USA to face KSM and his lawyer in a US court. Its possible his memory is failing already. Again, its not at all clear that the USA has any evidence gainst KSM that would survive the strictures against using evidence obtained under duress or classified evidence that the defence cant see.
As to your point against not creating enemies unnecessarily, I'm with you there. But its generally only easy in hindsight to pick out the wrongfully imprisoned. In the meantime, we knowe of eight who have been wrongfully released ( and that might be an undercount)

[carib]

CLEEK

Because the major evidence against him may be convincing and accurate, but not be admissible. This happens in the world of terrorism, which is why the Israelis don't try terrorists-they assassinate them

[carib]

KATHERINE

I apologise. I kind of overreached there. Hoever, those who read your posts could easily get the impression that you don't actually believe that there are ANY people at Guantanamo who were rightfully detained.I dont really remember you entertaining that possibility. Its generally posts about the poor goatherd who got swept up in a raid, etc, etc.

[Katherine]

I don't know how to handle the fact that these guys were tortured. You exclude that evidence, obviously--I don't there would be much difficulty convicting them without it; if we can sentence people to decades in prison for playing paintball it shouldn't be a big deal finding enough to convict KSM--but the "fruits of the poisonous tree" doctrine would be a problem in a federal court: if Abu Zubaida was tortured into revealing KSM's location, then arguably the documents seized in the raid are inadmissible. I don't know whether there's an analagous doctrine in courts martial or military tribunals...In the federal courts, frankly, any jury is overwhelmingly likely to convict KSM even if a lot of the evidence against him is tainted. I mean, there was apparently one juror who held out against executing Moussaoui, who was clearly a kook and and a wannabe. I'd much rather the public revulsion for his crimes express itself through a court of law with an angry, angry, angry jury than through us silently cheering as he's assassinated or tortured. It's not like you need a smoking gun in the form of signed orders to Muhammad Atta, either--our federal terrorism laws are extremely, extremely prosecutor friendly. Anyway, didn't he and bin al Shibh brag about some of this stuff to a TV reporter?

And that's federal court; I assume it'd be easier in a court martial or a fair military commission, both of which I could certainly live with.

So there are some real obstacles to prosecution, but it might well be possible.

Even if he were acquitted, there is a serious argument that he could be detained as an enemy combatant for the duration of the war with al Qaida. I am extremely uncomfortable with a war that is not limited in space or time--a lot of the high level people were not captured near the shooting war--but there's a strong argument that that's exactly what Congress authorized, so....

I know people who say: "the law is the law; if it means KSM walks, he walks". They are, frankly, made of sterner stuff than me. But I don't think following the law has to mean he walks. I really don't.

All of this is completely separate from the question of whether courts should lose habeas jurisdiction over Guantanamo, or whether the CSRTs and ARBs are adequate to ensure that the people detained there are actually a danger to the United States.

[Katherine]

carib--thanks.

I focus on these cases because they're more numerous and much, much, much less widely known & reported.

[radish]

we knowe of eight who have been wrongfully released ( and that might be an undercount)

Where I come from we call that begging the question. The question at hand is what constitutes rightful/wrongful detainment/release. Whether the release of Abdullah Mehsud was "wrongful" is a specific instance of that question.

In OCSteve's link, the administration seems to be saying that they were somehow obligated to release Mehsud because of "international pressure."

I find that mystifying (and I would be interested in CharleyCarp's take on it), because it says in the article that Mehsud was "a former Taliban commander." This makes him an Article 4 POW (assuming I'm remembering my articles right). Specifically, it makes him someone who may be held until cessation of hostilities, full stop.

Perhaps I should elaborate, in case you don't grasp how significant that is. Legally speaking, Mehsud wasn't even entitled to a tribunal to determine his status. He was a POW. He could have been kept under lock and key and maximum security until the war in Afghanistan was over. Oh, wait...

You see the problem?

If Mehsud fooled the combined interrogatory forces of CIA and DIA it's hardly plausible to blame "international pressure." It's plain old incompetence. OTOH, if we knew Mehsud was a talibani we could have kept him as long as we liked, and interrogated him using means short of torture, with Human Rights Watch's blessing, to our hearts' content. All we had to do was treat him as a POW.

There are certainly other possibilities, e.g. a determination that the war was over would obligate us to release him. But the world wasn't pressuring us to make that determination. In fact I don't think there's any circumstance other than the end of the war where the release of a known talibani would be required by the GCs (again, I'll defer to CharleyCarp if he wants to weigh in). The US would have been well within its rights to keep Mehsud as long as the war in Afghanistan was still going on.

If anything, this strikes me as a basis for an argument that the administration is not taking the War on Terra seriously. Either they failed to apply the necessary resources to determining whether Mehsud posed a threat, or they knew he was a threat and let him go when they were under no obligation to do so, or they declared victory in Afghanistan long before victory was acheived.

[dmbeaster]

What lily said.

So much of what Bush leadership is doing has to do with partisan politics, with little thought to actually fighting the terrorists. Nothing could demonstrate it better than the recent info revisiting the Bush decision to let Osama go in 2001 in favor of chasing down Saddam, and lying at the time about how Sadaam allegedly had something to do with Al Queda.
_________

You can't win a counterinsurgency with the attitude that its better to lock up 200 innocent men than to free 8 guilty ones.

Carib responds that you can in fact do so, and he's right. But not without abandoning democratic values, which is the unstated premise of Katherine's point. Stalin imprisoned and killed millions of innocents in order to get at the few insurgents to his power, and it worked for him.

As for OCSteve, is he a Malkin cheerleader who would happily lock up all Muslims in internment camps in order to make us safe from the few terrorists amongst them? That is the natural implication of a policy that believes it proper to lock up probable innocents in order to avoid ever releasing any potential hostile.

Bring back Manzanar.

[Andrew]

Carib responds that you can in fact do so, and he's right.

Actually, in this case I think he's wrong. Because the counterinsurgency is spread among ~1 billion Muslims, we don't have the resources to crack down on it to the degree necessary to prevent it using nondemocratic needs. Therefore, speaking strictly from a practical perspective, we're really only left with winning the counterinsurgency via undercutting its base through information operations.

[CaseyL]

"Bring back Manzanar."

I don't know about OCSteve, but I know Malkin supports internment camps for Muslims.

[CharleyCarp]

we knowe of eight who have been wrongfully released ( and that might be an undercount)

Can you say how many were 'wrongly' released after a fair trial? I can: 0.

That some folks who were released for political reasons -- to shore up Karzai, for example, or Blair -- behave in a certain way tells you absolutely nothing about what would happen if we acted as if we actually believed in our own values, and had real trials.

OC, that release article is pre-Rasul, and thus pre-CSRT. If anyone is still fooling investigators at this point, it's because they're not trying.

Of course it's completely ridiculous to say that the release of any one particular soldier is the cause of a battlefield death. In an engagement between armed groups, there are going to be some casualties. Take one guy out of a platoon before it is formed and what do you get -- a platoon that is the same except that there's one different guy.

[SomeOtherDude]

Considering that the Bush administration would rather sweep up goat-herders and Iraqis rather than Bin Laden and his crew, giving them the power of assassination would be tantamount to genocide.

[Anarch]

To those discussing Andrew's point about existential war, I'd urge you to re-read the opening of his last paragraph:

I happen to believe that this war is an existential war for the United States. Not because militant Islam can destroy us, but because we appear determined to destroy ourselves in our attempt to win the war.

I think that's exactly right. bin Laden and his kin can hurt us, anger us, enrage us... but they can't destroy us. Only we can.

[Jay]

Carib: The problems in Ireland were most definatly *NOT* settled by internment.

Internment policies were hugely counterproductive to bringing the problems to an end. And the eventual peace did not come till long after the internment policies had been ended, and the Maze shut down.

[Katherine]

I was going to say...

Louise Richardson, the prof. of my counterterrorism class in law school, was from Belfast. She said the mass internments were hugely counterproductive. There were stories of the IRA calling in anonymous tips on widows, orphans, & the mentally disabled to make the British look awful.

She has a new book out, by the way, just reviewed in the NY Times. I haven't read the book itself, but here's an excerpt from the review:

She points out that most governments go through an initial phase of draconian measures with full public support, a second phase of polarization, when liberals bleating about human and civic rights are treated as semitraitorous wimps, and a third phase that comes with the understanding that the tough tactics are not working as expected and that (as Defense Secretary Donald Rumsfeld seems to have realized in Iraq) they are creating new terrorists faster than the old ones can be killed or neutralized.

Looks like we're right on schedule: somewhere in phase 2--hopefully nearing the end of it.

[socratic_me]

I suspect that the friends and families of those killed by the 8 detainees released from Gitmo who went right back to the battlefield in Afghanistan would tend to disagree with you. They probably consider the deaths of their loved ones more than a “Type II error” as well. Two years ago it was at least 8 – more now I’m sure.

And I am equally sure that the families of those who have been wrongfully imprisoned would tend to disagree that this is acceptable, would consider the wrongful imprisonment of their loved ones more than just a "Type I error" and, morevoer, I strongly suspect that there are more than 8 of those people.

The problem Andrew points out is that making one set of people less angry runs the possibility of making the other side more angry. Thus, all of that discussion of how we must balance the two types of errors.

Lastly, I suspect that if we could provide more stories of the transistion of Iraqis from moderate to radical because of mistreatment by U.S. forces, instead of just providing statistics that show that such radicalizing is actually happening, we would find the families of those killed by such radicalized Iraqis would also consider their loved ones deaths as more than just a result of "Type 1 errors".

Yet again, this whole argument strikes me as an inability to grasp that the "other side" is equally outraged by injustice and unwarranted death as we are and that this does, indeed, have repercussions.

[Katherine]

Lovely.

[JakeB]

"In Ireland they'll put you away in the Maze
In England they'll keep you for seven long days
God help you if ever you're caught on these shores
The coppers need someone and they walk through that door"

Sorry, Jay's comment gave me an irresistable urge to quote the Pogues.

[JakeB]

Katherine--
The idea of that fat slob being the primary architect of our national self-destruction seems hellishly preposterous yet all too plausible.
I'm reminded of how unbelievable I found Mussolini's rise to power when I read about it. Yet he did.
Karl Rove as Shiva. I'm tempted to shoot myself.

[SomeOtherDude]

Who said that American fascism would not come in uniform black or brown shirts, but it will be arrive with a chubby, unassuming man in glasses, wearing the GAP?

Or something like that.

[Jesurgislac]

Carib: Sadly, of course you can. Thats how the Brits won against the IRA-quiet as its kept.

No, Carib. That's how my government was losing the fight against the IRA. Repercussions from the unjust imprisonment - of both the innocent and the guilty - are still with us in Britain today.

This kind of comment - this kind of ignorant, arrogant stupidity - is just - good God, it's infuriating.

The Anglo-Irish war is drawing to a close now - or so we all hope, and certainly we are closer to peace than we have ever been - not because my government in the 1970s and 1980s bombed Belfast or Dublin - or New York and Boston - not because of the mass internments of innocent and guilty (as we established by hard dealing, it can be unjust imprisonment even if the person imprisoned is guilty), not because of the Bloody Sunday massacre and all that led to.

Because John Major, and Tony Blair after him, were willing to negotiate with terrorists when doing so was the only road to peace.

[Sebastian Holsclaw]

In the legal sense, this is not an accurate definition. Common Article 3, which seems to be the most relevent source, since the War Crimes Act refers it, says this:

"1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,"

Clearly, under the legal standard, someone who is imprisoned by the United tates can not be an active combatant against the United States. What they would do if freed is not relevent.

This is a huge unresolved problem with the war/not-war issue. If a man was an active combatant who has now laid down his arms or is otherwise been placed hors de combat, you can hold him until the end of hostilities. This could be an entire lifetime as we don't have an enemy amenable to signed surrender agreements. Is this what you are arguing for?

If it is not a war, we have to go through the regular international channels to arrest terrorists. This has never worked well.

Afghanistan didn't turn over bin Laden.

Saddam didn't turn over Abdul Rahman Yasin and wanted to use him to get the sanctions lifted (which were in place because Saddam was resisting inspections).

Abu Abbas (Achille Lauro incident) held an Iraqi diplomatic passport, was not extradited by Italy, and was allowed to escape to Yugoslavia. He was given sanctuary in Iraq until the war.

There was also a terrorist in Iraq who "committed suicide" by shooting himself in the head twice just before the Iraq war. For the life of me I can't think of a good google search to pick up the name.

My point is most defintely not that Bush is handling things well. He is not. But the current state of international law (or if you will, the state of international law and practice immediately after 9-11) is functioning really poorly with respect to terrorists who stay in places like Afghanistan, Iraq, Iran, Saudi Arabia, etc. Note that these are not all 'failed' states in the classic definition.

[Jesurgislac]

This could be an entire lifetime as we don't have an enemy amenable to signed surrender agreements. Is this what you are arguing for?

You know, this is a repeated meme from conservatives, usually ones who want to try to argue that the US is actually being quite kind to their prisoners. It goes along with the meme about "we're nicer to them that their own countries would be" and "Article 5 of the Geneva Convention doesn't really mean what it says".

All of the detainees in Guantanamo Bay are legally prisoners of war, insofar as the US (Bush and various other members of his administration) claim to have captured them "on the battlefield" (even though we know for a fact that they are lying about this). Prisoners captured "on the battlefield" are entitled to be assumed to be prisoners of war, with all the rights of the Geneva Convention relative to the treatment of PoWs, until their status is determined by a competent tribunal.

It is precisely the determining of their status that the Bush administration has been dragging their heels about, putting the US in major, multi-case breach of the Geneva Convention over the past four - nearly five - years.

Were the prisoners in Guantanamo Bay to have, as they are legally entitled to, their rights as PoWs, they would be materially better off than they are at the moment.

Were the US to actually decide to follow the Geneva Convention at long, long last, muster a competent tribunal for each prisoner, determine the prisoner's status, and act accordingly - release those who were kidnapped in countries with whom the US is not at war, bring to trial those against whom there is actual evidence justifying a trial, and treat as PoWs those for whom there is a case they are PoWs (which, for the Afghans, by now means releasing them: the US can hardly claim to be at war with Afghanistan when the US is also claiming Afghanistan as a liberated ally in the WoT) - well, then, Sebastian, it would be astonishing and wonderful.

But it won't happen under the Bush administration. Because that just resolution is exactly what the Bush administration has been refusing to do for nearly five years.

[carib]

my reply to Katherine may have been flip, but you indeed can defeat an insurgency if your tactics are brutal enough. Dont like Britain's war against the IRA as an example? Just consider Algeria. Unfortunately, there are quite a few other examples.
I say this not as a recommendation of this approach, but just to establish a fact.
Katherine is confident that we can make a case against KSM without evidence from his confession and what was obtained during the search of his premises. Im not so sure. I AM pretty sure that if the case is drpped against him for legally insufficent evidence, SOMETHING will be done.

[Jesurgislac]

Carib: but you indeed can defeat an insurgency if your tactics are brutal enough. Dont like Britain's war against the IRA as an example?

If that's your argument, you shouldn't like the Anglo-Irish war as an example - indeed, you should try to avoid the topic. Because the Anglo-Irish war proved, down the decades - and the centuries - that you cannot defeat an insurgency by brutality. You want to prove brutality, not negotiation, does the trick? You'd better hope everyone you're trying to make that argument to either forgets about how peace came to Northern Ireland, or was ignorant of it.

Now which particular Algerian insurgency are you claiming was won by brutality?

[Katherine]

I think brutality works better for governments trying to repress an internal insurgency than for foreign occupiers.

[dutchmarbel]

but you indeed can defeat an insurgency if your tactics are brutal enough. Dont like Britain's war against the IRA as an example? Just consider Algeria.

Algeria... It may have escaped your attention that the insurgents won and that Algeria is not French anymore.

[rilkefan]

Trying to remember that film _The Battle of Algiers_ - didn't the French counterinsurgency efforts in fact work, except that their brutality eroded support back home?

[Josh]

didn't the French counterinsurgency efforts in fact work, except that their brutality eroded support back home?

Define "work". Alistair Horne makes the point in A Savage War of Peace that the French managed to "win" the Battle of Algiers, in that the FLN was driven out of the city, but that ultimately all that accomplished was to set them up elsewhere (Tangiers, IIRC). The FLN was still active internationally and was still able to mount operations inside of Algeria, if somewhat less effectively than before.

[Sebastian Holsclaw]

The Palestinians have attempted to foment revolution in four countries. Lebanon, Syria, Jordan and Israel. They have succeeded in precisely one.

[russell]

I recognize that the "Type I/Type II" analysis here is something of a rhetorical device. I also recognize that your larger point is that the national character of the US is at risk.

That said:

An analysis based on utility, such as that presented by the "Type I/Type II" argument, doesn't really have a place here. We stand for fundamental human rights, or we do not. We stand for the principle that no one is above the law, or we do not.

We stand against torture, and against the imprisonment of people without representation or review, or we do not.

These things are fundamental, absolutely fundamental, to our heritage and our identity as a nation. They are not negotiable. If we stand for, or against, them only until it is difficult to do so, we do not stand for them at all. We only flatter ourselves that we do.

The argument from utility is not a seductive one. It is a convenient one, useful to people who either lack the courage and imagination needed to live by what they claim to stand for, or who don't actually stand for much of anything in the first place.

The value of moral authority is, in fact, enormous. It is the essential basis of trust, and has been a core part of our ability to persuade other nations to accept American leadership for at least the last 60 years. Nations do, as it turns out, have friends. We are losing ours.

I agree that we face an existential struggle, and agree with your understanding of what that existential struggle is. At exactly the point that you appeal to arguments of utility, rather than of principle -- rather than of what is wrong and what is right -- at exactly that point the struggle is lost.

Thank you -

[Andrew]

russell,

If your interpretation of what I wrote was that it was an argument from utility, then clearly I have failed as a writer. I'm curious how you interpreted "focus on those qualities that make our civilization worth fighting for" as an argument for utility, however.

[Kevin Donoghue]

There was also a terrorist in Iraq who "committed suicide" by shooting himself in the head twice just before the Iraq war. For the life of me I can't think of a good google search to pick up the name.

Sebastian,

You are probably thinking of Abu Nidal. However, he was a spent force and AFAIK the US had no particular interest in him, so he doesn't help your case much. The Israelis wanted him for the attack on Ambassador Shlomo Argov.

Whether to release a guerilla fighter is a practical question: will he resume the struggle or quit? Even if the war isn't over, you may have good grounds for thinking that the guy is no longer a serious threat.

[russell]

Andrew -

I believe I understood your point.

I simply had the urge to kick your straw man to bits, set fire to the pieces, and then sweep the ashes to the gutter, if for no other reason than for many, it's not a straw man at all. For many, it's a perfectly reasonable position. I do, however, understand that it is not *your* position.

I also disagree with your point on the value of moral authority. Nations can't really be in the business of selfless altruism, but that's a different thing. They can, and should, be in the business of justice, which is an ambit in which moral authority has great value.

Thank you -