Tuesday, May 3, 2011

Is the New York Times and/or Stephen L. Carter Wrong?

Ok, so this isn’t the most timely comment. I’m catching up on stuff and cleaning off my desk after meeting two big deadlines in the past month, which is why this may have been, I think, the biggest gap in posts since I started this blog way back in aught-eight.

I had flagged James Traub’s review of Yale Law Professor Stephen L. Carter’s book, The Violence of Peace: America’s Wars in the Age of Obama, in the New York Times Book Review from back in - jeez! - January. Carter apparently takes Obama to task for continuing the Bush wars without any improved adherence to the “just war” theory that is the focus of Carter’s book.

The quote in the review that caught my eye was this:
Carter observes that the Bush administration coined the term “unlawful combatant” to place America’s new adversaries beyond the reach of the Geneva Conventions.
I read that and though, uhh, doubtful. Five minutes with Westlaw found several cases from WWII and the 1950s about “unlawful combatants”.

Here’s the relevant part of one such case, Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956):

Colepaugh v. Looney

The case it cites is a Supreme Court case from WWII, Ex parte Quirin 317 U.S. 1 (1942), which says:

Ex parte Quirin

I’m no expert in this subject, but either 1) Stephen Carter is wrong - doubtful - 2) the NYT reviewer is wrong - possible - or, most likely, 3) the NYT reviewer was lazy in summarizing Carter’s statements about unlawful combatants and the Bush administration. Like all law professors, Carter is very likely a genius at grafting multiple layers of conditions and clarifications on anything he says. We have the book, and I really don’t want to read it just to find out about this, but I might have to because, based on the Traub review, Carter is absolute wrong and has completely mis-represented the Bush administration’s use of the unlawful combatant status in military law during its eight years, seven and a half of which were engaged in the war on terror, which Obama’s recent good luck in continuing Bush’s policies will probably do little to help resolve.

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